Research Paper no.19 2001-02
Accountability of Ministerial Staff?
Ian Holland
Politics and Public Administration Group
18 June 2002
Contents
Major Issues
Introduction
What are Ministerial Staff?
How Many Ministerial Staff are There?
Why the Growth in Ministerial
Staff?
Accountability and Ministerial
Staff
Parliamentary Immunities and
Ministerial Staff
The History of Attempts to Resolve
the Senate's Powers
Immunities and the case of the National Media Liaison Service
Immunities and the Case of Witnesses before the Senate Select
Committee on Print Media
Immunities and the Case of the Community Grants Scheme
Former Staff and Immunities
The Regulation of Ministerial
Staff
Should Ministerial Staff be Regulated
in any Way?
Regulating Ministerial Staff:
Overseas Approaches
Regulating Ministerial Staff: Possible Future Directions
Time to Limit Executive Immunity to
Parliamentary Scrutiny?
Why Should Ministerial Staff have
Immunity?
Postscript
Conclusion
Endnotes
Appendix 1: Answers to Parliamentary Questions
about Numbers of Ministerial Staff
Appendix 2: The UK Code of Conduct for Special
Advisers
Abbreviations
APS
|
Australian Public Service
|
CPU
|
Cabinet Policy Unit
|
DLO
|
Departmental Liaison Officer
|
FIRB
|
Foreign Investment Review Board
|
GCCS
|
Government Caucus Committees Secretariat
|
GMS
|
Government Members Secretariat
|
MMG
|
Ministerial Media Group
|
MoPS
|
Members of Parliament (Staff)
|
MP
|
Member of Parliament
|
NMLS
|
National Media Liaison Service
|
PM
|
Prime Minister
|
UK
|
United Kingdom
|
US
|
United States
|
There are regular questions raised and
complaints made about ministerial staff, partly because of the
considerable influence upon their ministers that these staff are
believed to wield. The complaints generally go to one of three
issues:
-
- the number of ministerial staff
-
- the regulation of ministerial staff, or
-
- the accountability of ministerial staff.
The first issue is mainly about the growing
numbers of staff, whether that growth is of real benefit to
government, and whether it is a hindrance to parliament or the
opposition or both. The second issue is about the lack of detail,
whether in the Act of Parliament under which staff are employed or
elsewhere, about the conditions of staffers' employment and the
parameters that govern their work. The third issue is about whether
ministerial staff represent a 'gap' in the accountability
structures of our political system or of Westminster-type systems
more generally. The number of staff is a constant topic of debate
in Senate committee estimates hearings, while the regulation and
accountability issues have been thrown into sharp relief by the
Senate Select Committee on a Certain Maritime Incident.
The three issues are closely related. For
example, there have been regular suggestions that the growth in
numbers of ministerial staff is reducing their accountability
because they are doing more and more on behalf of their ministers,
but unlike ministers do not answer to the parliament. Similarly,
there have been suggestions that more regulation of ministerial
staff would both increase their accountability and reduce the
incentive for governments to employ them in ever increasing
numbers.
Ministerial staff numbers have risen, though
perhaps not as dramatically as some have claimed. Some of the
increase is due to increasing numbers of staff serving ministers,
some is due to additional government members being allowed to have
staff, and some is due to the development of specialist units that
serve the government as a whole, rather than being attached to
individual ministers.
Ministerial staff play a wide range of useful
roles in ministers' offices, so it is not clear that increasing
numbers are a problem. Furthermore, the ratio of opposition staff
to government staff has remained fairly stable, suggesting that the
number of staff is not in itself a partisan battleground. The role
of Departmental Liaison Officers is more contentious, as their
numbers rise without any clear sense of whether this is enhancing
or detracting from the accountability of the executive for its
interactions with the public service. Nevertheless, as their
numbers rise and their role becomes more visible, ensuring
accountability becomes increasingly difficult. The obvious avenues
through which to pursue greater accountability are through
regulation of conduct, and through accountability to parliament.
There is currently little of either. To the extent that ministerial
staff have been regulated at all, it has been almost entirely to
deal with possible conflicts between their individual self interest
and the interests of their minister. None of the guidance has been
directed at problems that might arise through the ministerial
adviser's pursuit of what they perceive as the interests of their
minister or their party. Regulation, whether through law, or codes
of conduct, is more evident in the United States (US) and the
United Kingdom (UK) than in Australia.
There is an ongoing debate about whether
ministerial staff can or should in any way be answerable directly
to parliament. Normal practice in Australia (at least since the
late 1970s) has been to allow public servants, but not ministerial
advisers, to appear before parliamentary committees. The decision
to attempt to prevent advisers appearing as witnesses is based on a
premise that they are accountable to ministers, and that ministers
account for the actions of their advisers. Whether ministers
actually do so, however, is increasingly debatable. In any case,
those same arguments were used when public servants were being
prevented from appearing, a practice which has been abandoned by
both sides of politics. It seems incongruous that such
accountability arguments have been abandoned for one group of
people who answer to ministers, while being retained for another
group who also answer to ministers.
There are no known constitutional hurdles
preventing ministerial staff from giving evidence to parliamentary
committees, though governments regularly suggest that conventions
of Westminster government imply that ministerial staff answer to
the minister, not the parliament. However, while both sides of
politics have in opposition sought to assert the Senate's right to
call witnesses such as ministerial advisers, both sides have while
in government sought to resist the Senate. The conflict between the
Senate and the Executive over the appearance of witnesses and the
production of documents remains a political conflict for the most
part not adjudicated by the courts. There is little sign that the
latest foray of the Senate into this area-the Certain Maritime
Incident Inquiry-will produce any change in the status quo. The
question remains whether at least one of the major political
parties will ever be prepared to take the steps that would change
the practice that has been maintained up until now, in the way that
practice in regard to the appearance of public servants changed in
the 1970s.
Introduction
During hearings of the Senate Select Inquiry
into a Certain Maritime Incident the Federal Public Service
Commissioner, Mr Andrew Podger, remarked that 'there is a case for
some articulation of the values and code of conduct of ministerial
officers'.(1) This sort of guidance may be needed
because of what Senator Faulkner (ALP, New South Wales) referred to
as a 'vacuum of accountability' with respect to ministerial
staff.(2) Meanwhile in Victoria, State Attorney-General
Rob Hulls (ALP, Niddrie) was claiming that attempts to force
ministerial advisers to give evidence to a Legislative Council
Committee regarding alleged ministerial intervention in a public
sector recruitment process, were a 'total breach of practice and a
total breach of procedure'.(3) These various remarks
highlight the current debate about the role of ministerial staff in
our parliamentary system.
This paper is about the staffing resources
within the parliament that are available to governments,
particularly what are usually referred to as ministerial staff.
Governments employ a range of staff, most of them attached to
individual ministers, but there are also some who are members of
units that serve the government as a whole, and some who are
employed by government office holders who are not ministers (such
as parliamentary secretaries and whips). All of these will be
referred to as ministerial staff in this paper.
The paper considers three areas that contribute
to debate about whether current arrangements for ministerial staff
are adequate or whether reforms of some sort are called for. The
first area is the growth in the numbers of ministerial staff. The
second area is the accountability of ministerial staff,
particularly their accountability to parliament. The third area is
the regulation (or lack of regulation) of the people who work
directly to the government of the day.
Government ministers have access to a range of
advice and support, most importantly from the departments that they
administer. They also receive advice and support from sections of
the parliamentary departments, such as the Houses' parliamentary
committee secretariats and the Library's Information and Research
Services. Although one of their principal sources of advice has
been their department and in particular the departmental secretary,
in recent decades ministers have increasingly sought advice from
other sources.(4) One of these sources has been the
ministers' offices and other executive support units within the
parliament but which lie outside both the Australian Public Service
(APS) and the Parliamentary Service.
There typically will be three types of staff
working for ministers. Ministers will have their own staff that
assist them in performing their ministerial duties. They will
generally also have Departmental Liaison Officers (DLOs), who are
staff seconded from ministers' departments to play facilitative
roles in ministers' offices. Finally, ministers, like every member
of parliament, will have electorate staff, who generally do not
work in the ministerial office. Ministers' electorate staff are
allocated on the same basis as for all other members of
parliament.
Ministerial staff are employed under Part III of
the Members of Parliament (Staff) Act 1984 (MoPS
Act).(5) The MoPS Act also allows for the employment of
consultants by Ministers (Part II). Not all MoPS Act staff are
attached to individual ministers: some work for government support
units, the first of which was established at least a quarter of a
century ago.
There is a growing diversity of staff employed
within ministers' offices. There are many different position titles
and duties, as well as different bases for employment. Some of the
different types of staff include:
-
- policy advisers
-
- media advisers
-
- personal assistants and secretaries
-
- consultants (people working for Ministers on contracts under
the MoPS Act), and
-
- the electorate staff of ministers.
While many staff are employed by, and work
directly for, individual ministers, there are others who also to
varying degrees contribute to supporting the executive
function:
-
- offices funded under the MoPS Act that are not tied to
individual ministers (such as the National Media Liaison Service
(NMLS) under the Hawke Government, or the Cabinet Policy Unit (CPU)
under the Howard Government)
-
- the staff of parliamentary secretaries
-
- the staff of government whips and leaders (other than
ministers), and
-
- DLOs.
There have also been changes and diversification
in the types of staff working in ministers' offices. The
nomenclature has changed: from private secretaries to advisers, and
from press secretaries to media advisers.(6) There has
been some diversification in the work of ministerial staff,
reflected in a growing range of position titles. Thus over the last
two decades we have seen the emergence, for example, of research
officers and parliamentary liaison officers.(7)
Advisers come to the job from a range of
backgrounds and for a range of reasons.(8) A significant
number have been public servants, brought into ministerial offices
because of their expertise. Some of them have had partisan
allegiances; many have not. Some advisers have been political party
members, and indeed a few of those have seen working as an adviser
as a step toward their own political career, as will be seen below.
Paid advisers in government sometimes began their careers as unpaid
volunteers in opposition. Others have been recruited from academia
to bring particular views, analyses or agendas to bear on the task
of government.
Within this overall milieu, ministerial advisers
have become important participants in the policy process, playing a
range of policy roles.(9) Ministerial staff have long
been regarded as facilitating the relationship between department
and minister. Their place in government has however expanded
significantly over the last twenty years to the point where they
occupy a range of key roles. In 1976, it was possible for an
analyst to conclude that 'their part in the policy process is
essentially limited and confined'.(10) In 1986 the view
was that their role was rather broader than that, though they were
still referred to as 'a bit-player in a group
enterprise'.(11) Emphasising the collective nature of
the policy-making endeavour, James Walter concentrated on
articulating the range of roles that the many advisers in
ministers' offices played. That range was significant, and in
particular was broader than just assisting relations with the
bureaucracy: it extended to dealing with relations with other
stakeholders such as the party, and to having input into policy
debates.(12) By 2000, Maria Maley was commenting that
advisers in the Keating government 'could play significant roles in
policy-making', a view confirmed by the public servants and
ministers whom she interviewed.(13) The view of the
Clerk of the Senate was similar, arguing that:
They are said to and seen to:
-
- control access to ministers, and determine who has that
access
-
- determine the flow of information which reaches ministers,
particularly information flowing from departments and agencies
-
- control and regulate contact between ministers and other
ministers, other members of the Parliament and departments and
agencies
-
- make decisions on behalf of ministers
-
- give directions about government activities and actions,
including directions to departments and agencies
-
- manage media perceptions and reporting.(14)
Playing these many roles, it is easy to see them
emerging as 'influential actors at the summit of the core
executive'.(15) But for how long have they been
there?
There have always been personal ministerial
staff whose influence on their masters has not gone unremarked.
While in 2002 attention might have been focussed on advisers to the
Defence Minister,(16) in 1997 it was on the Prime
Minister's staffers, Fiona McKenna and Grahame Morris, for their
role in the travel rorts affair.(17) In 1995 the focus
was on David Epstein and the staff he managed in the National Media
Liaison Service.(18) In 1982 it was the staff of the
Government Information Unit who were topics for
debate.(19) In 1974-5 it was Junie Morosi who was the
centre of attention, because of innuendo about her relationship
with her boss Deputy Prime Minister Jim Cairns, and because 'she
was that most disturbing thing-a woman with
influence'.(20) In 1969 it was Ainslie Gotto, who as
private secretary to the Prime Minister was resented for what was
perceived as her zealous approach to her gatekeeping role-and,
again, for being a woman.(21)
Advisers often seem influential if not
controversial, and some have important public careers both at the
side of a minister and in their own right. There was Tony Eggleton,
press secretary to Menzies, Holt and Gorton, later federal director
of the Liberal Party, who was for years 'one of the most
influential behind-the-scenes figures in Australian
politics'.(22) Peter Wilenski was Whitlam's Principal
Private Secretary, went on to be a departmental secretary, and
professor of management and was influential in Australian public
service reform.(23) Whitlam's Senior Adviser Jim
Spigelman was briefly a departmental secretary in 1975, went on to
be a prominent lawyer, and became NSW Chief Justice in
1998.(24) A range of other Whitlam government advisers
went on to federal political careers of their own, including Gordon
Bilney, Wendy Fatin, and Chris Schacht.(25) David Kemp,
the Director of Malcolm Fraser's office, was a former academic who
influenced liberal thought in the 1970s and 1980s and went on to a
prominent parliamentary career of his own.(26) Cliff
Walsh and John Hewson also worked in Fraser's office, where their
role (together with public servant Ed Visbord) in framing the 1982
budget led them to be described as 'the nation's most influential
economic think-tank'.(27) John Hewson also went on to
become federal parliamentary Liberal Party leader in 1990. Michael
Costello was an adviser to Foreign Affairs Minister Bill Hayden and
went on to be secretary of the Departments of Industrial Relations,
and Foreign Affairs and Trade, as well as being an influential
adviser to opposition leader Kim Beazley in the late
1990s.(28) Ross Garnaut, an adviser to Bob Hawke, became
Australia's Ambassador to China, and a major contributor to
Australian international economic policy. Hawke staffers were
considered to have 'a substantial influence on [Hawke's] policy
positions', and included Peter Barron, referred to as a member of
'the Gang of Four'(29) (the other three being the Prime
Minister, the Treasurer and powerful NSW Senator Graham
Richardson); Barron had also been an adviser to NSW Premier Neville
Wran.(30) Don Watson, speechwriter to Paul Keating,
reported at one point that some cabinet ministers 'complained that
Keating's inner office was driving policy'. (31)And
indeed, when Keating's senior adviser Don Russell announced he was
going to resign, Watson thought 'it was not possible to think of
anyone else capable of providing the Prime Minister with the
support he needed' at that time.(32)
It is a matter of conjecture whether advisers
are always as influential as is sometimes suggested or whether
they, as one former adviser put it, merely 'enjoy a very privileged
position in politics: they get to stand very close to the action,
but they rarely get hurt'.(33) The evidence certainly
suggests that some individuals have exercised great influence on
some political leaders, at certain times. However, there has also
been a perception of growing influence of advisers in general,
suggesting that '[t]he ministerial adviser has been one of the most
prominent additions to executive branches over the last two
decades'.(34) As the numbers and perceived influence of
advisers have grown, so their role has become more controversial.
This has for many years been most clearly reflected in regular
complaints (though not from the government of the day) about the
increasing size of ministerial staff.(35) It is not
however a simple task to say how many staff there are.
Several different approaches can be taken to
measuring the number of ministerial staff (as can be seen in
Appendix 1 on Answers to Parliamentary Questions about Numbers of
Ministerial Staff). The results vary according to whether one
relies on staff directories or answers to parliamentary questions
as the source of data. The results also fluctuate according to
which of the many categories of staff listed above are included.
Some analysis has focussed specifically on the use of 'advisers',
while others base their remarks on all staff, including those, such
as electorate staff, who arguably have nothing to do with
ministers' executive responsibilities.(36)
Many questions have been asked in the Parliament
about the numbers of ministerial staff, but it is difficult to
compare the answers, because of the way the questions have been
put. For example, in 1999 Mr Andren (Independent, Calare) asked a
question about the number of staff employed by ministers. As a
result, the answer excluded the staff of parliamentary secretaries,
but included electorate staff. Later that year Senator Faulkner
asked a question about the 'ministerial staffing establishment
under the MoPS Act' and specifically asked that the data cover
parliamentary secretaries(37). Senator Faulkner's choice
of words meant that electorate staff were separated out in the
answer. The answer to Mr Andren's question included electorate
staff and excluded staff of parliamentary secretaries, while the
result was the reverse for Senator Faulkner's question. Thus the
numbers in the two answers cannot be directly compared. Similarly,
some questions have resulted in answers that include vacant
positions, while others have excluded vacancies, instead referring
only to numbers actually employed, and some examples of this
variation can be seen in the Appendix 1.
Comparisons are made more complicated by the
difficulty of establishing what responsibilities each staff member
has in practice. All MPs are allocated three electorate staff, for
example, but some MPs, including ministers, may employ some in
their Canberra offices, while other ministers use their entitlement
to advisers to employ extra staff in their electorate. Under the
Keating Government in 1995, the number of ministers' staff actually
recorded in the Ministerial Directory as 'electorate
officers' ranged from zero to five; under Howard in 1999, it ranged
from one to five. Even setting aside this apparent variation in
numbers, there would obviously be occasions on which it would be
difficult to draw a clear line between what constituted work for
the member as a local representative, and work for the member as a
minister.

Figure 1 is based on answers to parliamentary
questions about ministerial staff. It is confined to answers which
gave numbers of staff for ministers (excluding parliamentary
secretaries) including support staff, as long as they were employed
under the MoPS Act (or equivalent, prior to 1984). The figures
exclude the staff of all special units (such as the NMLS, CPU,
Government Information Office, Government Members Secretariat,
etc.) and consultants.(38) (Appendix 1 to this paper
contains full details of the figures used here.)
Figure 2 focusses on advisory capacity, and in
contrast to the previous figure is based on information contained
in the Ministerial Directories. It shows three sets of
numbers. The right bars show the number of staff described as
ministerial advisers (other than media advisers).(39)
The middle bars show the numbers of ministerial staff, excluding
DLOs (for which data was not available prior to the late
1980s).(40) This includes media advisers and
administrative support staff. The left bars show government staff
support more broadly: they add in the staff of parliamentary
secretaries as well as of ministers; the DLOs as well as the staff
employed under MoPS.(41) All of the estimates in Figure
2 exclude staff not attached to individual ministers.

The figures show several trends:
-
- The growth in staff providing support to the government has not
had a clearly partisan character: the rise and fall in numbers has
had more to do with parliamentary reforms, and Prime Ministerial
preferences.(42) The Fraser Government maintained the
same sorts of levels of staff as the early Hawke Governments. The
current Howard Government is maintaining similar staffing levels as
the last Keating Government.
-
- The available data suggest also that governments of all
persuasions increase the numbers of staff as their period in office
lengthens. This is true for the Fraser, Hawke, Keating and Howard
Governments (adequate data are not available for the Whitlam
Governments).
-
- Although advisers have increased in number, growth has come in
other areas, including administrative staff, and an increase in the
number of electorate staff available to all MPs (from 2 in the
1980s to 3 in the 1990s). There are now also more DLOs than ever
before.(43)
-
- One of the important drivers of growth has been the growth in
the number of parliamentary office holders who are allowed to
recruit staff under Part III of the MoPS Act.
There are three main ways in which support for
the government of the day has been expanded. The first is the
creation of parliamentary secretaries and the use of increasing
numbers of staff to support them. The second is the increasing use
of DLOs. The third is the use of ministerial support units,
particularly in the media area, that are not tied to individual
ministers. It is worth noting that the number of ministers has
changed only slightly in recent times, and so has not been a major
factor in the changes to the size of ministerial staff (Figure
3).

Parliamentary secretaries undertake tasks
delegated by a minister and are able to take the role of the
minister in the Parliament in almost all respects.(44)
The role of parliamentary secretary forms a 'third tier' of
executive government, augmenting the system of portfolio and
non-portfolio or assistant ministers.(45) They are not a
new invention. In Australia, parliamentary secretaries have been
appointed as far back as the Lyons ministry in 1938,(46)
and in Canada they date back at least to 1916.(47) The
office was formalised through the Fraser Government's
Parliamentary Secretaries Act 1980 and Fraser appointed
three parliamentary secretaries: to the Prime Minister, the
Minister for Primary Industry, and the Treasurer.(48)
Hawke also appointed three parliamentary secretaries after the 1987
election,(49) and four after the 1990 election. The
position became a more important part of the parliamentary
landscape in the early 1990s, when the Parliament formalised the
duties of parliamentary secretaries,(50) and Keating
lifted the numbers from four to eight.(51) This grew to
10 and then 12, and with the growth in the number of parliamentary
secretaries has come a growth in their staff. In December 1990,
only one parliamentary secretary had any additional staff at all,
but by October 1991 a pattern was established that has essentially
continued since, with each parliamentary secretary's office having
two advisers, as well as a DLO.(52) Compared to 15 years
ago, there are thus now at least 24 additional MoPS staff working
for the parliamentary secretaries.(53)
DLOs are staff of departments who work in
ministers' offices with 'responsibility for facilitating liaison
between the minister and the department or agency'.(54)
DLOs come from Ministers' departments, but also from major
statutory agencies for which a minister may have responsibility,
e.g. AusAID, the Aboriginal and Torres Strait Islander Commission,
or the Public Sector and Merit Protection Commission. Their
salaries are paid by their Departments, so the appointment of a DLO
to a minister's office does not significantly affect the
ministerial budget. The use of DLOs in government offices has
progressively expanded over recent decades. Before the late 1980s,
the use of DLOs was uneven, and they were present in relatively
limited numbers. The Whitlam Government, for example had 19, with
some ministers having two and others none at all.(55) By
1993 however the Keating Government had attached to its ministerial
offices 53 DLOs,(56) while in December 1998 there were
69.(57) They are distributed in general on the basis of
two in the offices of portfolio ministers, and one in the offices
of non-portfolio ministers and parliamentary
secretaries.(58)
There are further ministerial staff not shown in
Figures 1 and 2. These include staff with media-related functions.
Each government has arranged its media and information functions
differently. All governments employ media advisers in individual
ministers' offices. Some governments have had units for gathering
or disseminating information about government programs: the
Government Information Unit (under Fraser) and the NMLS (under
Hawke and Keating). The Fraser ministry employed far fewer press
secretaries in individual ministers' offices, but also had the
Government Information Unit, which comprised two Canberra-based
staff and another in each capital city.(59) The Keating
ministry in 1994 had 17 media advisers plus 15 members of the
Ministerial Media Group (most of them performing essentially the
same functions as ministerial media advisers) and 12 media officers
in the NMLS.(60) The Howard ministry in 1999 had 34
media advisers, plus a media unit within the PM's office with six
staff,(61) but no official organisation to parallel the
NMLS.(62)
In addition to media staff, governments have had
staff providing other additional administrative or coordinating
support. These have included the Government Caucus Committees
Secretariat (GCCS) under Labor, the CPU under Howard, and the staff
allocated to Government Whips. This last category has grown
steadily: there were two such staff in 1991, but by 1998 this had
grown to eight.(63) The Howard government has also
synthesised some of the functions of Labor's GCCS and NMLS in its
Government Members' Secretariat (see endnote 62 for more
detail).
Another feature embedded within these figures
has been the growth of the Prime Minister's office, sometimes
independently of broader trends (Figure 4). Whitlam's office had 21
staff, while Fraser's office had 23, despite his overall reduction
in the number of ministerial staff.(64) Hawke's office
ranged from 16 shortly after the election that brought Labor to
power, up to 24 by 1990. Under Keating the office had 30 staff,
while under Howard it grew to 37, although Howard's ministry had
only a marginally larger staff profile overall.(65)
James Walter's view in the 1980s was that the institutionalisation
of ministerial staffing was 'serving as another mechanism to assure
prime ministerial pre-eminence', and the continued growth of the
office since that time lends weight to this
assessment.(66)

The final significant trend has been the
increasing seniority of the staff profile of ministerial advisers.
The first move to give ministerial staff higher status was, again,
made by the Whitlam government, which ensured that 'the gradings
given to these ministerial officers were more senior than those
that had applied to ministerial staff in the traditional
system'.(67) Fraser advanced this trend further, despite
the fact that he cut total numbers of ministerial
staff.(68) Under Hawke, the seniority of ministerial
staff was further underlined by a reclassification and
restructuring exercise, while there was some evidence that the
system of consultants was used to increase levels of
pay.(69) This trend continued steadily from then on,
with the proportion of ministerial staff occupying the top two
classifications rose from 12.7 per cent in 1988 to 18.7 per cent in
1999.(70)
One question raised by the progressive expansion
and diversification of ministerial staff is the appropriate
relationship between the numbers of staff available to the
government and those available to the opposition and other parties.
Interestingly, in contrast to the change that has taken place in
executive staffing, there has been considerable stability in the
relationship between government and opposition staffing levels. A
convention has developed that a set ratio exist between government
and opposition staff, that has meant that changes in the numbers of
government staff would be reflected in the opposition's staffing
establishment. That ratio has been described as the opposition
having 21 per cent of the government's staff
numbers.(71) That calculation has been made as a
proportion of all government staff employed under the MoPS Act:
that is, the staff of parliamentary secretaries, whips, and special
units such as the Cabinet Policy Unit, not only the staff of
ministers. This removes any incentive to change the designations of
staffers to take them out of the base for calculating the staff
entitlements of the opposition. It has however added to concerns
about the growing numbers of DLOs and graduate administrative
assistants, two types of personnel who are not included in the base
for determining opposition staff levels (because they are not
answerable directly to ministers).(72) Allaying these
fears will depend on maintaining a reasonable level of transparency
around the allocation of DLOs and on whether oppositions can be
confident that they are not performing partisan political tasks for
their minister, particularly toward election time.
Significant growth in the numbers of ministerial
staff has been closely related to the growing importance of their
place in the machinery of government.(73) In Australia,
the watershed in the development of executive staffing is generally
regarded as the election of the Whitlam government, brought to
power after 23 years of conservative rule.(74) Academic
Bob Smith described the impetus in these terms:
The change of government brought to office a
party long in opposition and impatient to use the machinery of
government to implement party policy. The policy ambitions of party
enthusiasts were pitched high. However the length of time since the
last change of government had allowed knowledge and understanding
of transitional procedures to become dim. Moreover among leading
members of the governing party, perceptions of the capabilities and
roles of the public service were mixed. They ranged from firm
belief in the competence and adaptability of the service to
suspicion and pervasive distrust.
Out of this emerged a concern for strengthening
the hands of ministers in their working relationships with members
of the public service. Changes in the size and functions of
ministerial offices were part of a series of proposals for
increasing the effectiveness of the party in
government.(75)
It is sometimes remarked that governments turn
to ministerial staff because of suspicion of the public service, a
claim made about the Whitlam, Hawke and Howard governments. Yet the
figures above show that recent governments (apart from that of
Whitlam) cut the numbers of ministerial staff on taking office,
while amongst Whitlam's staffers, the majority either were or had
been public servants, while very few had worked for shadow
ministers when Labor had been in opposition.(76)
Evidence such as that reported by Smith, above, suggests
governments have had concerns about public sector responsiveness,
but not particularly of a partisan nature. As former Whitlam
adviser Michael Sexton wrote:
It should be re-emphasised at this point that
the problem was not, as a rule, that the bureaucracy was
deliberately obstructing the programs of a Labor administration
because of an ingrained conservative bias. It was rather that, as a
large institution ... the bureaucracy could only be directed
towards the priorities of the government by clear and considered
ministerial directions.(77)
Governments have wanted staff who understand
their party and its agenda, and who are perceived as free to be
more responsive to government demands than the public service. They
have also wanted to diversify the sources of advice upon which they
rely.(78) All of these reasons have driven the growth of
the ministerial office.
Questions about the number of staff also reflect
other concerns about the best ways to organise government within
the parliamentary system. Take for example the increase in staff
numbers as a result of the development of a system of parliamentary
secretaries. The position of parliamentary secretary arose from a
desire to spread the workload of ministers, and to develop the
skills of future ministers. This development has bipartisan
support, but the only ways to prevent it increasing staff numbers
would be to give these MPs no support, or to cut other ministers'
staff. Neither of these is an attractive option, and there has thus
been a growth in the total numbers of staff.
Similarly, the growth in numbers of DLOs may
reflect another strategy that seeks to make executive government
more effective by enhancing the links between ministers offices and
the APS. Prime ministers from Whitlam to Howard have expressed
their commitment to ensuring the responsiveness of the public
service. Both sides of politics have pursued this through
legislative reform and through employing public servants as
advisers (Howard once described them as 'ideal'
staffers).(79) Bolstering the departmental presence in
ministers' offices through increasing the numbers of DLOs has been
another way of enhancing executive capacity to steer the state by
bringing departmental officials into ministers offices where then
can assist in the administration of portfolio workflows.
Nevertheless, as mentioned above, the growth in the use of DLOs has
not been uncontroversial. The opposition for example has appeared
concerned that the DLOs are effectively being used to expand
ministerial staff resources.(80) There has however been
very little examination of what effects their increasing numbers
are having. It may be that their impact on lines of accountability
and reporting are more important than their contribution to
swelling the numbers inhabiting the executive wing of parliament,
and it may well be that those impacts are positive rather than
negative. It is however a debate that is still to take place.
An alternative view about the growth in
ministerial staff suggests that it has protected the public service
from governments that have periodically considered politicising its
upper echelons.(81) By giving ministers more staff who
can be primarily concerned with the partisan politics of issues, it
lessens their need to ensure the political responsiveness of the
departmental heads. Seen from this perspective, the 'right' number
of ministerial staff might be whatever is necessary to satisfy
governments that a balance is being struck between
politically-responsive staff and policy-impartial staff in
providing support to the government.
The main issue that has arisen, however, as the
numbers and profile of ministerial staff have grown, is their
accountability in our system of government.(82) There
are two aspects to this issue: the relationship between parliament
and ministerial staff and the regulation of people employed under
the MoPS Act.
In the Australian parliamentary system the
greatest scrutiny of government actions tends to take place in the
Senate, particularly in its committees, rather than on the floor of
the House. There are three reasons for this. First, the Senate
often grants its committees considerable powers to obtain documents
and call witnesses.(83) Second, the government seldom
has a majority of Senators on select committees established to
inquire into controversial matters. A recent example (relevant to
the questions discussed in this paper) is the Select Committee on a
Certain Maritime Incident, comprising eight Senators, of whom only
three are members of the Coalition government parties. Third, the
Senate committees give opposition and minor party representatives
their most comprehensive opportunity to examine ministers and
witnesses regarding the machinery of government.
Parliamentary Immunities and
Ministerial Staff
Political scandals or controversies often result
in Senate scrutiny of the actions of a government and its
ministers. It is in this context that questions most often arise as
to whether ministerial staff can or should be able to be called to
account to the parliament through the Senate's committees. This
debate revolves around political questions of the determination of
the Senate to interrogate the executive and constitutional-legal
questions about what is variously referred to as 'executive
privilege' or 'public interest immunity'.(84) In
practice, following the directions of their ministers, ministerial
staff of governments of all political persuasions have declined
requests from parliamentary committees that they appear to give
evidence, though there have been rare exceptions, and much debate
about this, discussed below. This has led to the claim that
ministers' offices are 'accountability-free
zones'.(85)
To understand the debate about the appearance of
ministerial staff as witnesses before the Senate or its committees,
one needs to begin by understanding the Senate's powers. In
general, the powers of the houses of parliament are extensive, and
have their roots in s. 49 of the Constitution, which states
that:
The powers, privileges, and immunities of the
Senate and of the House of Representatives, and of the members and
the committees of each House, shall be such as are declared by the
Parliament, and until declared shall be those of the Commons House
of Parliament of the United Kingdom, and of its members and
committees, at the establishment of the Commonwealth.
Those powers include the capacity to summon
almost anyone to appear as a witness, and to order that almost any
document be made available.(86) The powers under s. 49
have been refined by a 'declaration' within the meaning of that
section, in the form of the Parliamentary Privileges Act
1987, however the scope of the powers remains essentially
unchanged.(87) This does not however mean they are
either unambiguous or uncontroversial.(88)
The Senate's powers tend rigorously to be
asserted by the opposition of the day, and resisted by whomever is
in government. Indeed, Odgers' Australian Senate Practice
takes as its starting point for this topic a declaration that was
passed by the Opposition-controlled Senate in 1975:
(1) That the Senate affirms that it possesses
the powers and privileges of the House of Commons as conferred by
section 49 of the Constitution and has the power to summon persons
to answer questions and produce documents, files and papers.
(2) That, subject to the determination of all
just and proper claims of privilege which may be made by persons
summoned, it is the obligation of all such persons to answer
questions and produce documents.
(3) That the fact that a person summoned is an
officer of the Public Service, or that a question related to his
departmental duties, or that a file is a departmental one does not,
of itself, excuse or preclude an officer from answering the
question or from producing the file or part of a file.
(4) That, upon a claim of privilege based on an
established ground being made to any question or to the production
of any documents, the Senate shall consider and determine each such
claim.(89)
The key points embedded in this declaration are
first that the Senate can summon any person (including those
serving the government of the day), and second that it is for the
Senate itself to determine the validity of claims of privilege or
public interest immunity. On their face, these statements indicate
that ministerial staff, like public servants, may be required to
give evidence before the Senate or any of its committees on which
it confers these powers. However, as Odgers' Australian Senate
Practice goes on to point out:
[w]hile the Senate has not conceded that claims
of public interest immunity by the executive are anything more than
claims, and not established prerogatives, it has usually not sought
to enforce demands for evidence or documents against a ministerial
refusal to provide them.(90)
Thus while the Senate claims the power to compel
anyone, including ministerial staff, to appear before it as a
witness or to furnish it with documents, the Senate's capacity to
exercise that power against the objections of the executive arm of
government have not been fully tested.(91) The practice
that has tended to prevail is that articulated by then Senator the
Honourable Bob McMullan (ALP, Australian Capital Territory) in
1995, when as Minister for Trade he argued that 'ministerial staff
are accountable to the minister and the minister is accountable to
the parliament and, ultimately, the electors'.(92) This
'McMullan principle' is also the approach advocated by the Labor
government in Victoria, which ordered its ministerial advisers not
to give evidence to the Legislative Council Select Committee on the
Urban and Regional Land Corporation Managing
Director.(93)
On several occasions, the dissolution of
Parliament has prevented the full extent of the Senate's resolve on
this question from being revealed. In 1975 the Labor Government
rejected Opposition attempts to compel certain public servants to
give evidence before the Senate.(94) The Privileges
Committee divided on party lines over the issue, but Parliament was
prorogued before the matter was tested on the floor of the Senate.
In 1977, a motion moved by government Senator Reginald Wright
(Liberal, Tasmania) to have the Senate endorse the position taken
by the (then) Opposition senators in 1975 also lapsed upon
Parliament's prorogation.(95) In 1982, when Labor (now
in Opposition) sought to enforce the production of certain
documents, the Coalition Government indicated it would take the
question of the Senate's powers with respect to the executive to
the High Court for resolution. But again, an election (and a change
in government) intervened. Both sides of politics have while in
opposition sought to assert the Senate's right to call witnesses
such as ministerial advisers. Both sides of politics have while in
government sought to resist the Senate. The conflict between Senate
and executive over the appearance of witnesses and the production
of documents thus remains a political conflict for the most part
not adjudicated by the courts.(96)
The standoff that developed in 1975 between the
Whitlam Government and the Senate over the appearance of public
servants is well known.(97) On that occasion, several of
Whitlam's ministers directed their departmental secretaries to
decline to answer questions when called before the Senate. The
departmental secretaries duly did so.(98) The agreement
that has since developed that allows public servants to give
evidence is also well understood, having been to some extent
formalised in a detailed set of government guidelines for official
witnesses.(99) What is less widely known is that on at
least two occasions a person employed under the MoPS Act has
appeared before a Senate Committee. In 1989 the head of the NMLS,
Mr Colin Parks, appeared voluntarily before Senate Estimates
Committee D, during which he was questioned extensively about the
operations of the Service.(100) In 1995, the head of the
NMLS, Mr David Epstein,(101) appeared before the Finance
and Public Administration Legislation Committee. On that occasion
Mr Epstein appeared following a resolution of the Senate directing
him to appear to give evidence, after the Minister for Finance had
refused to allow him to appear.(102) The resolution of
the Senate was moved by the Opposition, and supported by the
Australian Democrats (who held the balance of power) with some
reluctance.(103) Both the Opposition and the Australian
Democrats were at pains to indicate the resolution was confined to
the NMLS because, unlike other units and individuals employing MoPS
staff, its stated purpose was not party political: it was to
provide 'accurate and timely information on government
policies'.(104) Their view was that if this was the
case, it should be subject to the scrutiny of the estimates
hearings. In this respect the Senate's willingness to pursue NMLS
in estimates hearings was also based in part on some critical
comments made by the Auditor General:
NMLS is therefore not subject to the normal
accountability mechanisms in place over Government programs. As a
consequence, although NMLS is fully funded by the taxpayer and its
stated roles and functions are predominantly administrative in
nature, its operations are not subject to the scrutiny normally
associated with the expenditure of public
monies.(105)
The Opposition's interest in NMLS was also a
result of their belief that the government was using the unit to
target them through the media.(106) The leader of the
Australian Democrats, Senator Kernot (Queensland), defended her
party's support of the Opposition's motion on several grounds.
First, she argued that they were not seeking to question
ministerial staff in the normal sense: it was the unusual nature of
NMLS's responsibilities that opened it up to scrutiny. Second, she
anticipated that units such as NMLS might be subject to audit in
future under regulations that could be promulgated pursuant to a
new audit bill, making inquiries by a Senate committee superfluous
in future. Third, she pointed out the whole incident might never
have arisen had the government responded to the Pearce report
prepared in the wake of problems with the allocation of Pay TV
licences (that involved ministerial staff in office of the Minister
for Communications).(107) Nevertheless, Senator Kernot
worried:
[w]e have seen from experience here that once
something is done, irrespective of the assurances given-I
acknowledge Senator Kemp's assurances-people with other motivations
can always point to the precedent. Down the track, who will
remember the facts of this debate and the assurances that were
given?(108)
Government Senator McMullan shared Senator
Kernot's concern about calling the NMLS head before a Senate
committee.(109) At the start of the estimates committee
hearing in 1995, he commented 'I do want to put on the record how
strongly I disagree with this process ... with the decision of the
Senate to require the attendance of a ministerial staff member
under the Members of Parliament Staff Act. I think it is a
precedent that many people will regret before this is
over'.(110) Nevertheless the hearings went ahead.
In late 1993 the Coalition and Australian
Democrats combined in the Senate to initiate an inquiry into
suggestions that the government had given undertakings to foreign
media proprietors regarding ownership of Australian media assets,
and to examine the role of the Foreign Investment Review Board
(FIRB) in media ownership decisions.(111) The Senate
Select Committee on Certain Aspects of Foreign Ownership Decisions
in Relation to the Print Media sought evidence from former
government ministers, public servants and members of the FIRB. The
Committee became involved in a protracted wrangle about gaining
access to documents that the government asserted contained
commercial-in-confidence information. In the course of arguments
about the various issues, it sought a number of legal opinions. One
of these concerned whether members of the FIRB, believed to be
'paid advisers to government' and to be 'neither public servants
nor statutory office holders' could be compelled by the Committee
to appear as witnesses. The Advice of Mr David Jackson QC was that
'there is no reason why [such a witness] might not, by the
procedure of Standing Order 34, be required to attend to give oral
evidence'.(112) The individuals in question did indeed
appear before the Committee,(113) though not as a result
of a Senate order, and with their evidence constrained by their
decision to comply with directions made to them by the Treasurer
regarding what evidence to divulge.(114) The Senate
chose not to further pursue them regarding evidence.
Senator Kernot's concerns about the NMLS case
were not without foundation. A year earlier, the Opposition had
sought to question staffers as part of a proposed Senate inquiry
into the Community Grants Scheme administered by Minister for the
Environment, Sport and Territories, the Honourable Ros Kelly (ALP,
Canberra). There were two notable features of the Opposition's
proposal. It was proposed to examine ministerial staff as
witnesses, although the minister had accepted responsibility for
the failures of her administration, and resigned. Despite this,
commenting on the failure of the House of Representatives Standing
Committee on Environment, Recreation and the Arts to call a member
of the Minister's staff as a witness, Senator Hill (Liberal, South
Australia) remarked 'he obviously should have been required to give
evidence'.(115) The Opposition also proposed to appoint
a Commissioner, 'who is or has been a judge of a superior court, or
is or has been a Senior Counsel', to assist the Committee, which
would have been most unusual.(116) The inquiry did not
eventuate, but the Opposition had indicated that they believed
there were circumstances well beyond those of the NMLS case in
which the examination of ministerial staff by parliamentary
committees would be appropriate.
Adding to the complexity of the issue of the
accountability of ministerial staff is the question of the status
of different categories of individuals, apart from current public
servants and ministerial staff. In particular, how should former
ministerial staff and indeed former ministers be treated? Prime
Minister Howard has argued that the 'convention' enunciated by
Senator McMullan in 1995 'applies to people who may now be back in
the Public Service but who were previously employed in a minister's
office, particularly if they were employed under the MoPS
Act'.(117) The Westminster conventions of government and
parliamentary practice in Australia, however, really have nothing
to say about former ministers or their staff. Indeed, former
ministers have been summonsed by, and appeared before, a Senate
Committee. In 1994, former ministers Mr Kerin and Mr Hawke
responded to the summons of the Senate to appear before the Select
Committee on Certain Aspects of Foreign Ownership Decisions in
Relation to the Print Media.(118) They objected to
appearing but in no way disputed the Senate's power to compel them
to give evidence.(119) The silence of Westminster
conventions with regard to former officers has also been
highlighted in a quite different context: the lack of any
regulation or guidance on the employment of former ministers in
areas related to past portfolio responsibilities.(120)
Mr Howard's remark about former staff is understandable. If one is
going to adhere to the principle that the actions of ministerial
staff are the responsibility of the minister, then the current
minister must arguably bear responsibility for the actions of
former staffers.(121) This indeed appeared to be the
approach taken by Howard Government ministers in their evidence to
the Senate Select Committee on a Certain Maritime
Incident.(122) It remains to be seen however whether
people will be convinced that having ministers account for the
actions of the staff of their predecessors will be regarded as
adequate.
It may be that one reason that the
accountability of ministerial advisers is such an issue is that the
conduct of ministerial staff is mostly unregulated. Under the MoPS
Act, the Prime Minister establishes conditions of employment for
all ministerial staff, on an individual basis. The Act does not
require those conditions to take any particular form (though in May
2002 the Minister Assisting the Prime Minister for the Public
Service Tony Abbott claimed that 'Ministerial staff agreements
already require advisers to act with skill, discretion and
integrity').(123) Ministerial staff are not subject to
any equivalent of the Australian Public Service Code of Conduct
that govern public servants under the Australian Public Service
Act 1999, or the Parliamentary Service Code of Conduct
governing parliamentary employees under the Parliamentary
Service Act 1999.(124) There is no direct
equivalent for staffers of the Australian Public Service Values
that establish norms to underpin the way staff approach their
work.
The main guidance given to ministerial staff
lies in the Prime Minister's Guide on Key Elements of
Ministerial Responsibility.(125) Section 9 of the
Guide concerns 'ministerial staff conduct'. Most of its
content pertains to conflict of interest issues. The Guide
indicates for example that:
Members of staff must divest themselves, or
relinquish control, of sensitive interests such as shares or
similar interests in any company or business involved in the area
of their minister's portfolio responsibilities.
Members of staff should not contribute to the
activities of interest groups or bodies involved in lobbying the
government, if there is any possibility that a conflict of
interests or the appearance of such a conflict may arise.
Gifts, sponsored travel or hospitality should
not be accepted if acceptance could give rise to a conflict of
interests or the appearance of such a conflict.(126)
In addition, ministerial staff have been
required to disclose private interests for some
time.(127) The Guide has not been without practical
effect. The most prominent example of its operation was in 1998,
when Federal Resources Minister Senator Warwick Parer sacked one of
his advisers, Mr Bob Baudino, for holding shares in breach of the
Ministerial Guide.(128)
None of the guidelines contained in the Guidance
on Caretaker Conventions are addressed specifically to ministerial
staff. There are details on conduct of public servants, and some
points specifically concerning DLOs. The guidelines mention limits
to the provision of advice by the APS to ministers. Interestingly,
the only explicit reference to ministerial staff states that, if
there are any doubts about the appropriateness of responding to a
ministerial request, 'agencies should discuss with the Minister
or his/her senior staff the purpose for which the material
is to be used' (emphasis added).(129) Far from
restricting their activities, the guidelines effectively give
ministerial staff a significant role adjudicating issues in
relation to seeking APS advice during the caretaker period.
The main point to note is that, to the extent
that ministerial staff have been regulated at all, it has been
almost entirely to deal with possible conflicts between their
individual self interest and the interests of their minister. None
of the guidance has been directed at problems that might arise
through the ministerial adviser's pursuit of what they perceive as
the interests of their minister or their party.
Every commentator and analyst seems to agree
that ministerial staff have grown in importance in the policy
process as they have grown in numbers. The more difficult question
however is whether their raised profile warrants new rules to
govern them. There is evidence that international practice is
moving in this direction. It is probably also true to say that the
role of ministerial staff in relation to the machinery of
government in Australia has become a target for more sustained
public scrutiny over the last ten years. The current public debate
about the role of staff probably began with the Coalition
Opposition's targeting of NMLS, but has been more significant
during the federal travel rorts investigations in 1997 and the
'children overboard' affair in 2001-02. Yet the problems have been
around for far longer.
Events surrounding the children overboard
affair, it has been suggested, point to possible problems in the
procedures being followed by ministerial staff, in their relations
with departmental officials, and internally within ministers'
offices.(130) This has not been the first time that
procedures in a minister's office have been the cause of or a
factor in a political crisis. Indeed the description of events
surrounding 'the VIP affair' of 1967 may seem familiar to those
following the children overboard affair. The VIP affair concerned
inaccurate answers given in parliament to questions about the use
of aircraft for transporting MPs.(131) After this
embarrassing debacle, during which records were eventually provided
that had initially been claimed not to have existed, Prime Minister
Gorton reviewed what had happened:
[T]he affair convinced Gorton that senior public
servants in the Prime Minister's Department and in the Prime
Minister's office had been dishonest and, in covering up, had
exposed Harold Holt to embarrassment and ridicule. His judgment was
confirmed following an investigation of the files after he had
become Prime Minister. The results were alarming. Some files had
simply disappeared and, 'quite contrary to normal practice', almost
no record had been kept of the handling of minutes and of other
papers on the file, and no record had been retained of action
taken. Replies to parliamentary questions had been amended or
massaged to the point of providing incorrect answers. Denials had
been issued that data existed when officials knew that it did, and
there was evidence they had simply failed to act on information
received.(132)
Criticisms of the Keating Government's handling
of the process of issuing of Pay TV licences also resembles events
associated with the children overboard affair. In his report on the
Pay TV incident, Professor Pearce noted that '... there appears to
have been a breakdown in the system for bringing matters to the
Minister's attention. At the very least, the recording of the
movement of documents in and out of the Minister's Office was
defective'.(133) The difference between incidents in the
1960s and the 1990s has been the increasing emphasis on the roles
of ministerial staff in causing breakdowns in governing processes.
These alleged problems in ministerial offices have led to
suggestions that the roles of ministerial staff need to be
clarified and perhaps in some way regulated. After the Pay TV
licence affair, Senator Kernot argued:
... we have had a huge increase in the number of
ministerial staff as compared with departmental staff. I am not
saying that that is inappropriate; I am simply saying that there
has been a real blurring of the lines as to what is appropriate
responsibility for all these people, including ministers, and it is
about time we sorted it out.(134)
In the Australian Financial Review
Geoffrey Barker recently remarked in similar terms:
[The government] massively expanded the role of
ministerial staffers in interceding between ministers and
bureaucrats and pressuring bureaucrats to tell ministers what they
wanted to hear rather than what they should
know.(135)
The Public Service Commissioner has suggested
that 'there is a case for some articulation of the values and code
of conduct of ministerial officers'.(136) Public sector
analyst and academic John Uhr put this in terms of needing
to carry forward the spirit of reform so that
the kind of pretence to accountability can be more properly enacted
by making sure that the people who are holding power and exercising
the capacities as public decision makers, ministerial advisers, ...
really own up when things don't go as planned
...(137)
Dr Uhr had previously suggested that regulation
should take the form of a code of ethics that covered both MPs and
their staff, and a Parliamentary Integrity commissioner who would
investigate 'alleged misconduct by elected members or their
staff'.(138) An alternative, or complementary, approach,
would be to have an officer who advised and educated ministerial
staff and/or MPs, along the lines of similar officials in
Queensland and overseas.(139) The current Minister
Assisting the Prime Minister for the Public Service, Tony Abbott,
however, is 'sceptical about new regulations which might turn out
to be better at tripping conscientious people focussed on doing
their job than trapping villains who know how to cover their
tracks'.(140)
Certainly the practice in some other countries
is generally to regulate or guide ministerial staff more explicitly
than in Australia. New Zealand, like Australia, has no framework
for advisers, but that is not the case elsewhere. The UK Code
of Conduct for Special Advisers, promulgated in July 2001,
covers matters such as the tasks which special advisers can do,
prevention of the use of resources for political party purposes,
contact with the media, relations with the government party
generally, and the holding by advisers of political party offices.
(The UK Code is reproduced in full in Appendix 2.)(141)
It also establishes a complaints structure, stating that:
Any civil servant who believes that the action
of a special adviser goes beyond that adviser's authority or
breaches the Civil Service Code should raise the matter immediately
with the Secretary of the Cabinet or the First Civil Service
Commissioner, directly or through a senior civil
servant.(142)
Even prior to the Code's introduction, however,
ministerial staff in the UK were not entirely unregulated. In
particular there already existed a Ministerial Code and a Model
Contract for Special Advisers, which, together with other policies,
covered issues now consolidated in the Code of
Conduct.(143) There are also proposals currently being
considered in the UK for parliamentary regulation of the numbers of
advisers: 'there should be a limit on the number of special
advisers in each government, set by Parliament at the beginning of
each new Parliament'.(144)
In Canada, there is regulation of ministerial
staff, but principally in relation to conflict of interest. This
takes place under the Conflict of Interest and Post-Employment
Code for Public Office Holders.(145) In some
respects this is similar to the Australian arrangement. Unlike
Australia, however, the Code is backed by the advice and reporting
of the office of the Ethics Counsellor. Staff thus are subject to
professional advice and scrutiny in a bid to ensure compliance with
the Code.
The US is always difficult to compare with
Australia, because its system of executive government is different
from ours. Nevertheless, executive conduct is more tightly
regulated than in Australia, with a legislative basis, and
institutionalised ethics advice and support.(146) In the
US current and former cabinet officials routinely appear as
witnesses before Congressional committees, though there is a form
of executive privilege which applies to the president and to the
president's advisers. In the US also, the scope of the executive
privilege exercised by the president is a perennial source of
conflict not dissimilar to the conflict in Australia surrounding
advisers.(147)
All the above arrangements aim to regulate the
staff. It might also be possible to approach some aspects of the
problem through regulation of interactions with ministerial staff,
rather than through the regulation of the staff themselves. The
Public Service Commissioner recently outlined such a possibility,
discussing the extent to which the Public Service Code of Conduct
guides interaction between public servants and ministerial
staff:
... we are looking at the guidelines on official
conduct. The current guidelines are very brief on the relationship,
and I think this is an area we need to expand upon to clarify for
public servants their relationship with ministers ... there will be
a lot of relationships between the minister's office and the staff
of an organisation ... The relationships are between the staff and
their secretary and between the secretary and the minister.
Obviously, in making that relationship work, staff would normally
expect that, when they are dealing with a minister's office, they
will know what the minister is saying, that they will understand
the requirements and that this approach will work very easily and
properly. But I think there is a need within each agency to clarify
the protocols of the relationship.(148)
There are thus several different approaches that
can be taken to defining or regulating the activities of
ministerial staff. The question that remains is whether a
government will decide it is worth pursuing one or more of these
options. The existing avenue of scrutiny and accountability,
currently almost unused, is the parliamentary one. This however is
limited to gathering information, in contrast to regulatory
structures such as those just described, which can have
disciplinary consequences.
As public policy analyst Maria Maley has
recently argued, it may be time to define the limits to the
immunities able to be claimed by executive government, particularly
in relation to advisers.(149) Should they be allowed to
go so far as governments currently claim, allowing Cabinet to
determine whether advisers will appear before a Senate Committee?
During the controversy in 1995 over the NMLS, the Auditor-General
commented that '[a]ll those who play a role in administrative
decision making exercise public power and that action, especially
where public money is involved, should be open to public
scrutiny'.(150) The Auditor-General had in mind
particular organisations, but the principle could be applied more
generally, or to actions rather than institutions. In the United
States, it is known for executive staff to appear 'but decline to
answer certain questions on the grounds of executive
privilege'.(151) Perhaps it is certain actions or
conversations to which immunity attaches, rather than to persons or
to an office (such as ministerial adviser).(152)
One of the difficulties faced by the Houses in
attempting to enforce their powers to compel the appearance of
witnesses is that they are limited in what they can do to compel
appearance. In particular, there exists a difficult ethical
question of how to treat public servants who indicate that they
have been instructed by their minister not to answer questions put
by the Houses. In 1994, Australian Democrat Senator Kernot
introduced a Bill that addressed this issue, the Parliamentary
Privileges Amendment (Enforcement of Lawful Orders) Bill
1994.(153) She noted that the 'prospect that the Senate
might use its imprisonment power to obtain government documents has
been very controversial',(154) and that 'it would be
unjust for the Senate to impose a penalty on a public servant who,
in declining to provide information or documents, acts on the
directions of a minister'.(155)
The Senate Committee of Privileges in its report
on Senator Kernot's Bill agreed, pointing out:
that any attempt by a House of the Parliament to
impose the extreme penalties of either gaol or a fine upon a public
servant who obeyed a ministerial instruction not to comply with an
order of that House or a committee, while the minister concerned
was immune from its contempt powers, was
untenable.(156)
Despite this remark, the Committee concluded
that:
if an order of a House or committee is not
complied with by a public servant acting on the instructions of a
minister, it is for the relevant House to take such action under
its contempt powers as it considers appropriate in the
circumstances.(157)
Thus the Committee considered the exercise of
its powers in such cases was untenable, but at the same time
endorsed the very exercising of those powers.
It may be the Committee's position that is in
fact untenable. It is worth considering exactly why it is sometimes
claimed that public servants should not be confronted by the powers
of the chambers of parliament. Implicit in the statement that one
should not penalise a public servant who is acting on the
directions of a Minister is a concession that the Minister has the
legal authority to issue directions to someone to defy the Senate
or House of Representatives. In making this concession, those who
claim to be seeking to assert the power of the Senate are in fact
deferring to the power of the executive and are encouraging the
public servants (and probably ministerial staff) to do the same.
This seems to rest uneasily with the Parliament's declarations on
powers and immunities, and the limited case law that exists in this
area.(158) As the Law Institute of Victoria once argued,
if a public servant is asked to choose between complying with a
Minister's instruction and complying with a House's demands, they
should be deferring to the House, not the
executive.(159)
Would the scenario be the same in the case of a
ministerial adviser? This depends on whether a constitutional
distinction can be drawn between public servants and ministerial
staff, which was one of several issues relating to parliamentary
powers over which the Clerks of the Houses disagreed in April 2002
when providing opinions to the Senate Select Committee on a Certain
Maritime Incident.(160) Essentially, the Clerk of the
Senate has argued no privilege attaches to ministerial staff:
... the Senate and comparable houses of
legislatures have not recognised any immunity attaching to this
category of office-holders. There is also no basis for supposing
that they possess any legal immunity ...(161)
Having argued this legal position, the Clerk of
the Senate also suggested that calling ministerial staff before
parliamentary committees was a good idea:
... there is a strong case for subjecting
ministerial personal staff to compulsion in legislative inquiries,
on the basis that their role is manifestly now not confined to
advice and personal assistance ... they act as de facto assistant
ministers and participate in government activities as such ...
Moreover, ministers no longer necessarily accept full
responsibility for the actions of their staff
...(162)
The Clerk of the House of Representatives
accepted that there is precedent for the Senate to call anyone as a
witness who is not a current member of the House. He however
suggested that:
a reasonable case could be made out for the
immunity operating in respect of Ministers who are current Members
of the Parliament also applying to their staff, based on a
Minister's need for the assistance of staff to perform their roles
and functions, especially in the modern complex world of government
and administration.(163)
It remains unclear whether there is any legal
basis to draw this distinction between ministerial staff and public
servants. It also supposes that ministers take full responsibility
for the conduct of their staff, which these days is equally
unclear.(164) The law to date, such as it is, seems to
lean more toward the interpretation of the Parliament's powers
favoured by the Clerk of the Senate. It is nevertheless far from
clear whether or when the Senate will decide to press the matter to
the point where a court will resolve any of the issues
involved.
It is worth asking why the 'McMullan principle'
of ministerial staff accountability is worth
preserving.(165) A March 2002 newspaper editorial in the
wake of the Victorian government's refusal to let ministerial staff
appear before a parliamentary committee commented:
The question is whether, even if such a
convention does exist, is it still defensible? The definition of
public servant has been blurred in recent times. Whether they are
career public servants or partisan advisers, the immediate personal
staff of ministers are paid by the taxpayer and as such should be
accountable to the taxpayer.(166)
No-one has suggested that parliaments would
actually censure, penalise or reward ministerial staff according to
the content of any information they might disclose under
questioning. It is not proposed that they be on trial. The proposal
is merely that they provide information. To quote Senator Rod Kemp
(Liberal, Victoria) when he was in opposition, 'There is no
precedent being established here-except the precedent of
accountability'.(167) Over 25 years ago this same debate
took place over the appearance of departmental secretaries before
parliamentary committees. Many of the same arguments were made then
as are now being made regarding ministerial staff. As professor of
politics Patrick Weller pointed out during evidence in the Senate
Select Committee Inquiry into a Certain Maritime Incident, the
additional transparency that came with making departmental
secretaries available to parliamentary committees was 'probably
desirable' and it had not damaged the machinery of
government.(168) Professor Weller also highlighted the
link between the growth in the role of ministerial staff and the
issue of accountability. He pointed out that it can no longer be
assumed that ministers can speak for their staff on issues relating
to procedure:
if secretaries of departments can be asked to
appear before your committee and asked what they told ministers
then equally ministerial staff should be able to be called before
the committee and asked what they told ministers, because we can no
longer assume that telling a minister's staff is telling a
minister.(169)
Of the participants in parliamentary debates on
these issues, Liberal Senator Hill has probably given the clearest
indication that the immunity of the executive might need to be
tempered when it comes to ministerial staff, if executive
accountability to parliament is to remain credible. It was Senator
Hill who in 1994 led the Opposition's unsuccessful push to have
ministerial staff answer questions in relation to the Community
Grants Scheme.(170) On that occasion he argued it was
necessary to seek evidence from staffers following the minister's
resignation because 'we are determining the proper response of the
Senate in what amounts to a prima facie case of political
corruption'.(171) He reasoned that this involved doing
'everything reasonably possible to bring the government to account
for improper conduct in the administration of the public
purse'.(172) Eight years later during a discussion
regarding the children overboard incident in estimates hearings, he
was involved in the following interchange:
Senator Faulkner: What is going to be your
approach-and Mr Scrafton is just one example-if, perchance, Mr
Scrafton [as a former MoPS employee] were to be invited by the
Senate select committee to provide evidence on this or any other
matter?
Senator Hill: I would defer ... to a whole of
government position on that. To my mind it is treading on very
dangerous ground. On the other hand, that must be weighed against
the benefit of getting as much relevant information as possible on
the public record. I have certainly not been party to a discussion
yet on how we should weigh that balance. I will be doing that in
due course if the committee gives an indication that it wishes to
call MOPS staffers.(173)
In both 1994 and again in 2002, the question was
one of how to ensure that 'as much relevant information as
possible' was presented to the parliament (and, in both cases, the
mechanism was to be a Senate committee). In these cases, as
Professor Weller also indicated, this would mean putting questions
to ministerial staff.
Should there be any restrictions governing the
appearance of ministerial staff? Information could be provided by
ministerial staff on the same basis as public servants currently
provide information to parliamentary committees. Those limitations,
set out in the Government Guidelines for Official
Witnesses, state:
There are three main areas in which officials
need to be alert to the possibility that they may not be able to
provide committees with all the information they seek, or may need
to request restrictions on the provision of such information. These
are:
matters of policy;
public interest immunity; and
confidential material where in camera evidence
is desirable.(174)
As mentioned earlier, guidelines such as these
have not been set explicitly for ministerial staff, but they would
seem readily applicable were ministerial staff to be called to give
evidence. In these circumstances, it is hard to see how the calling
of ministerial staff, following similar guidelines to those
followed by public servants, would undermine ministerial
responsibility. Rather, as Senator Kemp recognised, it might be
said to enhance it, because it might help strengthen what is
regarded as one of the weaker links in the system as it currently
stands: the capacity of the parliament to call the executive to
account.(175)
Whether the desire for improved accountability
will mean appearance before parliamentary committees remains, as
always, a political question. Ministerial staff will appear when
one side of politics finally finds their absence from hearings
politically intolerable both in the short term and the long term.
In the short term, a major party will have to be convinced staffers
have evidence that cannot be acquired other than by them answering
questions in committee, and that the evidence will cause their
rivals political damage. However they will have also to be
convinced that in the long-term, the electoral benefits of being
the party that introduced improved transparency will be worth the
pain when their rivals one day inevitably turn this weapon of
accountability on them. And when these two conditions are met, the
parties or individuals holding the balance of power in the Senate
will have to agree with the major party's
assessment.(176) This set of conditions may take some
time to coincide. When they do, however, the result is unlikely to
be earth shattering. The appearance of ministerial staff before a
parliamentary committee will, like the appearance of public
servants, quickly become standard practice. It will, like the
appearance of public servants, be guided by a set of procedures
that ensure the executive answers to the parliament on matters of
policy. And it will, like the appearance of public servants, be
likely to enhance rather than undermine ministerial
accountability.
In late May 2002, the Senate Select Committee on
a Certain Maritime Incident resolved on an unusual course of
action. Faced with the continued refusal of some potential
witnesses to respond to invitations to appear, and with
correspondence from ministers indicating others would not appear,
the Committee decided not to directly confront the prospective
witnesses. It instead resolved:
to appoint an Independent Assessor to perform
the following task and report to the committee:
To assess all evidence and documents relevant to
the terms of reference of the committee, obtained by the committee
or by legislation committees in estimates hearings, to:
-
- determine what evidence should be obtained from the persons
referred to in paragraph (1) [Former minister Reith and his
advisers], and what questions they should answer, to enable the
committee to report fully on its terms of reference; and
- formulate preliminary findings and conclusions which the
committee could make in respect of the roles played by those
persons with the evidence and documents so far
obtained.(177)
However at the same time the committee
essentially capitulated in the face of the executive's
determination, and confirmed the previously expressed view that 'it
would be unjust for the Senate to impose a penalty on an officer
who declines to provide evidence on the direction of a
minister'.(178) A lawyer (Stephen Odgers SC) was duly
recruited to fulfil the role of 'Independent
Assessor',(179) but it is not clear what an outside
lawyer might achieve that would not be ably and properly achieved
by the Committee itself. In this author's view, the approach taken
by the Committee continues to give the executive the upper hand in
its tussle with the Senate, despite the government lacking any
unequivocal legal basis to its stance. Until one of the Houses
tackles a government over ministerial staff, using the full force
of the powers available to it, ministerial staff will remain in the
accountability vacuum so condemned by oppositions and beloved of
governments.
The number of staff working in ministers'
offices has been growing steadily. It has at least doubled in
thirty years, though the growth has been relatively constant, and
not the product of sudden 'explosions' in numbers that some
commentators claim have occurred. Whether this might mean that the
numbers of staff should be revisited is not clear. The issue, after
all, is not about numbers but about accountability. Reform might
mean a renewed examination of the process for managing ministerial
staffing levels, rather than of the particular numbers. It might be
desirable to look at a proposal similar to the one currently in
circulation in the UK, for parliament to fix, and periodically to
review, staffing levels, rather than leaving the decision in the
hands of the government or the Prime Minister.(180)
The public's growing awareness of the activities
of ministerial staff is likely to become a factor in driving the
major parties' attitudes toward regulating this group of people.
The opinion of analysts and the media seems increasingly to be that
staffers' lack of accountability sits uneasily with both their
power and their public position. The question is what can or will
be done to bring accountability and power back into balance.
Oppositions seem to step back from forcing ministerial staff to
appear before Senate committees almost as often as they receive
legal advice confirming that they have the power to take that step.
Their reluctance is to a certain degree the result of a partisan
calculation: once they get what they want in opposition, they will
be unable to resist the same treatment when in government. Beyond
this, there are genuinely held concerns about the impact on
government of advisers appearing as witnesses before the Senate.
Anyone doubting the genuineness of this concern should consider how
reluctant was the leader of the Australian Democrats-hardly a party
that hesitates to take a strong line on scrutiny of the
executive-to demand the appearance of the head of NMLS (discussed
earlier).
Nevertheless, these concerns do not address the
accountability question. Ministers take only limited responsibility
for their staffers' actions, while the problem of how to examine
the actions of staffers of former ministers is even more acute. Put
most simply, if ministerial staffers are more than merely their
bosses' ciphers-and the general view is that they are-then their
actions must be more transparent than is currently the case. There
is a range of mechanisms that might improve on the current
situation, for example:
-
- in certain circumstances calling of staffers as witnesses to
Parliamentary committees, on a similar basis to the appearance of
public servants
-
- insertion of binding conduct-related clauses into the Members
of Parliament (Staff) Act (that might parallel Public Service Act
clauses)
-
- transparency of ministerial staff contracts
-
- Parliamentary regulation of numbers and/or conditions of
employment of ministerial staff, or
-
- establishment of a complaints review process beyond merely
review by the Prime Minister.
The first issue that will need to be settled,
however, is whether any of the major parties wants to drive
significant change to the accountability of ministerial staff in
our parliamentary system.
-
- Senate Select Committee on a Certain Maritime
Incident, Hearings, 18 April 2002, p. 1203.
- ibid., p. 1218.
- Victoria. Legislative Assembly, Debates, 20 March
2002, p. 376. See also Ewin Hannan, 'Hypocrisy muddies Labor's
transparency credentials', The Age, 7 March 2002.
- Anne Tiernan, 2001, 'Problem or Solution? The Role of
Ministerial Staff', in Jenny Fleming and Ian Holland (eds),
Motivating Ministers to Morality, Ashgate, Aldershot,
2001, p. 92; Patrick Weller, Australia's Mandarins: the Frank
and the Fearless? Allen & Unwin, St Leonards, 2001.
- The MoPS Act was introduced by the Hawke government partly to
regularise the basis on which ministerial staff were employed, and
partly to provide protection to public servants who took positions
in ministerial offices, by giving them a legislated framework
within which they could move between ministerial service and public
service.
- Senate Estimates Committee D, Additional Information
Received, Volume 1, November 1990, p. 136.
- The Hon. Dr D. Kemp, House of Representatives,
Debates, 4 February 1997, pp. 108-9.
- For description see James Walter, The Ministers' Minders:
Personal Advisers in National Government, Oxford University
Press, Melbourne, 1986; and RFI Smith, Ministerial
Advisers, Ministers and the Administration Research Paper No.
5, Royal Commission on Australian Government Administration,
1974-76.
- Walter, op. cit., pp. 129-76; Maria Maley, 'Conceptualising
Advisers' Policy Work: The Distinctive Policy Roles of Ministerial
Advisers in the Keating Government, 1991-96', Australian
Journal of Political Science, vol. 35, no. 3, 2000, pp.
449-70.
- Smith, op. cit., p. i.
- Walter, op. cit., p. 160.
- ibid., pp. 150-7.
- Maley, 'Conceptualising Advisers' Policy Work', op. cit., p.
454.
- Clerk of the Senate, Correspondence to the Senate Select
Committee on a Certain Maritime Incident, 22 March 2002, p. 4, to
be included in the Report of the Committee.
- Tiernan, op. cit., p. 102.
- John Kerin, 'Ministerial advisers know the truth about boat
saga', The Australian, 19 February 2002; Kirsten Lawson,
'Children-overboard affair looking like a conspiracy now',
Canberra Times, 23 February 2002; Michelle Grattan,
'Inquiry threat to "overboard" staff', Sydney Morning
Herald, 13 March 2002.
- Tiernan op. cit., p. 100.
- See, e.g. The Auditor-General, National Media Liaison
Service: A Loophole in Accountability? Audit Report No.17
1994-95, AGPS, Canberra. See also discussion later in this
paper.
- Senate, Debates, 27 October 1982, p. 1844; 10 November
1982, p. 2108; House of Representatives, Debates, 21
October 1982, p. 2162; 28 October 1982, p. 2696.
- Graham Freudenberg, A Certain Grandeur: Gough Whitlam in
Politics, Macmillan, Melbourne, 1977, pp. 319-24.
- Ian Hancock, John Gorton: He did it his way, Hodder,
Sydney, 2002; '"Ruthless, cold-blooded": Sacked minister accuses
Gorton's secretary', Daily Mirror, 13 November 1969.
- Walter, op. cit., p. 42.
- ibid., pp. 69-75.
- Freudenberg, op. cit., p. 256; Supreme Court of New South
Wales, Swearing In Ceremony of The Honourable J J Spigelman QC
as Chief Justice of The Supreme Court of New South Wales,
Monday 25 May 1998, Cited:
http://www.agd.nsw.gov.au/sc%5Csc.nsf/pages/cj_swearin,
accessed May 2002.
- Smith, op. cit., Appendix 2.
- Walter, op. cit., pp. 78-85.
- Mark Westfield, 'The men who sank John Stone', Australian
Business, 25 November 1982, p. 31, cited in Walter, op.
cit.
- Tony Walker, 'The big boys behind Beazley', Australian
Financial Review, 6 May 2000.
- Or the 'Manchu Court', as Keating described Peter Barron and
another of Hawke's advisers, Bob Hogg. See Michael Gordon, A
True Believer. Paul Keating, University of Queensland Press,
St Lucia, 1996, p. 125.
- Geoff Kitney, 'How Hawke rules, OK?', National Times,
11 May 1984; Walter, op. cit., pp. 103-110.
- Don Watson, Recollections of a Bleeding Heart: A Portrait
of Paul Keating PM, Knopf, Milsons Point, 2002, p. 220.
- ibid., p. 385.
- Stephen Mills, The Hawke Years: The Story from the
Inside, Viking, Ringwood Vic., 1993, preface.
- John Halligan and John Power, Political Management in the
1990s, Oxford University Press, Melbourne, 1992, p. 81.
- Examples include Senator the Hon. R. Kemp, Senate,
Debates, 28 November 1990, p. 4686; Mr EC (Ted) Mack,
House of Representatives, Debates, 22 February 1994, p.
1001; Rt Hon. Ian Sinclair, House of Representatives,
Debates, 21 February 1994, p. 950; Senator Andrew Murray,
'Ministerial advisers must account for their actions', The
Canberra Times, 9 April 2002.
- This issue is discussed in more detail in Maria Maley, 'Too
Many or Too Few? The Increase in Federal Ministerial Advisers
1972-1999', Australian Journal of Public Administration,
vol. 59, no. 4, 2000, pp. 48-53.
- Mr P. Andren, House of Representatives, Debates, 17
February 2000, p. 13 854; Senator the Hon. J. Faulkner,
Senate, Debates, 3 April 2000, p. 13 206.
- The exclusion of consultants is necessary to maintain long-run
comparability of the data in this figure. It does however mean that
the level of advisory capacity available to ministers in the later
Hawke and Keating governments is underestimated by up to around 40
staff. See, e.g. Senator the Hon. N. Bolkus (ALP, South Australia),
Senate, Debates, 13 August 1991, p. 173. The problem does
not arise in Figure 1, however, in which consultants have been
included.
- These figures slightly underestimate the staff allocations, as
they do not count all vacant positions. The numbers of advisers
were drawn from Maria Maley, 'Too Many or Too Few', op. cit., pp.
48-53, Tables 4 and 6. Maley's method was applied to 2001 data by
the author.
- Figures derived by taking data from Maley, 'Too Many or Too
Few?', op. cit., Tables 3 and 5, and deducting the numbers of DLOs,
derived from the Ministerial Directories for 1995, 1996 and 1999
(DLOs were not included in the original data for 1981 and 1983).
2001 result arrived at by applying Maley's methodology to the May
2001 Parliament House Communications Directory.
- Figures derived by adding counts of parliamentary secretary
staff and all DLOs to the above figure. Estimate of staffing for
parliamentary secretaries in 2001 was adjusted for differences in
coverage between 1999 Ministerial Directory and 2001
Communications Directory. Staff not attached to particular
ministers were excluded as uniform data on these was not available.
The figures therefore do not include members of the Ministerial
Media Group or the National Media Liaison Service under Labor, or
the Government Information Unit, Cabinet Policy Unit or Government
Members' Secretariat under the Coalition.
- On Fraser see Pat Weller, Malcolm Fraser PM, Penguin
Books, Ringwood Vic., 1989, pp. 22-5; on Keating see John
Halligan, 'Labor, The Keating Term and the Senior Public Service',
in Gwynneth Singleton (ed.) The Second Keating Government,
Centre for Research in Public Sector management, University of
Canberra / Institute of Public Administration Australia, Canberra,
1997, p. 54.
- DLOs include staff titled Departmental Liaison Officer,
Assistant Departmental Liaison Officer, Departmental Officer or
Escort Officer.
- House of Representatives Practice, 4th edition,
Department of the House Of Representatives, Canberra, 2001, p. 69.
- Ministers without portfolio date back to the first Barton
Ministry, when former Tasmanian Premier Sir Philip Fysh held such a
role; the terminology of assistant minister dates to Fisher's
Ministry of 1914, in which Jens Jensen, Hugh Mahon and Senator
Edward Russell were so designated. See Bob Bennett, 'Ministers of
State and Other Legislation Amendment Bill 1999', Bills Digest
no. 110, Department of the Parliamentary Library, 1999-2000,
p. 5.
- Votes and Proceedings of the House of Representatives,
21 September 1938, p. 188.
- Claude Majeau, 'A Question of Luck: The Job of a Parliamentary
Secretary', Parliamentary Government, vol. 4, no. 3, 1983,
pp. 3-6; Miriam Vanderhoff-Silburt, 'The Role of Parliamentary
Secretaries', Canadian Parliamentary Review, vol. 6, no.
4, 1984, pp. 6-9.
- House of Representatives Practice, 2nd edition,
Department of the House of Representatives, Canberra, 1989, p. 109.
Prime Minister Malcolm Fraser had indicated his intention to
appoint two parliamentary secretaries when the Parliamentary
Secretaries Bill 1980 was being debated: House of Representatives,
Debates, 26 November 1980, p. 81. Sometime later a third
appointment was also made: see House of Representatives,
Debates, 7 September 1982, p. 1099.
- The three were the Parliamentary Secretary for Justice (Senator
M. Tate, Tasmania), the Parliamentary Secretary for Local
Government (Senator M. Reynolds, Queensland), and the Parliamentary
Secretary for Defence Science and Personnel (Ms R. Kelly,
Canberra). These three appointments were, however, only short-term.
The government used the title only for a period of two months,
until amendments to the Ministers of State Act 1952 was
amended to allow a two-tiered system of ministers, and the
appointment of three additional ministers. Once the amendments were
passed, the three parliamentary secretaries were re-designated as
ministers.
- See resolutions of the House of Representatives in this regard,
9 May 1990 and 16 October 1991.
- House of Representatives Practice, 4th edition, op.
cit., p. 69; The Hon. R. Hawke, House of Representatives,
Debates, 8 May 1990, p. 13; Ministerial
Directory, March 1992, pp. 32-9.
- Senate, Debates, 21 December 1990, pp. 6388-95;
Ministerial Directory, October 1991; Senate,
Debates, 3 April 2000, pp. 13 208.
- See, e.g. Senate, Debates, 3 April 2000, pp.
13 208.
- Senate, Debates, 31 March 1999, pp. 3688-9.
- Smith op. cit., Appendix 2, Table 2.
- House of Representatives, Debates, 21 February 1994,
p. 944.
- Senate, Debates, 31 March 1999, pp. 3688-9. One recent
newspaper article suggests the contrast between Labor and Coalition
use of DLOs was greater: 42 under Labor, 72 under the Coalition.
These figures may reflect different measurement dates to those used
here: Kate Legge, 'The new class of untouchables', The
Australian, 25 March 2002.
- Senate, Debates, 31 March 1999, p. 3688.
- Mr D. Cameron, House of Representatives, Debates, 8
April 1981, p. 1455. The Opposition disputed the numbers involved.
Mr Hayden suggested that while the originally staffing level had
indeed been eight in 1979, it had grown to 18 by 1981: House of
Representatives, Debates, 8 April 1981, p. 1448.
- The Hon. F. Walker, House of Representatives, Debates,
5 December 1994, p. 3958. Note that NMLS had 22 or 23 staff in
1994, but only 12 were media professionals, with the others being
administrative support. The distinction between ministerial media
advisers and the MMG existed largely only on paper. Thus at the
time that there were on paper 17 media advisers and 15 members of
MMG, the Ministerial Directory shows the Keating ministry
having 26 media advisers allocated to individual ministers plus a
press office of five in the PM's office, with the MMG having only
one officer not attached to a minister: its director Mr David
Epstein. Both sets of numbers add up to the same total of 32, but
they make clear that MMG was not functioning as a discrete entity.
See also Commonwealth Government Directory March-May 1994,
AGPS, Canberra, p. 53.
- Senator Ellison, Senate, Debates, 3 April 2000, pp.
13206-9; Parliament House Communications Directory, August
1999. Fraser had three press secretaries in 1979; Hawke had three
in a unit of five members in 1991: See Ministerial
Directories, March 1979; April 1991.
- The absence under the Howard Government of a parallel
organisation to NMLS is a controversial issue. The Coalition has
indicated it has no parallel organisation to the NMLS (e.g. Senator
the Hon. R. Hill [Liberal, South Australia], Senate Finance and
Public Administration Committee, Estimates Hearings, 22
October 1996, p. 554; Senator the Hon. I. Campbell [Liberal,
Western Australia], Senate, Debates, 29 September 1997, p.
7065). It has however had a network of additional media advisers in
the offices of six ministers, one in each State (see, e.g. Senate
Finance and Public Administration Committee, Estimates
Hearings, 4 June 1997, p. 463; Senate, Debates, 3
April 2000, pp. 13 206-9). Questioned about the duties of the
second media staffer, Senator W. Parer (Liberal, Queensland,
in whose office one such person was located) commented that the
person 'keeps his eye on things relating to Queensland in regard to
federal issues ...' (Estimates Hearings, 4 June 1997,
p. 464), 'keeps his finger on the electoral pulse in the state
and reports to me...' (ibid., p. 466), that his role was different
to that of his other media adviser (ibid., p. 466), that the person
'actually became a media person in the state of Queensland' (ibid.,
p. 469) and that the person was sending newspaper clippings,
transcripts and tapes to Canberra, including to the Prime
Minister's office (ibid., p. 470). Senator Hill had previously
agreed that 'the duties of those [additional] media advisers relate
to the whole of government rather than necessarily to the minister
they have been allocated to' (Senate Finance and Public
Administration Committee, Estimates Hearings, 22 October
1996, p. 553), while Minister the Hon. D. Jull (Liberal, Fadden)
that day added that 'the entitlement of a second media adviser is
part of a strategy to provide additional media resource in each
state to promote coordination of media relations' (ibid., cited by
the Chair of Committee, p. 663).
In addition to these six additional media staff,
the Government Members' Secretariat also provides some
media-oriented support, particularly in terms of advice, training
and production of materials for members to distribute. They would
provide assistance with press releases (Senate Finance and Public
Administration Committee, Estimates Hearings, 18 September
1996, p. 199) and provision of newsletters (ibid., p. 196). See
also Louise Dodson, 'Once were Animals: Howard's farm denial',
Australian Financial Review, 5 June 1998; Verona Burgess,
'Government sets up secret media watch', Canberra Times, 6
June 1998.
Taken together, the work of the additional media
officers and the Government Members Secretariat is essentially the
same as some of the official functions of the NMLS: 'to provide and
coordinate the provision of accurate and timely information on
Government policies and programs throughout Australia' (Senator the
Hon. G. Richardson [ALP, New South Wales], Senate,
Debates, 16 August 1991, p. 619); and 'to monitor local
media to provide media summaries' (Senator the Hon. N. Bolkus,
Senate, Debates, 12 November 1992, p. 3119).
- Senate, Debates 15 May 1991, pp. 3445-6; Senate,
Debates 8 March 1999, p. 2430.
- James Walter, 'Prime Ministers and their Staff', in Pat Weller
(ed.), Menzies to Keating: The Development of the Australian
Prime Ministership, Melbourne University Press, Melbourne,
1992, p. 54.
- See Ministerial Directories, August 1983; October
1990; October 1995; September 1999. These numbers may exclude
vacant positions. For example, the official number for Howard's
office was 38 in October 1999, but one position was vacant. Senate,
Debates, 3 April 2000, p. 13 206.
- Walter, op. cit., p. 98.
- ibid., p. 53.
- ibid., p. 79.
- ibid., pp. 95, 97.
- The top two classifications were Principal Adviser and Senior
Adviser. The figures are based on analysis of the answer to a
parliamentary question: House of Representatives, Debates,
17 February 2000, p. 13 854.
- Senator the Hon. N. Minchin (Liberal, South Australia), Senate
Finance and Public Administration Committee, Estimates
Hearings, 3 June 1998, pp. 300, 310; Senator E. Abetz
(Liberal, Tasmania), Senate Finance and Public Administration
Committee, Proof Estimates Hearings, 19 February
2002, p. 183. Figures discussed in estimates hearings in 1995
appear to confirm the stability of the ratio at least as far back
as 1983: Senators R. Kemp and B. McMullan, Senate Finance and
Public Administration Committee, Estimates Hearings,
9 February 1995, p. 73. There has been some debate about
whether the ratio was maintained on the basis of numbers of staff,
cost of staff, or both. Senator the Hon. R. Ray (ALP, Victoria)
suggested that the agreement between the parties in 1983 had been
based on both, and was concerned that the commitment to a fixed
ratio of numbers had been kept, but the agreement on cost was not:
see Senate Finance and Public Administration Committee,
Estimates Hearings, 3 June 1998, p. 300.
- Senator the Hon. J. Faulkner, Senate Finance and Public
Administration Committee, Estimates Hearings, 3 June 1998,
pp. 300, 309-10.
- Walter, op. cit., pp. 52-4.
- Tiernan, op. cit., p. 92; Maley, 'Too Many or Too Few?', op.
cit., p. 48.
- Smith, op. cit., p. 2.
- M. Roberts, Ministerial Advisers: A Background Paper,
Ministers and the Administration Research Paper No. 6, Royal
Commission on Australian Government Administration, 1974-76, p. 5.
- Michael Sexton, Illusions of Power: The Fate of a Reform
Government, George Allen & Unwin, Sydney, 1979, p. 194.
- Smith, op. cit., pp. 3-4; Pat Weller, Australia's
Mandarins: The Frank and the Fearless? Allen & Unwin, St
Leonards, 2001.
- Hon. J. Howard, 19 June 2001 cited in Maria Maley, 'Australian
Ministerial Advisers and the Royal Commission on Government
Administration', Australian Journal of Public
Administration, vol. 61, no. 1, 2002, p. 106.
- See, e.g. Senator the Hon. R. Ray, Senate Finance and Public
Administration Committee, Estimates Hearings, 7 February
2002, p. 20.
- See Weller, op. cit., p. 103.
- Delmer Dunn, Politics and Administration at the Top:
Lessons from Down Under, University of Pittsburgh Press,
Pittsburgh, 1997, p. 107; Editorial, 'The silence of the backroom
boys', The Sydney Morning Herald, 1 April 2002.
- 'Senate Committees', Senate Brief No. 4 1998, cited:
http://www.aph.gov.au/Senate/pubs/briefs/brief4.htm,
accessed 20 March 2002; 'Parliamentary Privilege', Senate
Brief No. 11 1998, cited:
http://www.aph.gov.au/Senate/pubs/briefs/brief11.htm,
accessed 20 March 2002; 'Orders for Production of Documents',
Brief Guides to Senate Procedure No. 11 November 2001,
cited: http://www.aph.gov.au/Senate/pubs/guides/briefno11.pdf,
accessed 20 March 2002.
- The use of the word 'privilege' itself often confuses matters.
This is in part because of a confusion of 'parliamentary privilege'
with 'executive privilege', the latter, as Maley argues, being an
essentially American doctrine that governments have used to prevent
staff in the executive arm of government from appearing before the
Senate. Talk of 'executive privilege' mistakenly encourages the
perception that ministers have some discretionary advantage over
others in their dealing with the parliament, rather than
acknowledging that privileges attach to the parliament, and it is
for the parliament to determine whether certain immunities should
be granted to executive functions. See Maria Maley, 'Political
advisers should be protected', Canberra Times, 19 March
2002; 'Parliamentary Privilege', Senate Brief No. 11,
1998, cited: http://www.aph.gov.au/Senate/pubs/briefs/brief11.htm,
accessed 20 March 2002; Senator Wright, Senate, Debates,
17 February 1977, p. 175.
- John Nethercote, 'Chain of command under the spotlight',
Canberra Times, 17 April 2002.
- On the appearance of witnesses, Odgers' Australian Senate
Practice states:
Although the question has not been adjudicated,
there is probably an implicit limitation on the power of the Houses
to summon witnesses in relation to members of the other House or of
a house of a state or territory legislature. (9th edition, p.
55).
In the case of documents the exception pertains
to Cabinet papers, though even this exemption is limited. See John
McMillan, 'Parliament and Administrative Law', in Geoffrey Lindell
and Robert Bennett (eds.), Parliament: The Vision in
Hindsight, The Federation Press, Annandale NSW, 2001, pp.
369-72; Christos Mantziaris, 'Egan v. Willis and Egan
v. Chadwick: Responsible Government and Parliamentary
Privilege', Research Paper no. 12, Department of
the Parliamentary Library, 1999-2000; R v. Richards; Ex parte
Fitzpatrick and Browne (1955) 92 CLR 157.
- Enid Campbell, 'Parliamentary Privileges', Research Paper
no. 1, Department of the Parliamentary Library, 2000-01. See
also John Uhr, Deliberative Democracy in Australia,
Cambridge University Press, Cambridge, 1998, pp. 172-3.
- See, e.g. Tony Walker, 'Coercion by committee', Australian
Financial Review, 26 February 2002.
- 16 July 1975, Senate, Journals, no. 87, p. 831.
- Odgers' Australian Senate Practice,
10th edition, Department of the Senate, Canberra, 2001, Section
19.6.
- McMillan, 'Parliament and Administrative Law', op. cit., pp.
369-72.
- Senator B. McMullan, Senate, Debates, 7 February 1995,
p. 610. He was recently quoted by Prime Minister Howard in defence
of his (Howard's) Government's approach: House of Representatives,
Debates, 12 March 2002, p. 995.
- Gabrielle Costa, 'ALP gags advisers on Bracks' mate affair',
The Age, 7 March 2002. See also Victoria, Legislative
Council, Select Committee on the Urban and Regional Land
Corporation Managing Director, First Interim Report on the
Urban and Regional Land Corporation Managing Director, March
2002. Cited:
http://www.parliament.vic.gov.au/council/Reginal_Land_Commitee/default.html,
accessed 26 April 2002.
- See Senate, Debates, 15 July 1975, pp. 2729-30.
- Senator the Hon. R. Wright, Senate, Debates, 17
February 1977, pp. 175-9. The unusual feature of Senator Wright's
action is that it was undertaken while he was a member of the
government of the day. Such moves have otherwise invariably come
from the opposition ranks. Wright's action probably reflects the
fact that he 'devoted the whole of his parliamentary career to
attacking encroachments of the Executive on the parliamentary
arena', a commitment which led him to cross the floor many times
(Senator J. Watson [Liberal, Tasmania], Senate, Debates, 8
May 1990, p. 30). The fact that this motion lapsed probably
reflects a lack of support for the proposal from his colleagues, as
they were in government at the time.
- Odgers' Australian Senate Practice, 10th edition, op.
cit., p. 493. The law governing conflict between parliament and
executive with respect to the production of documents has been
adjudicated in some respects in two cases: Egan v. Willis
(158 ALR 527) and Egan v. Chadwick (NSWCA 176). See
Mantziaris, op. cit.
- Senate, Debates, 15 July 1975, pp. 2729-30.
- Odgers' Australian Senate Practice, 10th edition, op.
cit., p. 489.
- Department of the Prime Minister and Cabinet, Government
Guidelines for Official Witnesses before Parliamentary Committees
and Related Matters, November 1989.
- Senate Estimates Committee D, Estimates Hearings, 5
October 1989, pp. 103, 186-214.
- Both Mr Parks and Mr Epstein were Directors of the Ministerial
Media Group, and their salaries were paid in that capacity. They
also had responsibility for the operations of the NMLS. Senate
Estimates Committee D, Estimates Hearings, 5 October 1989,
pp. 186.
- See Senate, Debates, 7 February 1995, pp. 606, 616.
- Senator C. Kernot, Senate, Debates, 7 February 1995,
p. 613.
- Senator R. Kemp, Senate, Debates, 7 February 1995, p.
607. Senator Kemp's quoting of the document tabled by Senator
Bolkus did not, however, tell the whole story. The brief to provide
'accurate and timely information on government policies' was only
one of NMLS's official functions. The full description was:
-
- To provide accurate and timely information on Government
policies and programs to the media throughout Australia as well as
information on policies to interest groups within electorates.
- Representatives in each of the State capitals, Darwin and
Townsville, should co-operate with Ministerial staff to co-ordinate
media arrangements but not have direct responsibility for arranging
itineraries.
- State representatives are to provide local members of all
Parties with details of Government programs.
- Representatives will not work with local or state Party
branches and will not be involved in Party programs nor electoral
campaigning.
- To co-ordinate the distribution of detailed information on
Government policies and programs from the information units of
various departments to the local media.
- To monitor local media to provide media summaries. Monitoring,
however, is secondary in importance to active information
dissemination.
(Senator the Hon. N. Bolkus, Senate,
Debates, 12 November 1992, p.3119). Thus there were
ministerial and party-based functions as well as government
information functions.
- The Auditor-General, op. cit., p. 1.
- Senator R. Kemp, Senate, Debates, 7 February 1995, pp.
607-8.
- In 1992, a bidding process was implemented to allocate pay TV
licences. It subsequently emerged that there were problems with the
process, particularly in regard to the failure to require deposits
as part of the bidding process for licences. It emerged that some
of the problems resulted from procedural failures either within the
Department of Transport and Communications or between the
Minister's department and the Minister's office. Professor Dennis
Pearce, 1993, Independent inquiry into the circumstances
surrounding the non-requirement of a deposit for satellite pay-TV
licences, and related matters, Report to the Secretary of the
Department of Transport and Communications, Canberra; Senator C.
Kernot, Senate Debates, 7 February 1995, p. 613.
- Senator C. Kernot, Senate, Debates, 7 February 1995,
p. 613.
- Senator the Hon. B. McMullan, Senate, Debates, 7
February 1995, p. 611.
- Senator the Hon. B. McMullan, Senate Finance and Public
Administration Committee, Estimates Hearings, 9 February
1995, p. 51.
- Mr David Jackson QC, Opinion, in Senate Select Committee on
Certain Aspects of Foreign Ownership Decisions in Relation to the
Print Media, Percentage Players: The 1991 and 1993 Fairfax
Ownership Decisions, Report of the Senate Select Committee on
Certain Aspects of Foreign Ownership Decisions in Relation to the
Print Media, June 1994, p. xvii.
- ibid., Mr David Jackson QC, Opinion, Appendices, p. 34.
- ibid., Appendices, p. 18. They appeared at 21 April 1994
hearings. Senate Standing Order 35 merely states:
-
- The examination of witnesses before a committee shall be
conducted by the members of the committee in accordance with
procedures agreed to by the committee, subject to the rules of the
Senate.
- The examination of witnesses shall be recorded in a transcript
of evidence.
- ibid., Majority Report, p. 29.
- Senator R. Hill, Senate, Debates, 3 March 1994, p.
1420. Similar remarks were made by Senator I. Campbell, Senate,
Debates, 3 March 1994, p. 1446.
- Motion moved by Senator R. Hill, Clause 3, Senate,
Debates, 3 March 1994, p. 1417.
- The Hon. J. Howard, House of Representatives, Debates,
12 March 2002, p. 939.
- Senate Select Committee on Certain Aspects of Foreign Ownership
Decisions in Relation to the Print Media, op. cit., p. 20.
- Mr Kerin, Senate Select Committee on Certain Aspects of Foreign
Ownership Decisions in Relation to the Print Media, Committee
Hearings, 24 March 1994, pp. 455-6.
- Tony Walker, 'New rules needed for ex-ministers',
Australian Financial Review, 12 March 2002. See also Ian
Holland, 'Post-separation Employment of Ministers', Research
Note, no. 40, Department of the Parliamentary Library,
2001-02. Cited:
http://www.aph.gov.au/library/pubs/rn/2001-02/02rn40.pdf
- This broad approach (of continuity in privileges or immunities)
was endorsed by the Clerk of the House of Representatives:
correspondence to the Senate Select Committee on a Certain Maritime
Incident, 3 April 2002, p. 13.
- Mr Howard's reference to someone 'who may now be back in the
Public Service' is likely to have been directed at Mr Mike
Scrafton, who had been an adviser to the Hon. P. Reith (Liberal,
Flinders) but by 2002 was in the Department of Defence. It left
open the question of the status of advisers who subsequently worked
for other ministers (e.g. Mr Ross Hampton) or advisers no longer
employed either under MoPS or in the public service. The last
category is particularly problematic. Based on the Howard
Government's approach to former ministers no longer in parliament,
one might conclude that such staffers would not be protected in any
way. This is clear from Mr Howard's response to calls for former
minister Mr Reith to appear, when he remarked 'The question of
whether the former minister appears is a matter for him. He is no
longer a member of my government and he is not a member of the
House' (House of Representatives, Debates, 12 March 2002,
p. 997). Senator Hill at one point argued that it is not the
person's current status, but their status at the time of events in
question, that would determine the approach to be taken. He
remarked: 'I do not agree [that questions are in order] that refer
to alleged actions that took place under a MOPS relationship'
(Senate Foreign Affairs, Defence and Trade Committee,
Proof Estimates Hearings, 20 February 2002, p.
102). As this paper argues, however, Senator Hill's view has not
always been cast in these terms.
Finally, it should be noted that the Clerk of
the House of Representatives has argued that in fact former
ministers should continue to enjoy immunity after they cease to be
ministers. He has argued that 'to regard the immunity otherwise
would render it incomplete and defeat the essential objective of
that immunity.' Clerk of the House of Representatives, 3 April
2002, op. cit., p. 9.
- Tony Abbott, 'Our public service a pillar of democracy',
Canberra Times, 23 May 2002. It is not clear what is meant
by 'ministerial staff agreements', but they are probably individual
Australian Workplace Agreements under the Workplace Relations
Act 1996.
- A Canberra Times editorial incorrectly suggested that
Ministerial staff were covered by the Code of Conduct: 'Minders
ought to be accountable', 11 March 2002.
- The Hon. John Howard, 1998, A Guide on Key Elements of
Ministerial Responsibility, Prime Minister, Canberra.
- ibid., pp. 20-1.
- Senator the Hon. J. Button (ALP, Victoria), Senate
Debates, 22 September 1983, p. 966.
- Greg Roberts, 'Parer, aide in firing line', The Age, 5
August 1998; Greg Roberts, 'Parer sacks key adviser over shares',
Sydney Morning Herald, 6 August 1998.
- Department of Prime Minister and Cabinet, Guidance on
Caretaker Conventions, September 2001. Cited: http://www.pmc.gov.au/pdfs/CaretakerConventions.pdf,
accessed 27 May 2001.
- Jennifer Bryant, Investigation into Advice Provided to
Ministers on "SIEV 4", Report prepared on behalf of the People
Smuggling Task Force, 21 January 2001 [sic: was January 2002],
p. 41; Senator the Hon. J. Faulkner, Senate, Debates,
13 February 2002, p. 209; Sid Marris, 'Advisers gave PM "flawed"
account', The Australian, 20 February 2002.
- Senate, Debates, 5 October 1967, pp. 1196-7; 25
October 1967, pp. 1633-4; 27 October 1967, p. 1854; Freudenberg,
op. cit., pp. 111-113.
- Hancock, op. cit.
- Pearce, op. cit., p. 12.
- Senator C. Kernot, Senate, Debates, 3 March 1994, p.
1425.
- Geoffrey Barker, 'Fallen pillars. The assault on public
institutions', Australian Financial Review, 28 March 2002.
- Andrew Podger, Senate Select Committee on a Certain Maritime
Incident, Hearings, 18 April 2002, p. 1203.
- John Uhr quoted in Background Briefing, ABC Radio
National, 24 March 2002.
- Uhr, 1998, op. cit., p. 246.
- Noel Preston, 'Integrity and Ministerial Office: The Queensland
Integrity Commissioner', in Jenny Fleming and Ian Holland,
Motivating Ministers to Morality, Ashgate, Aldershot,
pp. 119-28; Charles Sampford, 'Prior Advice is Better than
Subsequent Investigation', in Jenny Fleming and Ian Holland, ibid.,
pp. 173-86.
- Abbott, op. cit.
- UK Cabinet Office, Code of Conduct for Special
Advisers, cited: http://www.cabinet-office.gov.uk/central/2001/codconspads.htm,
accessed 18 April 2002.
- Clause 22.
- See, in particular, Clause 50 of the Ministerial Code.
Ministerial Code: A Code of Conduct and Guidance on Procedures
for Ministers, Cabinet Office, July 2001, cited: http://www.cabinet-office.gov.uk/central/2001/mcode/contents.htm,
accessed 18 April 2002. For discussion see Terence Daintith,
'Analysis: "A very good day to get out anything we want to bury"',
Public Law, Spring 2002, pp. 13-21.
- UK Cabinet Office, Portrait of a Profession Revisited,
Speech by Sir Richard Wilson, 26 March 2002, cited: http://www.cabinet-office.gov.uk/2002/senior/speech.htm,
accessed 28 May 2002, p. 20.
- Canada. Office of the Ethics Counsellor, cited: http://strategis.ic.gc.ca/pics/oe/coiencod.pdf,
accessed 19 April 2002.
- US Office of Government Ethics, cited: http://www.usoge.gov/home.html,
accessed 29 May 2002.
- See, for example, Pam Holt, 'Steady the privilege pendulum',
Christian Science Monitor, 4 April 2002; Joshua
Marshall, 'Bush's executive-privilege two-step',
Salon.com, 7 February 2002, cited:
http://www.salon.com/politics/feature/2002/02/07/bush_records/index.html,
accessed 29 May 2002; Claire Shipman, 'Not telling', ABC
News, 20 March 2002, cited:
http://abcnews.go.com/sections/GMA/GoodMorningAmerica/GMA020320WHSecrecy.html,
accessed 29 May 2002.
- Podger, op. cit., p. 1203.
- Maley, 'Political advisers should be protected', op. cit. See
also Senator C. Kernot, Senate, Debates, 3 March 1994, pp.
1423-5.
- The Auditor-General op. cit., p. 2.
- Maley, 'Political advisers should be protected', op. cit.
- This is indeed the position taken by Clerk of the Senate, Harry
Evans, who remarked: 'public interest immunity relates to
categories of information, not to categories of office-holders.'
Clerk of the Senate, 22 March 2002, op. cit., p. 3.
- Senator C. Kernot, Senate, Debates, 23 March 1994, p.
2010.
- ibid., p. 2012.
- ibid., 11 May 1994, p. 680.
- Senate Committee of Privileges, Parliamentary Privileges
Amendment (Enforcement of Lawful Orders) Bill 1994 (49th
Report), September 1994 (Parliamentary Paper 171 of 1994), p.
5.
- ibid., p. 13.
- Senate Privileges Committee, Parliamentary Privilege
Precedents, Procedures and Practice in the Australian Senate
1966-1999, (76th Report), June 1999. Cited:
http://www.aph.gov.au/senate/committee/priv_ctte/report_76/index.htm,
accessed 9 May 2002; Mantziaris op. cit.; Duncan Kerr, 'Mr Egan and
the Legislative Council: Federal Implications', Australian Bar
Review, vol. 19, pp. 67-88.
- Submission of the Administrative Law Section of the Law
Institute of Victoria, cited in the House of Representatives
Committee of Privileges, Report Concerning Proposal to Transfer
to the Federal Court Certain Responsibilities in Relation to
Disputed Claims for Public Interest Immunity, November 1994.
- Clerk of the Senate, Correspondence to the Senate Select
Committee on a Certain Maritime Incident, 22 March and 5 April
2002; Clerk of the House of Representatives, Correspondence to the
Senate Select Committee on a Certain Maritime Incident, 3 April and
8 April 2002; 'Clerks trade insults on political power', The
Sydney Morning Herald, 13 April 2002.
- Clerk of the Senate, 22 March 2002, op. cit., p. 2.
- ibid, p. 4.
- Clerk of the House of Representatives, 3 April 2002, op. cit.,
p. 12.
- See, for example, Diana Woodhouse, 'The Role of Ministerial
Responsibility in Motivating Ministers to Morality', in Jenny
Fleming and Ian Holland, op. cit., pp. 37-48.
- See, e.g. Editorial, 'Ministerial advisers should have to
testify', The Age, 8 March 2002; Editorial, 'Parties
conspire to toss truth overboard', The Australian, 13
March 2002.
- Editorial, 'Ministerial advisers should have to testify', op.
cit.
- Senator R. Kemp, Senate, Debates, 7 February 1995, p.
608.
- Professor Weller, Senate Select Committee on a Certain Maritime
Incident, Hearings, 18 April 2002, p. 1220.
- ibid., p. 1219.
- Senator R. Hill, Senate, Debates, 3 March 1994.
- ibid., p. 1418.
- ibid., p. 1419.
- Foreign Affairs, Defence and Trade Legislation Committee,
Estimates Hearings, 20 February 2002, p. 137.
- Department of the Prime Minister and Cabinet, op. cit., p. 6,
para 2.22.
- Jenny Fleming and Ian Holland, 'The Case for Ministerial
Ethics', in Jenny Fleming and Ian Holland, op. cit., p. 6.
- This is assuming that the confrontation, if it comes, will come
in the Senate, and that the Senate is still elected in a way that
means the government of the day does not necessarily control the
Senate. Both of these conditions seem likely. Of course, were a
scandal to emerge during a period of minority government, the
showdown could develop in the House of Representatives.
- Senate Select Committee on a Certain Maritime Incident,
Committee Resolution 22/05/02, 'Witnesses - Former Minister and
Ministerial Staff', paragraph 4.
- ibid., paragraph 3(a).
- Kirsten Lawson, 'Sydney lawyer to probe Reith and staffers'
roles in overboard affair', The Canberra Times, 29 May
2002.
- UK Cabinet Office, Portrait of a Profession Revisited,
op. cit.
Appendix 1: Answers to
Parliamentary Questions about Numbers of Ministerial
Staff
This appendix lists select sources of
information about numbers of ministerial staff in the records of
Parliament, and provides notes that explain some of the variations
between the figures. The figures shown in bold are
comparable, subject to variations only in whether or not they
include currently vacant positions, and whether or not they include
the personal assistant to the PM's spouse.
Date
|
Figure
|
Source
|
Context
|
Basic format of answer
|
Notes
|
20 April 1972
|
155
|
House of Representatives Debates, 27 April 1972, pp. 2182-5
|
Question on Notice no. 5080
|
Table of numbers by position classification by minister only
|
Question phrased as 'what is the staff of each minister'.
Definitely excludes staff of the opposition. Not known whether
table includes vacancies.
|
25 November 1974
|
209
|
House of Representatives Debates, 5 Dec 1974, pp. 4844-50
|
Question on Notice no. 1862
|
Table of names by position classification by minister only, plus
table of DLOs
|
Figure of 227 (cited by Forward, 1977) includes DLOs. Definitely
excludes staff of the opposition. NPLV
|
1975
|
242
|
House of Representatives Debates, 10 June 1981, p. 3511
|
Question on Notice no.. 442
|
Single number, with some breakdown
|
Comprised 94 'ministerial officers consultants, et cetera', 31
'press secretary and related grades' and 117 'support' staff.
Question phrased as 'how many persons are employed on each
ministerial staff?'
|
8 March and 5 April 1976
|
139
|
Senate Debates, 16 March 1976, pp. 526-7; 18 May 1976, pp.
1690-3
|
Questions on Notice nos 79-84
|
Table of names by position classification by minister and
opposition office bearer
|
The figure of 138 cited by Forward (1977) appears to be a
counting error. In his reply, Senator Withers described the total
establishment as 166, and contrasted this with the equivalent
figure at 10 November 1975 of 242. The 166 would have included
staff of the opposition (though the total shown in the Hansard
answer to the question is 163). NPLV
|
28 February 1981
|
194
|
House of Representatives Debates, 2 April 1981, p. 1326
|
Question on Notice no. 530
|
Single number only (for each of two dates)
|
Question phrased as 'what is the current establishment for
Ministerial staff' (whereas previous Qs asked about who were the
ministerial staff). Thus this answer may include vacancies. The
answer also repeats the figure for Whitlam's last government of
242. Probably includes staff of leaders of the opposition (see
below).
|
1981
|
190
|
House of Representatives Debates, 10 June 1981, p. 3511
|
Question on Notice no. 442
|
Table of position classifications for ministry
|
Comprised 65 'ministerial officers consultants, et cetera', 8
'press secretary and related grades' and 117 'support' staff.
Question phrased as 'how many persons are employed on each
ministerial staff?' Excludes the staff of the Government
Information Unit (GIU).
|
1 May 1981
|
165
|
Senate Debates, 19 August 1981, pp. 99-108
|
Question on Notice no. 486
|
Table of names by position classification by minister and
opposition office bearer, and tables of names for all members
|
PLV. Requires reconciliation with the result above. Most likely
explanation is that the figure of 194 comprises 165 ministerial
staff, 2 parliamentary secretary staff and 27 opposition leaders'
staff.
|
23 March 1982
|
N/A
|
House of Representatives Debates, 6 and 7 May 1982, pp.
2540-1
|
Question on Notice no. 4234
|
Table of position classification by Cabinet
minister only
|
Not comparable to other data as comprises Cabinet only: 97
Cabinet ministerial staff. Excludes 1 full-time and 1 part-time
consultant.
|
December 1982
|
167
|
Senate Estimates Committee D, Additional Information Received,
Volume 1, May 1990, pp. 25-31, 48-9.
|
Question asked in Senate Estimates Hearings, 15 May 1990, p.
D24
|
Table of position classifications for ministry
|
Question phrased as 'the numbers employed on Ministerial staff'.
The number of staff actually employed was 185. Number excludes
consultants, staff of the GIU, and shadow ministry. Excludes 26
positions classified as 'electorate secretary'. See note *
below.
|
March 1983
|
163
|
Senate Estimates Committee D, Additional Information Received,
Volume 1, November 1990, p. 130-6.
|
Question asked in Senate Estimates Hearings: 13 September 1990,
p. D52
|
Table of position classifications by minister, plus separate
tables for NMLS, shadow ministry, etc.
|
Question phrased as 'the numbers of staff positions currently
available to Ministers'. Number excludes shadow ministry, and
probably excludes units such as the GIU. Excludes 27 positions
classified as 'electorate secretary'. See note * below.
|
15 June 1983
|
163
|
Senate Debates, 13 September 1983, pp. 610-3
|
Question on Notice no. 218
|
Table of names by position classification by minister and
opposition office bearer, and tables of names for all members
|
PLV. Three part-time consultants and one personal assistant to
the PM's wife not included.
|
1 May 1985
|
166
|
House of Representatives Debates, 23-24 May 1985, pp. 3174-5
|
Question on Notice no. 826
|
|
Question phrased as 'how many ... ministerial staff ... work for
each minister'. Answer is a table of numbers, but question implies
NPLV. Comprises 157 ministerial staff and nine leaders' staff. 15
consultants and one personal assistant to the PM's wife not
included.
|
Annual, 1 July each year, 1988 to 1998
|
various
|
House of Representatives Debates, 17 February 2000, pp.
13854-5
|
Question on Notice no. 450
|
Table of position classification aggregated for ministry
|
Question phrased as 'how many staff were employed by ministers
... at 1 July each year since 1988', thus may not exclude
electorate staff. Vacant positions probably excluded. The unusual
feature of the figures in this answer is that they are higher than
all other figures for the period 1988 to around 1997, but the
figures for 1 July 1998 (281.5) and 15 February 1999 (294) are
exactly in line with other figures below.
|
c. December 1988
|
169
|
Senate Debates, 13 December 1988, pp. 4128-31
|
Question on Notice no. 581
|
Table of position classifications by minister
|
Question phrased as 'what is the current number ... of the
ministerial staff in the offices of the ... Ministers'. Answer is
missing staff numbers for nine ministers. Number excludes personal
assistant to the PM's wife, consultants, staff of the National
Media Liaison Service (NMLS), and Ministerial Media Group (MMG).
Extrapolating for missing nine ministers suggests a staffing
establishment of approximately 220.
|
c. May 1990
|
235
|
Senate Estimates Committee D, Additional Information Received,
Volume 1, May 1990, pp. 25-31, 48-9.
|
Question asked in Senate Estimates Hearings, 15 May 1990, p.
D24
|
Table of position classifications by minister
|
Question phrased as 'the numbers employed on Ministerial staff'.
The number of staff actually employed was 208. Number excludes
consultants, staff of the NMLS, MMG, Government Caucus Committees
Secretariat (GCCS) and shadow ministry. Includes 36 positions
classified as 'personal secretary': see note * below.
|
April 1990
|
235
|
Senate Estimates Committee D, Additional Information Received,
Volume 1, November 1990, p. 130-6.
|
Question asked in Senate Estimates Hearings, 13 September 1990,
p. D52
|
Table of position classifications for ministry, plus separate
tables for NMLS, shadow ministry, etc.
|
Question phrased as 'the numbers of staff positions currently
available to Ministers'. Number excludes shadow ministry, and
probably excludes units such as the NMLS. Reports number of
positions classified as 'electorate secretary' as zero: see note *
below.
|
31 August 1990
|
239
|
Senate Estimates Committee D, Additional Information Received,
Volume 1, November 1990, pp. 79-128.
|
Question asked in Senate Estimates Hearings, 13 September 1990,
p. D52
|
Table of names by position classification by minister and
opposition office bearer
|
PLV. Excludes personal assistant to the PM's wife, consultants,
staff of parliamentary secretaries, the NMLS, MMG, GCCS and shadow
ministry.
|
c. December 1990
|
240
|
Senate Debates, 21 December 1990, pp. 6388-95
|
Question on Notice no. 307
|
Table of names by position classification by minister and
opposition office bearer
|
PLV. Excludes personal assistant to the PM's wife, consultants,
staff of parliamentary secretaries, the NMLS, MMG, GCCS and shadow
ministry.
|
31 March 1991
|
244
|
Senate Debates, 15 May 1991, pp. 3430-54
|
Question on Notice no. 593
|
Table of names by position classification by minister and other
staffing groups
|
PLV. Answer explicitly only staff employed under MoPS Act.
|
30 November 1993
|
243
|
Senate Finance and Public Administration Committee, Budget
Estimates 1994-95, Additional Information Received, Volume 3, pp.
395-6
|
Question asked in Senate Estimates Hearings, 2 December 1994, p.
F&PA126
|
Single number only
|
Question phrased as 'whether there had been any changes in
Ministers' staff numbers over the past 12 months'.
|
31 January 1994
|
239
|
Senate Estimates Committee E, Additional Information Received,
Volume 1, March 1994, pp. 20-4.
|
Question asked in Senate Estimates Hearings, 24 February 1994
pp. E83-4.
|
Table of position classifications for ministry and other
staffing groups
|
PLV. Excludes personal assistant to the PM's wife, consultants,
staff of parliamentary secretaries, the NMLS, MMG, GCCS and shadow
ministry.
|
30 November 1994
|
240
|
Senate Finance and Public Administration Committee, Budget
Estimates 1994-95, Additional Information Received, Volume 3, pp.
395-6
|
Question asked in Senate Estimates Hearings, 2 December 1994, p.
F&PA126
|
Single number only
|
Question phrased as 'whether there had been any changes in
Ministers' staff numbers over the past 12 months'.
|
c. December 1994
|
239
|
House of Representatives Debates, 5 December 1994, p. 3958
|
Question on Notice no. 1627
|
Single number
|
Question phrased as 'how many staff positions ... are assigned,
in addition to a parliamentarian's basic entitlement of three
positions, to Ministers ...' Number excludes staff of parliamentary
secretaries, MMG, NMLS, Backbench Committee Secretariat.
|
30 April 1995
|
250
|
Senate Finance and Public Administration Committee, Budget
Estimates 1995-96, Additional Information Received, Volume 1, June
1995, pp. 86-7, 96-7
|
Question asked in Senate Estimates Hearings, 30 May 1995, pp.
F&PA 147-8
|
Table of position classifications for ministry and others. Table
of numbers for opposition, ministers, parliamentary secretaries and
others
|
Question phrased as 'how many staff positions, not arising from
a Member or Senator's basic entitlement of three positions, have
been assigned to ... Government Ministers'. Number excludes
consultants, staff of the NMLS, and staff of parliamentary
secretaries. May include personal assistant to PM's wife.
|
30 June 1996
|
230
|
Senate Debates, 21 August 1996, p. 2871
|
Question on Notice no. 117
|
Single number only
|
Question phrased as 'how many ministerial staff does the
Government currently employed and how many are employed under the
Members of Parliament (Staff) Act'. Number excludes electorate
staff. Probably excludes staff of parliamentary secretaries.
|
31 May 1997
|
250
|
Senate Finance and Public Administration Committee, Budget
Estimates 1997-98, Additional Information Received, Volume 4, pp.
695-7
|
Question asked in Senate Estimates Hearings, 4 June 1997, p.
F&PA453
|
Table of position classifications by minister and others
|
PLV. Excludes consultant. Number excludes electorate staff,
staff of parliamentary secretaries, Government Members Secretariat
(GMS), Cabinet Policy Unit (CPU) and government whips' staff.
|
31 May 1997
|
296
|
Senate Finance and Public Administration Committee, Estimates
Hearings, 4 June 1997, p. 453
|
Questioning of Departmental staff by Senator Ray
|
Single number, verbal response to question
|
Calculated as for data for 1 October 1999 below.
|
3 June 1998
|
326.5
|
Senate Finance and Public Administration Committee, Estimates
Hearings, 3 June 1998, p. 307
|
Questioning of Departmental staff by Senators Faulkner and
Ray
|
Single number, verbal response to question
|
Calculated as for data for 1 October 1999 below.
|
c. October 1998
|
292
|
Senate Finance and Public Administration Committee, Estimates
Hearings, 29 May 2001, p. 250
|
Comment by Senator Ray during estimates hearings
|
Not contradicted by departmental staffer being questioned
|
Not clear whether number includes any of the following: staff of
parliamentary secretaries, GMS, CPU and government whips'
staff.
|
1 December 1998
|
289
|
Senate Debates, 8 March 1999, pp. 2428-30
|
Question on Notice no. 314
|
Tables of position classifications by minister and others
|
PLV. Question phrased as 'what is the government ministerial
staffing establishment under the Members of Parliament (Staff)
Act'. Number excludes staff of parliamentary secretaries, GMS and
CPU.
|
1 October 1999
|
296
|
Senate Debates, 3 April 2000, pp. 13206-7
|
Question on Notice no. 1687
|
Tables of position classifications by minister and others
|
PLV. Question phrased as 'what is the government ministerial
staffing establishment under the Members of Parliament (Staff)
Act'. Number excludes staff of parliamentary secretaries, GMS and
CPU.
|
1 October 1999
|
342
|
As above
|
As above
|
As above
|
This figure is the total 'ministerial staffing establishment
under the Members of Parliament (Staff) Act'. It includes staff of
parliamentary secretaries, GMS, CPU, staff of government whips, and
staff of the Senate National Party Leader.
|
1 December 1999
|
294
|
Senate Finance and Public Administration Committee, Budget
Estimates 1999-2000, Additional Information Received, Volume 4,
April 2000, pp. 924-6
|
Question put on notice by Senator Faulkner, made during
estimates hearings
|
Tables of position classifications by minister and others
|
PLV. Number excludes staff of parliamentary secretaries, GMS and
CPU.
|
1 February 2000
|
344
|
Senate Finance and Public Administration Committee, Estimates
Hearings, 8 February 2000, p. 198
|
Questioning of Departmental staff by Senator Ray
|
Single number, verbal response to question
|
Calculated on same basis as for 1 October 1999 figure of
342.
|
20 February 2001
|
303.4
|
Senate Finance and Public Administration Committee, Additional
Budget Estimates 2000-01, Additional Information Received, Volume
3, August 2001, pp. 677-80
|
Question asked in Senate Estimates Hearings, 19-23 February
2001, pp. F&PA 155-6
|
Tables of position classifications by minister and others
|
Number excludes staff of parliamentary secretaries, GMS and
CPU.
|
1 March 2001
|
355.4
|
Senate Finance and Public Administration Committee, Estimates
Hearings, 29 May 2001, p. 251
|
Questioning of Departmental staff by Senator Ray
|
Single number, verbal response to question
|
Calculated on same basis as answer given in estimates for 1
February 2000 staffing establishment, above.
|
May 2001
|
360 or 364
|
Senate Finance and Public Administration Committee, Estimates
Hearings, 29 May 2001, p. 250
|
Questioning of Departmental staff by Senator Ray
|
Single number, verbal response to question
|
Calculated on same basis as answer given in estimates for 1
February 2000 staffing establishment, above. Correct answer was
probably 360.
|
1 March 2002
|
361.5
|
Senate Finance and Public Administration Committee, Estimates
Hearings, 30 May 2002, pp. 417, 419
|
Questioning of Departmental staff by Senators Ray and
Faulkner
|
Single number, verbal response to question
|
Calculated on same basis as answer given in estimates for 1
February 2000 staffing establishment, above.
|
1 May 2002
|
365.6
|
Senate Finance and Public Administration Committee, Estimates
Hearings, 30 May 2002, p. 416
|
Questioning of Departmental staff by Senators Ray and
Faulkner
|
Single number, verbal response to question
|
Calculated on same basis as answer given in estimates for 1
February 2000 staffing establishment, above.
|
November 2002
|
319.1
|
Senate Finance and Public Administration
Committee, Additional Budget Estimates 2002–03, Additional
Information Received, Volume 2, March 2003, p. 220. |
Document tabled at Committee hearings, 20 November
2002. |
Tables of position classifications by minister and
others |
Number excludes staff of parliamentary
secretaries, GMS and CPU. |
November 2002 |
371.6 |
Senate Finance and Public Administration
Committee, Additional Budget Estimates 2002–03, Additional
Information Received, Volume 2, March 2003, p. 221 |
Document tabled at Committee hearings, 20 November
2002. |
Tables of position classifications by minister and
others |
Includes staff of parliamentary secretaries, GMS,
CPU, staff of government whips, and staff of the Senate National
Party Leader. |
Notes:
* There is confusion regarding whether some
electorate staff are included in the totals. It seems likely that
the confusion has its origins in answers to questions asked during
estimates hearings in 1990. In those hearings (both in May and
again in September) the Opposition sought comparative data on
ministerial staff numbers for 1982, 1983 and 1990. The former dates
involved data for the final year of the Fraser Government and
pre-dated the introduction of the MoPS Act, while the last date was
for the (then) Hawke Government and post-dates the MoPS Act.
Whether because of re-classifications of positions, the
introduction of the Act, or because the data were 'massaged' to
make the contrast less striking, the 1983 data included electorate
secretaries, while the 1990 data excludes them, but includes a
similar number of staff classified as personal secretaries.
NPLV The staffing total was derived by adding
up positions in a list, and none of those positions was listed as
vacant. Implies that the total establishment may have been larger
than indicated in this list.
PLV The staffing total was derived by adding up
positions in a list, and some positions were listed as vacant.
c. about.
As the Ministerial Code explains, the employment
of special advisers on the one hand adds a political dimension to
the advice available to Ministers, and on the other provides
Ministers with the direct advice of distinguished experts in their
professional field, while reinforcing the political neutrality of
the permanent Civil Service by distinguishing the source of
political advice and support (paragraph 50).
2. Special advisers are employed to help
Ministers on matters where the work of Government and the work of
the Government Party overlap and it would be inappropriate for
permanent civil servants to become involved. They are an additional
resource for the Minister providing advice from a standpoint that
is more politically committed and politically aware than would be
available to a Minister from the Civil Service.
3. The sorts of work a special adviser may do if
their Minister wants it are
i. reviewing papers going to the Minister, drawing attention to
any aspect which they think has Party political implications, and
ensuring that sensitive political points are handled properly. They
may give advice on any aspect of departmental business, including
giving advice to their Minister when the latter is taking part in
Party political activities;
ii. "devilling" for the Minister, and checking facts and
research findings from a Party political viewpoint;
iii. preparing speculative policy papers which can generate
long-term policy thinking within the Department, including policies
which reflect the political viewpoint of the Minister's Party;
iv. contributing to policy planning within the Department,
including ideas which extend the existing range of options
available to the Minister with a political viewpoint in mind;
v. liaising with the Party, to ensure that the Department's own
policy reviews and analysis take full advantage of ideas from the
Party, and encouraging presentational activities by the Party which
contribute to the Government's and Department's objectives;
vi. helping to brief Party MPs and officials on issues of
Government policy;
vii. liaising with outside interest groups including groups with
a political allegiance to assist the Minister's access to their
contribution;
viii. speechwriting and related research, including adding Party
political content to material prepared by permanent civil
servants;
ix. representing the views of their Minister to the media
including a Party viewpoint, where they have been authorised by the
Minister to do so;
x. providing expert advice as a specialist in a particular
field;
xi. attending Party functions (although they may not speak
publicly at the Party Conference) and maintaining contact with
Party members;
xii. taking part in policy reviews organised by the Party, or
officially in conjunction with it, for the purpose of ensuring that
those undertaking the review are fully aware of the Government's
views and their Minister's thinking and policy.
Status and conduct as temporary civil
servants
4. Special advisers are temporary civil servants
appointed under Article 3 of the Civil Service Order in Council.
They are exempt from the general requirement that civil servants
should be appointed on merit and behave with political impartiality
and objectivity so that they may retain the confidence of future
governments of a different political complexion. They are otherwise
required to conduct themselves in accordance with the Civil
Service Code, attached at A. Their appointment ends at the end
of the Administration which appointed them.
5. Special Advisers should conduct themselves
with integrity and honesty. They should not deceive or knowingly
mislead Parliament or the public. They should not misuse their
official position or information acquired in the course of their
official duties to further their private interests or the private
interests of others. They should not receive benefits of any kind
which others might reasonably see as compromising their personal
judgement or integrity. They should not without authority disclose
official information which has been communicated in confidence in
Government or received in confidence from others. The principles of
public life set down by the Committee on Standards in Public Life,
attached at B, provide a framework for all public servants
6. Special Advisers should not use official
resources for Party political activity. They are employed to serve
the objectives of the Government and the Department in which they
work. It is this which justifies their being paid from public funds
and being able to use public resources, and explains why their
participation in party politics is carefully limited. They should
act in a way which upholds the political impartiality of civil
servants and does not conflict with the Civil Service Code. They
should avoid anything which might reasonably lead to the criticism
that people paid from public funds are being used for Party
political purposes. They stand outside the departmental hierarchy.
They should not be responsible for budgets or for the line
management of permanent civil servants including their recruitment
and matters covered by their contract of employment such as their
appraisal, reward, discipline and promotion.
7. Article 3(3) of the Civil Service Order in
Council allows the Prime Minister to appoint up to three special
advisers in No.10 who are not subject to the general restriction
that their role is to provide advice to a Minister.
Contacts with the media
8. Special advisers are able to represent
Ministers' views on Government policy to the media with a degree of
political commitment that would not be possible for the permanent
Civil Service. Briefing on purely Party political matters should
however be handled by the Party machine.
9. All contacts with the news media should be
authorised by the appointing Minister and be conducted in
accordance with the Guidance on the Work of the
Government Information Service (GWGIS), issued on behalf of
the Prime Minister. Departmental Heads of Information are
responsible for managing press and publicity operations in their
department, and should be kept informed of Special Advisers'
contacts with the news media not only to ensure consistency of
briefing, but also to ensure that contacts are recorded. Heads of
Information are the department's source of advice on the GWGIS.
10. Special Advisers must not take public part
in political controversy whether in speeches or letters to the
Press, or in books, articles or leaflets; must observe discretion
and express comment with moderation, avoiding personal attacks; and
would not normally speak in public for their Minister or the
Department.
Relations with the Government
Party
11. Special Advisers provide advice on the
development of Government policy and its presentation. It is in
these two areas of activity that Government and Party may
overlap.
12. The Civil Service has no monopoly of policy
analysis and advice. The Government takes account of views from
many sources of which the Government Party is legitimately one.
Although public funds and resources must not be used to support the
contribution of such views, the Government may need to liaise with
the Party, as it does with others, to obtain a full and accurate
understanding of the Party's policy analysis and advice.
13. The Government needs to present its policies
and achievements to the public in order to aid understanding and so
maximise the effectiveness of its policies, and this is a
legitimate use of public funds and resources. It would be damaging
to the Government's objectives if the Party took a different
approach to that of the Government, and the Government therefore
needs to liaise with the Party to make sure that Party publicity is
factually accurate and consistent with Government policy. To secure
this consistency, the Government will also want to make sure that
Party MPs and officials are briefed on issues of Government
policy.
14. In providing a channel of communication in
these areas of overlap, special advisers paid from public funds
have a legitimate role in support of the Government's interest,
which they can discharge with a degree of party political
commitment and association which would not be permissible for a
permanent civil servant. In all contacts with the Party, special
advisers must observe normal Civil Service rules on confidentiality
unless specifically authorised, in a particular instance, by their
appointing Minister.
15. Special advisers must not take part in the
work of the Party's national organisation; and although they may
continue, during Elections, to give specialist or political advice
to their Ministers they must be careful not to take any active part
in the campaign going beyond the provision of such advice.
16. Where a special adviser wishes to undertake
work for a political Party which does not arise out of government
business they may do this either in their own time, outside office
hours, or under a separate contract with the Party, working
part-time for the government. Detailed rules on their involvement
in political activities are set out below.
Involvement in politics in a private
capacity: national political activities
17. Special Advisers must not take part in
national political activities, which are: holding, in a party
political organisation, office which impinges wholly or mainly on
party politics in the field of Parliament, the Scottish Parliament,
the National Assembly for Wales, the Northern Ireland Assembly or
the European Parliament; speaking in public on matters of national
political controversy; expressing views on such matters in letters
to the Press, or in books, articles or leaflets; being announced
publicly as a candidate or prospective candidate for Parliament,
the Scottish Parliament, the National Assembly for Wales, the
Northern Ireland Assembly or the European Parliament; and
canvassing on behalf of a candidate for the institutions or on
behalf of a political party.
18. In particular:
i. if Special Advisers are publicly identified as a candidate or
prospective candidate for Parliament, the Scottish Parliament, the
National Assembly for Wales, the Northern Ireland Assembly or the
European Parliament, either by adoption by a political party or in
any other way, they must resign their appointment;
ii. if they wish to take part in a General, European or
by-election campaign, or to help in a Party headquarters or
research unit during such a campaign, they must first resign their
appointment. If they wish their appointment to carry on during a
campaign, they may continue to give specialist or political advice
to their Minister as before, but they must be careful not to take
any active part in the campaign going beyond the provision of such
advice. They should not, for example, take part in public
meetings.
iii. if, with the approval of their Minister, they wish to
assist with other party political matters such as a leadership
campaign, they may do so while on paid or unpaid leave or at times
which do not interfere with their normal duties, for example, out
of office hours.
Involvement in politics in a private
capacity: local political activities
19. With the approval of their Minister, Special
Advisers may undertake, or continue to undertake, all forms of
local political activity, but not local activities in support of
national politics. They must comply with any conditions laid down
by their Department.
20. Local political activities are: candidature
for, or co-option to, local authorities; holding, in a party
political organisation, office impinging wholly or mainly on party
politics in the local field; speaking in public on matters of local
political controversy; expressing views on such matters in letters
to the Press, or in books, articles or leaflets; and canvassing on
behalf of candidates for election to local authorities or a
political organisation.
21. If Special Advisers take part in local
political activities, they must at all times observe discretion,
take care to express comment with moderation and avoid personal
attacks. In particular, if they serve on a local authority they
must adhere to the following points:
i. they should not speak publicly or in the Council, or vote, on
matters for which their Minister has responsibility;
ii. they should not serve on any committee considering such
matters;
iii. they should not take part in deputations or other
representations to Ministers;
iv. they should declare an interest in relation to any case or
application which comes before the Council in which their
Department is involved;
v. they should observe discretion in relation to policies for
which other Ministers are responsible, in order to avoid causing
them embarrassment;
vi. they should not disclose to the Council privileged
information obtained in the course of their duties.
Complaints
22. Any civil servant who believes that the
action of a special adviser goes beyond that adviser's authority or
breaches the Civil Service Code should raise the matter immediately
with the Secretary of the Cabinet or the First Civil Service
Commissioner, directly or through a senior civil servant.
July 2001