Chapter 7 - Accountability
Many of the questions and
concerns that animated the Select Committee’s inquiry arose from considerations
of accountability. These
revealed forcefully what academic analysts have recently been asserting – that
accountability is ‘a notoriously imprecise term’, something that must be approached
‘as a problem with multiple levels and more than one possible meaning’ and that balancing accountability
with the need for flexibility of action is ‘the ongoing challenge of public
policy in Australia.’
This chapter explores some of
these major themes by drawing on particular examples relevant to the ‘children
overboard’ controversy, and teasing out aspects which reveal how, in practice,
people understand and exercise their accountability responsibilities.
Consideration will be given to the actions and decisions of some key officials
involved, up to and including ministerial staff. Attention will then turn to
broader questions of how reporting arrangements, lines of authority, and
administrative structures facilitate or impede accountability. Finally,
consideration will be given to how accountability might be strengthened and
what practical mechanisms might be put in place to promote and enhance it.
Accountability in the Public Sector
The Committee acknowledges the
complexity of accountability in modern governance arrangements, and accepts the
fact that there is a continuum of accountability relationships, both vertical
and horizontal, between the public service, the government, the parliament and Australia’s
citizens. Nevertheless, there are some fundamental tenets and practices of
accountability that are well established in public administration, even though
these received notions of accountability are increasingly being stretched.
Legislative prescription for
public service accountability is contained in several pieces of legislation,
including the Public Service Act 1999, and
the Financial Management and
Accountability Act 1997. Various sets of supporting guidelines are also developed
and distributed by the Public Service Commissioner. The Chief Executive’s
Instructions are explicit about accountability issues. Other material is also
promulgated dealing with the accountability attaching to particular arenas of
activity – for example, the Commonwealth
Procurement Guidelines (Department of Finance and Administration) and the
Prime Minister’s Guide on Key Elements of
Ministerial Responsibility (Department of the Prime Minister and Cabinet).
Accountability within the
context of the public service is usually described in terms of obligations
arising from the relationships of responsibility or authority which pertain
between the public service, ministers and the parliament. Departments and
public servants must account for their performance, and accept sanctions or
redirection; there are legal
obligations to be responsive to the legitimate interests of affected parties;
invariably a duty of care is involved; citizens and legislators have a right to
information about the expenditure of public funds and how decisions are made.
ministers have, under the constitutional doctrine of responsible government,
both collective and individual responsibilities. A minister is accountable to
the parliament for the policies and actions implemented by his or her
There are both legal and
conventional obligations attached to the performance of ministers - along with
political requirements – and these contain their own version of sanction and
redirection. The parliament expects ministers to tell the truth. At the heart
of the debating and scrutiny process is the securing of sound information.
Ministers must immediately correct any mistake they may have conveyed to
parliament, and the making of a deliberately misleading statement is usually
considered a contempt.
Against this background of
quite unambiguous accountability requirements, at both departmental and
ministerial level, key features of the management and distribution of
information about the ‘children overboard’ incident and its aftermath stand out
as inimical to the transparency, accuracy and timeliness requirements that are
vital for proper accountability. As a consequence, fair dealing with both the
public and the agencies involved was seriously prejudiced. That such
circumstances should have prevailed in the politically significant context of
an election campaign is a matter for grave concern.
Ministers, as the focus for the
accountability of subordinates, and as the agents of accountability to
parliament must in their turn promote transparency and ensure the integrity of
information that is communicated to the public and the parliament. The
Committee has serious concerns in this regard and these are explored in more
detail later in this chapter.
Accountability and the Australian Defence
Before embarking on a detailed
account of the accountability and leadership structures in the ADO in the
context of ‘children overboard’, it is important to set out briefly the
traditional relationship between Australia’s defence forces, the government,
and the Australian public. In the Committee’s view, key ministerial decisions
about the way in which Defence’s role was communicated to the Australian public
had a significant bearing upon the way the ‘children overboard’ fiasco
unfolded. These decisions turned on their head some important conventions
embedded in how the ADF usually related to the Australian public about its
operations, and upset some subtle balances in that traditional relationship.
This traditional relationship
may be characterised in the following terms:
Military force is exercised in
the interests of the nation as a whole as determined by the government of the
day. The government exercises a stewardship over the Defence Force on behalf of
The Defence Force has a duty to
stay out of party politics and the government has an obligation to avoid
drawing the military into party political issues.
Defence policy has been
Military personnel may speak
about operational matters as they see fit, consistent with security and
operational requirements, while matters of policy remain open for comment only
In the Committee’s view, the
actions of the former minister, Mr Reith, and of key members of his staff, undermined
important aspects of the relationship between the ADF and the government. They
did this by inserting themselves into both the military and civilian chains of
command and by insisting that all public communications about Operation Relex
be centralised in the minister’s office.
The Committee has commented
elsewhere on Defence Instructions (General) No. 8 and on the extraordinarily
restrictive Public Affairs Plan that the government applied to Operation Relex.
In the words of one Defence commentator: ‘A form of censorship existed which
prevented military personnel from providing information and correcting
misinformation in the normal way.’
By making the minister’s office
the interface between the ADF, the Defence Department and the public, the minister
weakened the trust that needed to prevail between these groups. It also
substantially undermined both the CDF and the Secretary in that they could not
exercise their own discretion concerning information provided to the public.
The result was that an important aspect of public accountability evaporated.
The diarchy and accountability
The dual leadership of the
Australian Defence Organisation by the Secretary of the Department of Defence
and the Chief of the Defence Force, and the mix of military and civilian
regimes which comprise the ADO, has important implications for how
accountability is rendered under such conditions.
For the ADF, the military arm
of the organisation, accountability is effected primarily through the ‘chain of
command’ to the Chief of Defence Force (CDF), who has command authority over
the whole of the ADF and is the principal military adviser to the government.
This is not to deny that those outside the chain of command also have important
accountability obligations – and in any event the transiting of decisions and
actions from within to without the ADF chain of command is not uncommon. But it
has been repeatedly stressed by service personnel that the concept of a ‘chain
of command’ – which entails a chain of iterative reporting and thus
accountability - is fundamental to the way service personnel go about their
business, whether that be routine or during a military operation.
Accountability requirements for
the civilian arm of the ADO, the Department of Defence, are basically those applicable
in any other public service agency. There are some special features of that
accountability arising from the joint responsibilities of the Secretary and the
CDF under Section 9A of the Defence Act
1903 and the responsibilities and authority of the Secretary under the Financial Management and Accountability Act
1997. These are set out in a ministerial directive.
The dual leadership of the
Australian Defence Organisation is formally expressed by the term ‘diarchy’, a
term regarded as ‘useful ... for characterising what is an understandably rare
organisational construct.’ The
Secretary has further elaborated the concept as follows:
The diarchy is not about striking a balance between ‘opposing
powers’. It is about bringing together the responsibilities and complementary
abilities of public servants and military officials, to achieve the Defence
outcome sought by the Government of the day. Those complementary abilities are
about, on the one hand, giving the CDF unfettered focus on the command of the ADF
and, on the other hand, allocating clear responsibility to the Secretary for
the resource, policy and accountability
functions [emphasis added] of the largest Department of the Commonwealth
diarchy may have served the Australian Defence Organisation well during the
period where received notions of its purpose emphasised its fundamentally
military functions. Until 2001, Defence’s mission was ‘The prevention or defeat
of armed force against Australia or its interests’. During 2001-02 this outcome
became ‘to defend Australia and its national interests’, a considerable broadening of the
scope of the ADO’s responsibilities.
that its mission has shifted to ‘defend Australia and its national interests’
there are new tasks and functions in the ADO landscape that may well demand a
more nuanced articulation of the diarchy. In the Committee’s view, the way the
diarchy impacted upon the ‘children overboard imbroglio’ highlights the need
for such refinement.
In his evidence, Dr Hawke
repeatedly asserted what he described as his ‘pure view’ of the demarcation in
responsibilities between the Secretary and the CDF concerning ‘operational’ or
‘chain of command’ issues. In Dr
Hawke’s view, the issue of claims about children being thrown overboard from SIEV
4 was ‘an operational matter affecting the chain of command’ which was being
‘run by CDF’ who was ‘in daily contact with the minister’.
So he was providing the
advice and discussing these matters with the minister, not me. I do not think I
have a role in it—and I suspect if I attempted to, the ADF would be up in arms
does not seem, however, that the CDF and the Minister necessarily viewed the
operational / bureaucratic demarcation of responsibilities in the way that Dr
Hawke himself did. While the responsibilities and
accountabilities of the ‘diarchy’ incumbents may appear jointly and severally
clear - at least on paper – it seems to the Committee that the Secretary, CDF
and Minister were not entirely at one when it came to how each interpreted what
the diarchy required, and more importantly, how each acted within that
example, Dr Hawke regarded his involvement in attempts to correct the record
about falsely attributed photographs as a proper intervention, and consistent
with his accountability obligations to the minister. However,
when it came to the public release of the photographs, those decisions were
made by the minister in consultation with the CDF, not Dr Hawke, suggesting
that they did not observe operational / bureaucratic distinctions in the way
they were articulated by Dr Hawke.
CDF appears not to have sought to engage with Dr Hawke at all on the issue of
the handling of photos within the administrative chain. The CDF was quite
content to engage directly with Minister Reith about the photos, and approved
their release via AVM Titheridge and without reference to Dr Hawke.
Committee notes, however, that Dr Hawke was involved in facilitating the
preparation and dissemination of Vice Admiral Shackleton’s ‘clarifying
statement’, even though it went to questions of advice to the minister that
were ostensibly about ‘operational’ matters.
Dr Hawke has made clear his reluctance to insert himself into or comment on
‘operational’ matters, it seems that they are not beyond his ken. Evidence
provided by Admiral Barrie to Senate Estimates suggests that Dr Hawke was
probably reasonably well-informed about operational matters.
Did you raise any of the matters raised with you by either Rear Admiral Richie
or Rear Admiral Smith with the Secretary of Defence, Dr Hawke?
Adm. Barrie—I would
have to say that I would be surprised if I had not because the secretary of the
department and I have a very close relationship.
Could you outline for the benefit of the committee ...what the nature of those
Adm. Barrie—I would
be pretty confident in saying that the communications would have been verbal.
They would have been issues that we had discussed. We see each other pretty
frequently, and almost every day when we are in the headquarters.
you able to help us about how well apprised the secretary was about these
matters in the broad?
Adm. Barrie—Again, I
would say that he would be well apprised. But you would have to ask him; I can
only give my impression.
but, Admiral, you would be aware of briefing material going to Dr Hawke from
formal briefing material if there were some.
that taking place?
Adm. Barrie—Not to my
certain knowledge. Again, you would have to ask Dr Hawke..... I am not aware of
all the briefing material Dr Hawke gets from the ADF. I am also very conscious
that Dr Hawke attends the Strategic Command Group, so he gets involved in a
whole range of committee work and other things. As I said earlier, I would be
very surprised if he was not in the picture.
Committee considers that the boundaries around the ‘operational’ or ‘chain of
command’ domain are not necessarily as clear, nor should they be as
unbreachable, as Dr Hawke might claim. Given the joint responsibilities of the
diarchy for Defence overall, and the involvement of both the military and
civilian arms of Defence (navy and public affairs respectively) in the
government’s handling of people smuggling, the Committee doubts the utility of
a strict approach to ‘operational’ boundaries – particularly where the
‘operations’ are not conventional military ones. The Committee considers that a
strict separation of the operational from the bureaucratic domain in these
kinds of ventures is arguably not only unrealistic but counterproductive.
well in this instance, the CDF was overseas for significant periods, with
various Acting CDFs serving in his place. Important military operations were
already in train in several locations, and further serious deployments were
being planned. These required the full attention of the CDF. By comparison, the
navy’s role in intercepting SIEVs was a non-military, border protection
exercise essentially under civilian control.
CDF made much of these factors in his evidence before the Committee, declaring
the Australian Defence Force, in October 2001, to be ‘committed as never before’,
and that this context was ‘highly pertinent to [the ADF’s] present priorities
In addition, we were
supporting, as required, the government’s border protection policy. I emphasise
‘supporting’. Defence was not and is not
running the government’s border protection policy. That is a function of other
government departments. Defence’s role was as an agency directed to support a
policy being formulated and implemented by other agencies, such as the
departments of Prime Minister and Cabinet, Immigration, Foreign Affairs and
these circumstances, the Committee considers that the civilian half of the
diarchy could properly assume a legitimate interest in undertaking a role more
deliberately and visibly linked to ‘operational matters’ involving border
protection. The diarchy leaders, when both were in town, typically had ‘daily
discussions’.Opportunities for the
exchange of information, views and proposals would therefore have been
regular contact should have virtually eliminated any risk of one half of the
diarchy cutting across the other in a manner that was adverse to their
responsibilities. At the same time, it should have provided ample opportunity
for the Secretary to draw anything problematic to the CDF’s attention, and vice
short, the realities of the diarchy’s personal interactions, their professional
joint responsibilities and the requirements of a whole-of-government approach
to border protection matters seem to fly in the face of a purist view of the
operational / bureaucratic distinction.
The Committee has referred
elsewhere to the views of Ms Halton and Professor Weller about what they
believed would be appropriate action by a departmental secretary where a
whole-of-government operation was in train. The implication of those views is
that the diarchy, when applied in the manner promoted by the Defence
leadership, is against the spirit of the accountability requirements for such
Again, in the context of the
broad responsibilities of departmental heads, the Committee notes the following
advice from the Public Service Commissioner, Mr Podger, in re-issuing his
predecessor’s guidance to secretaries about their performance assessment. That
advice nominates five areas to focus on.
[These are] whole-of-government support, ministerial support,
management, leadership and the promotion of the APS values.
The Committee is struck by the
significance of the fact that whole-of-government support heads the list. Such
a requirement has also been emphasised by the Auditor-General in his
consideration of the auditing and accountability responsibilities around what
is commonly termed ‘joined-up government.’
The Auditor-General cited a
Canadian-UK report which offered the following comment on the corporate role of
Permanent Secretaries have an individual and a collective
responsibility. An individual responsibility to serve their respective
ministers, to oversee the performance and ongoing improvement of their
department. They also have a collective responsibility to serve the government
as a whole by supporting and moving forward the government agenda. They have a
collective responsibility ... to ensure that [the public service] is up to
The Committee accepts that Dr Hawke
held genuinely to his belief, based on the Ministerial Directive and his purist
view of the diarchy, about not trespassing on what he regarded as the
operational and advisory territory of the CDF. But it remains the case that Dr
Hawke possessed knowledge in October 2001 about the misrepresentation of
photographs, and in November about the absence of corroborative evidence in
Defence intelligence material and reports concerning claims of children being
thrown overboard. That several Defence officials knew these things, but for
some reason failed, or were ignored, in their attempts to convey such advice to
the minister is, in the Committee’s view, alarming.
Hawke has elsewhere observed: ‘We’re paid to call it as it is – not to provide
tailored or filtered advice.’ In
the case of the misrepresented photographs, explicit corrective advice was
passed to the Minister’s office by senior Defence officials. That this was to
no avail in terms of the minister amending the public record is completely
making the above points, the Committee does not assign to Dr Hawke the sole
responsibility for ensuring Defence’s accountability in general nor in the
particular case of the ‘children overboard’ controversy. Several witnesses
discussed the role and responsibilities of the CDF, Admiral Barrie, and his
handling of the ‘children overboard’ controversy. The Committee has explored in
the previous Chapter the CDF’s acts and omissions, and the impact of these on
The diarchy should be
an enabling mechanism – and in a
conventional military/operational context it no doubt enables clarity of advice
to the minister. However, the Committee is of the view that, whatever its
strengths in other circumstances, the diarchy proved inimical to the effective
handling of the ‘children overboard’ controversy, and more broadly to Defence’s
involvement in the whole-of-government approach to border protection.
There may, perhaps, have been a
robust exchange of views between the Secretary and CDF about the errors and
doubts that, within days of the event, were seriously bothering their
colleagues in both the operational and bureaucratic domains. Unfortunately, the
diarchy privileged the CDF’s position as adviser to the minister about
Operation Relex matters and Dr Hawke used the diarchy to justify his decision
not to provide separate advice. Thus the diarchy contributed to the failure by
the Defence minister to correct the public record.
The diarchy is not an end in
itself. It is meant to facilitate accuracy, timeliness and accountability. It
is certainly not meant to be an impediment to full and frank advice going to
the minister. Departmental secretaries have a particularly important part to
play in serving the government as a whole, and especially in ensuring that they
convey to their ministers advice on issues that may have a political dimension.
The diarchy inhibited Dr Hawke from discharging those responsibilities.
It must be stated clearly here,
however, that the Committee’s concerns about the diarchy are of relatively
small moment compared to its grave concerns about the role of the minister’s
office in this whole affair. As has been made clear in Chapter 5, it is
incontrovertible that sufficient advice was passed from the ADO to ministerial
staff providing ample justification for a correction, by the minister, of the
the Committee, there are least two key lessons to be learned from the
consequences of how officials, agencies and ministerial staff interacted during
this affair. One is that the role of ministerial staff in shaping the
relationship between a department and a minister’s office has a crucial impact
on the robustness and transparency of the accountability that prevails. The
second is that a whole-of-government approach to issues requires a substantial
rethinking of concepts of accountability and how senior public servants might
exercise their accountability function horizontally
(across policy and operational alliances) as well as vertically through their
own organisation to their minister.
questions and tensions surrounding the horizontal and vertical responsibilities
and accountabilities within the Defence diarchy are but a local version of
broader accountability questions where multiple lines of authority,
responsibility and agency are involved. For the Committee, such questions go to
the heart of sound administrative practice.
in a Whole-of-Government Environment
The challenges to traditional
standards and received notions of line authority posed within a modern public
service are well expressed in the words of the University of Melbourne’s
Professor Mark Considine:
We expect public actors to account to the legislature, the
courts and the citizenry and to other agencies with whom they coproduce public
goods. Multidimensionality therefore begets complexity. ...
In the new world of enterprising government, the public official
is expected to both honour his or her official mandate and to move freely
outside the hierarchical constraints ... in search of collaborative relationships
This multidimensional agency power suggests that accountability
cannot be defined primarily either as the following of rules or as honest
communication with one’s superiors. Rather, it now involves what might be
thought of as the appropriate exercise of a navigational competence: that is,
the proper use of authority to range freely across a multirelationship terrain
in search of the most advantageous path to success.
In the (increasingly frequent)
whole-of-government approaches involving discrete agencies working
collaboratively towards the same policy outcome, notions of ‘navigational
competence’ and ‘the proper use of authority across a multirelationship
terrain’ seem particularly apt. Professor Considine also proposes that instead
of thinking about a ‘line of accountability’, one should think in terms of a
‘culture of responsibility’.
It is worthwhile examining the
implementation of the whole-of-government approach to people smuggling in the
light of all these notions. The saga of ‘children overboard’ reveals quite
starkly some of the vulnerabilities to which whole-of-government approaches are
It is important to attend to
these, because whole-of-government approaches are increasingly valuable strategies.
As their value and frequency increases, more intense becomes the imperative
that they be conducted in a robust and coherent way. The participating agencies
must be effective collaborators without putting at risk their discrete
responsibilities. This inevitably means adjustments to ‘business as usual’, and
such adjustments must be understood, accommodated, and communicated within each
The approach on this occasion
was via an interdepartmental committee, the People Smuggling Taskforce (PST),
chaired by a senior executive of PM&C. The preferred modus operandi of an IDC can be broadly expressed in the following
Are usually established to assist in the
coordinated handling of major issues where the interests of a number of
ministers and the agencies for which they are responsible are critically
They do not have executive or
They typically provide reports
containing advice and recommendations to ministers and other decision-making
authorities, including to Cabinet.
While the work of IDCs may
affect the policy advising roles of agencies to their ministers it does not
displace it. Therefore, when an IDC report is provided to ministers, the
representatives of agencies on the IDC should advise their ministers separately
of their views on the report.
The Committee has assessed the
functioning of the People Smuggling Taskforce (PST) against the preferred model
outlined above. The evidence in this regard is somewhat contradictory.
Importantly, several aspects of the PST’s operations were not conducive to best
and operations of the People Smuggling Taskforce IDC
The establishment of the PST in
August 2001 seems to have been at the suggestion of Mr Bill Farmer (Secretary,
DIMIA) conveyed to Mr Max Moore-Wilton (Secretary, PM&C)
That was partly in response
to the Tampa range of issues—because
that was developing, as you know, very quickly—but partly also because we had
had a range of boats coming into Australia and we thought that you really
needed a more concerted focus on what was happening and on government
I certainly thought that in
DIMIA, in order to bring together the whole-of-government effort, you needed a
mechanism which would do that on an ongoing basis rather than on an ad hoc
basis—that is, on the basis of working level contacts and then occasionally
phone calls and so on at senior level. 
had been earlier, more ad hoc committees, but for the PST:
there were really two changes: firstly, the level of
representation, at least from some organisations, and the range of
representation; and, secondly, the fact that the committee met in a more
intense and regular way.
Secretary of DIMIA (Mr Farmer) was a key player in the People Smuggling Taskforce.
He regarded PM&C as the lead agency in the matter, and confirmed to the Committee that
the PST operated without any specific terms of reference. He explained:
We had a job to do, which was to bring together all the
government agencies involved to respond to this phenomenon of illegal boat
arrivals...[T]he first time I remember meeting with this group was in relation to
Taskforce was chaired by a senior PM&C executive, Ms Jane Halton. Ms Halton
introduced her account of the PST’s purpose and operations in the following
The PST was set up and run on the basis that it provided advice
on policy and operational issues as they arose. One of the group’s key jobs was
information exchange to ensure that all agencies were kept aware of relevant
and emerging facts. It is important to understand that the role of the PST was
not to insert itself into the chain of command within departments or the
My habit as chair was to start every meeting with a roundtable
update from every agency. I always asked those attending to update the group,
to raise any issues that they wish discussed or considered and to ensure that
all members were fully informed. The need to ensure we were kept fully informed
was reinforced on many occasions. At all times the PST operated in a thorough
and professional manner consistent with Australian Public Service practice and
APS values. Where issues or concerns emerged, these were followed up and advice
provided. With hindsight, it is clear that some information which was available
elsewhere was not passed to the PST.
to Ms Halton, the Taskforce reported to the PM&C Secretary (Mr
Moore-Wilton) and to the Prime Minister’s Office. While the Taskforce brought
together ‘the collected advice’ of the participating agencies about an issue,
and the Taskforce might ‘come to a view about that particular issue’, Ms Halton
stated that this ‘did not in any way fetter any members of that group from
individually advising their minister as to their individual view.’
Halton consistently denied that the PST actually took decisions, stating that
struggling to come up with an example of where the IDC took a
decision. It had no power to take decisions. Decisions were taken by ministers
or where individual departments had delegated authority in respect of those
It discussed issues as they arose and it discussed the handling
of those. It provided an opportunity ... for information exchange so all of the
agencies that were working on this issue had the opportunity to hear from all
of the others precisely what issues were currently emerging. So, ...it was
important, for example, for Customs officers, for the Federal Police and for
Immigration officers to all understand exactly what was intended in particular respects
so that their officers on the ground could be similarly briefed and be working
from the same basis. As you know, it is the classic conundrum of
whole-of-government exercises that individual departments do not always get the
information that other departments have, and this was a mechanism to ensure
that those departments were all privy to the same information...
As you know, the group
prepared briefing papers and option papers in particular areas, so you are
already aware that there was one provided on the evening of 7 October. ... What
the paper did...was reflect the views of all of the agencies in respect of a
series of issues. In some cases it reflected an accord about issues and in some
cases it reflected a difference of view, which again you would expect—agencies
come from different perspectives. It was important that in this particular case
the Prime Minister understand that the agencies sometimes had a slightly
different perspective on those issues. 
Ms Halton was categorical in her claims that the PST did not take decisions,
nor insert itself into other agencies’ chain of command, certain witnesses
indicated to the Committee that they had the distinct impression that the PST
not only laid out the broad operational framework and rules of engagement, but
had a key role in directing the course of events, and indeed made decisions
which then simply had to be implemented by the relevant agency.
On the last point, for example, according to a
senior DIMIA official (Deputy Secretary Ed Killesteyn) it was the PST that
decided that, in the case of SIEV 4, the people on board should be given a
prepared script which would give them certain details about how they were to be
transported to ‘another place’ and processed by Australian officials, but which
would not disclose full details of where they were going. The script – one of a
series that had been developed - was unique in this respect. According to Ms Halton’s, the PST
‘saw’ and ‘discussed’ such a series of scripts, but the PST ‘did not make a
particular decision that [asylum seekers] would be misled.’
is not clear from this evidence whether the PST instigated the modified script
for SIEV 4 and directed that it be implemented, or simply endorsed a settled
DIMIA decision about how SIEV 4’s occupants should be handled. A file note
dated 10 October prepared by Deputy CEO, Customs (Mr John Drury), who was
present at that meeting, listed what he noted as ‘issues [that] emerged today’
at the PST. It is worth quoting at some length for the insights it gives into
how the PST went about its business.
began the meeting by distributing a press release in the name of the Prime
Minister announcing arrangements to transfer SUNCs now held on HMAS Adelaide,
- The plan is
to disembark from Adelaide tonight and to locate the 223 persons in the
Christmas Island sports hall.
- Those on
board are not to be told that their destination is PNG at this stage.
This is to avoid reaction among the group who may then display resistance to
being airlifted onwards to PNG.
- ... [ITEM
- ... [ITEM
Reith wants Christmas Island relieved of the latest SUNCs by Friday. PM&C
and DIMIA say this is impossible until the new PNG facilities are brought up to
standard which may take two weeks.
- Manus Island [Please protect] is one of the
locations in PNG which is being considered.
- Bill Farmer
stressed the need for a common Q&A document for AFP, Customs, ACM, and
other Government officials on Christmas Island so that there is no mixed
messages given to either media or the local representatives on Christmas Island
about the handling of, or the intentions towards the latest SUNCs.
agreed with Mr Farmer and requested that DIMA action.
remains unclear to the Committee how ‘decisions’ and ‘advice’ were distinguished
within the PST. The Committee notes that some Defence personnel clearly
believed that the PST was calling the shots, and that it was PST decisions that
determined how they were to respond as each situation unfolded. Brigadier
Silverstone referred to the ‘micro-management’ from Canberra, which he
attributed to ‘a very fluid policy environment’involving ‘a very high degree of
Admiral Smith told the Committee that he operated under the impression that
government directives came from the PST. For example, in describing Operation
Relex he stated:
...once the vessels were
intercepted in the early stages of Operation Relex, every decision that was
taken in terms of what to do with [a] particular vessel and the people in it
was in fact directed from Canberra... out of the interdepartmental committee
process, and therefore, from our perspective it was a government directive....
[As] these incidents unfolded that particular committee, as I understand it,
met regularly and decisions were taken ... as to the next step in the particular
operation, whatever the SIEV happened to be.
This apparent confusion about the PST’s role
within the Defence chain of command and elsewhere is puzzling. Were these
Defence officials inadequately briefed on the relationship between Operation
Relex and the PST, or did Defence as a whole have similar views? Or were there some inadequacies in the PST, either in
the way its membership was structured or in the communication protocols that
existed between the PST and its contributing agencies ?
the Committee sought from DIMIA Secretary Bill Farmer an insider’s view of the
operations of the PST, Mr Farmer began by describing how PST decisions were
made and progressed:
In terms of the decision making [in the PST] ... members of the
high-level group were not always involved in the preparation of briefing or
advice that went to the Prime Minister from the Department of the Prime
Minister and Cabinet. It is quite normal for that sort of advice to be, in
effect, jealously guarded by PM&C. In terms of advice to the Prime
Minister, we were not involved in... the preparation of every bit of paper. We
were on some occasions involved in looking at draft bits of paper prepared by
PM&C and offering our comments on those. After those discussions, PM&C
would finalise them and send them to the Prime Minister. We were never a party
to the broader distribution of those pieces of paper by the Department of the
Prime Minister and Cabinet. I think in one case ... one of the reports went to
Minister Reith. That may have happened on other occasions, but we were not the
master of that information. There was one form of product from the IDC prepared
by Prime Minister and Cabinet for the information of, or decision making by,
the Prime Minister and possibly other ministers.
Halton described the preparation of advice going from the PST to the Prime
Minister in somewhat different terms:
The essence of this whole
operation was to have agreement amongst the agencies about the text and the advice.
I think we have canvassed previously that ... where there was combined advice
required on something, that was always discussed and the material was always
Committee has been unable to satisfactorily reconcile the discrepancies between
these views of how the PST actually operated. Perhaps the difference lies in
what Ms Halton is referring to when she says that ‘the material was always
agreed’. By ‘material’ does Ms Halton mean the document that was actually
signed off by her following the PST’s session, or does ‘material’ refer to the
content of the discussion that went on in the PST meeting proper? If the
former, there is a clear discrepancy between her account and Mr Farmer’s; if
the latter their accounts are more easily reconciled.
Committee notes that in the specific case of the options paper prepared on 7
October, Ms Halton consistently told the Committee that the PST worked through
an iterative editing process – ‘line by line’ – with everyone present involved,
and that the document ‘ultimately came back for one last read’. As noted earlier, Ms Halton’s
account is at variance with that of AVM Titheridge.
the line by line editing and final read-through process as described by Ms
Halton did in fact occur on this occasion – an account which is corroborated by
Ms Edwards in her written answers to Questions on Notice - it stands in
contrast to how the advices from the PST were generally finalised – at least so
far as Mr Farmer’s account is concerned. Mr Farmer’s account conveys a process
whereby essentially the PST representatives contributed their perspectives,
issues were discussed, and then Ms Halton and her PM&C associates assembled
the final advice going to the Prime Minister, without further reference back to
Halton also told the Committee that:
There was no point at which
that final [October 7 options paper] document – and, indeed, any final document
that we put through – was disputed.
Committee received no evidence that would contradict Ms Halton on this point in
relation to the October 7 paper. Whether her claim would validly apply to ‘any
final document that we put through’ is another question. It seems that the PST
as a group rarely had before it a ‘final document’ to consider, and so it is
self-evidently the case that no final document was ever disputed. It was not
there to be disputed.
any event, copies of advices flowing from the PST were not subsequently
provided to participating agencies for their information or review. The
Committee regards this a serious flaw in the PST’s procedures. Ms Halton told
[N]obody was given a copy of
the document to take away – that was standard practice. These materials were
considered sensitive, and agencies were not given copies of the document.
strikes the Committee as particularly odd. The document was assembled from the
combined inputs of the participating agencies. Any sensitive material would
have emanated from the agencies themselves, and presumably their
representatives were appropriately cleared to deal with such sensitivities. Why
they were not then entitled to or trusted with the final advice, which they
supposedly jointly ‘owned’, is a mystery. Such a refusal also impeded
representatives from reporting back as fully as they might to their own
agencies. The PST was meant to have been a whole-of-government operation, and
yet it seems the agencies involved were deliberately deprived of the final
whole-of-government view of the PST.
rings true with Mr Farmer’s comment that PM&C ‘jealously guarded’ the
formulation of the final advice from the PST to the Prime Minister. If
whole-of-government processes are to be more frequently used, there will need
to be something of a cultural change within PM&C towards a more inclusive
ethos. Agencies working on whole-of-government projects are likely to become
quickly disenchanted if the lead agency appears patronising, or conveys a lack
of confidence in the discretion of the participants, or does not provide
adequate feedback on outcomes.
The Committee also sought a
description from Mr Farmer as to how the participating agencies carried out
their own roles and how ministers’ decisions were fed back into the PST.
[The] high-level group
would also receive back advice from PM&C about decisions that had been
taken on a range of issues. ... The high-level group shared information as well
as, in a sense, trying to give some strategic direction on the way that the
whole particular bits of the strategy were being implemented.
far as documentation of PST discussions was concerned, Ms Halton stated that,
apart from her own handwritten notes in her ‘running day book’, the PST
operated with a note-taker, the notes being converted into minutes, but that
the minutes did not go back to the PST at subsequent meetings.
If what you are asking is, ‘Were the minutes reflected back at
the next meeting?’ the answer is no. If what you are asking is, ‘Was there a
record of key issues raised and/or decisions taken?’—‘decisions’ is probably
the wrong way to describe this forum, to be quite frank. ... ‘Outcomes’ would be
a better description. Sometimes there was a product of the meeting ... and often
the outcome of the meeting would be a thing: a paper or whatever... [T]o be quite
frank, we were running so fast and, as you know, there were a series of issues
being dealt with and the issues that came out of particular Taskforce meetings
were often then themselves considered in the next meeting. It was the nature of
the iterative process of the work. So, no, those minutes were not subsequently
referred to me.
the PST’s strong reliance on oral advice from those in attendance, and the
minimal documentation attached to its operations, Mr Farmer was asked by the
Committee whether he had any concerns about the lack of a paper trail.
For me, no. I am concerned with effectiveness and with outcomes.
That means that I am concerned about paper trails where there is a quite
appropriate requirement for a paper trail, in an audit or other sense, but
successive governments have made it clear that they want a public service that
is able to be flexible and get the job done. That, for me, does not mean
producing huge mounds of paper; it means looking at what is the most
appropriate and effective way of getting something done.
Committee fully accepts that at times the PST was dealing with very fluid,
sometimes volatile, situations, and would not expect the PST to produce ‘huge
mounds of paper’ to explain or justify its actions on those occasions.
Nevertheless, the Committee considers that some basic administrative and
procedural elements were missing from the PST’s operations. For example, it
would have been at least prudent – and probably highly desirable – that
PM&C circulated back to the participating agencies copies of the advice
that PM&C compiled and forwarded to the government on the basis of
deliberations at a PST meeting.
Committee is not arguing here for red tape, but for a respectable reporting
back of PST outcomes to those who contributed to their development. This would
have enabled participating departments to routinely check what had gone to
government as the PST’s considered position, and thereby would have greatly
increased the chances that any error, misleading statement or insufficiently
caveated advice would have been picked up by the agency concerned and fed back
into the PST.
into the PST flowed largely from agency sources via their representatives at
the PST meetings. However, the management of that information seems to have
lacked the degree of orderliness necessary to ensure thorough consideration and
careful assessment of the multiple inputs.
regard to these communication flows, DIMIA official Ms Philippa Godwin is
recorded in the Bryant Report to have expressed serious concerns.
Ms Godwin...recalled that
information flows had become erratic and disjointed... It had therefore been very
difficult to check which information was the most up to date, or to check the
accuracy of information.
Ms Godwin commented that it
was clear that some people were getting information ahead of and outside normal
channels of communication. ...
Ms Godwin perceived that
there was a need to rebuild proper lines of communication. This goes back to
the Prime Minister’s Coastal Surveillance Taskforce, where a lot of work was
put into establishing timely and effective information flows through an
established network of contact officers.
also seem to have been considerable differences between agencies’
representatives in the way they reported back to their home departments or
ministers. These ranged from limited oral reports to typed up file notes. The
nature of the ‘handovers’ between different representatives from the one agency
who attended various meetings also seem to have been quite variable.
PST comprised high level officials who were presumably well placed both to
advise the PST and ensure close liaison with their home departments and
ministers. The Committee considers that this resulted in a ready acceptance of
the veracity of information circulating in the PST which was to prove not fully
justified, and for which insufficient feedback and quality control mechanisms
had been put in place.
the matter of the ready acceptance by the PST of the report that children had
been thrown overboard from SIEV 4, Mr Farmer explained that the group always
worked on the assumption that contributions from PST members were
I have already said that that was a high-level group meeting,
that anyone in that meeting who was told anything by me about an immigration
matter had the right to assume that that was authoritative advice from the
Department of Immigration and Multicultural Affairs. Similarly, I and other
DIMA officers had a corresponding expectation that anything said to us by
representatives in the high-level group was an authoritative statement from
their organisation. If there were caveats about material, then we had a
responsibility to reflect those caveats. If there were not—I have already said
to you in relation to this particular matter that there were not—then we had
the right to take the information given to us by, in this case, Defence.
...[I]f a representative in a high-level group passes on
information without caveats, then the other representatives in the high-level
group have an expectation that that information is well founded. You do not go
into a high-level group and say, ‘Well, the Attorney-General’s Department says
this about the law, but how do we know this? Perhaps the Attorney-General’s
Department had better check it,’ and then go through every bit of advice and
send people away. You had senior officials there who were supposed to be
participating in a high-level group and I think talking authoritatively...
With respect to the original report to the PST
of ‘children overboard’ Mr Farmer observed:
I have certainly come to
the awareness that the process that led to that information coming into the
high-level group was flawed and that, of course, has been at the centre of much
of the discussion in this committee and in other places. I think that is the lesson
that others are drawing—that before that sort of statement is made in that sort
of meeting, then things should be properly corroborated.
input of flawed information on the morning of 7 October cannot result in the
PST’s being blamed for including ‘children thrown overboard’ in the advice that
was sent to the Prime Minister that evening. It was the rapid verbal
transmission of the flawed information out of the PST to the Minister for
Immigration that resulted in its quick entry into the public arena, thereby
triggering the controversy. The Committee notes that the communication with the
Minister was not initiated from within the PST. It occurred because of a chance
phone call from the Minister seeking an update from the Secretary of DIMA while
the PST meeting was in progress.
is unfortunate that the ‘children overboard’ report had barely been presented
before it was passed outside the key group responsible for providing accurate,
timely and considered advice to the government. The source of the report, AVM
Alan Titheridge, who conveyed it by phone to the PST chair (Ms Halton) was not
present to contextualise the information, or to caveat it with appropriate
reference to its status, or to explain how it emerged as a result of a special
arrangement which had extracted the information out of the normal chain of
Select Committee contends that the political import of the ‘children overboard’
advice would not have been lost on the senior figures who comprised the PST.
This was potentially headline-making information, and PST members would have
been under no illusion about the level of public interest it would arouse.
PST Chair, Ms Halton, had a different view:
I do not think that anyone
in that meeting anticipated what was going to happen with that information.
This might sound surprising to your very political ears, but I genuinely do not
believe that anybody in that room thought it was a particular political issue.
I think that people thought that it was regrettable, but I do not believe that
it was thought of as being a political issue.
Committee considers it surprising that such a view should be proffered by a
very senior PM&C officer. Officials at this level are required to be, and
indeed often pride themselves on being, very attuned to the political dimension
of matters they are dealing with. The proof of the political significance of
the issue was dramatically apparent shortly after the information had been
passed outside the PST to Minister Ruddock, and reinforced by utterances of
other ministers during that day. It seems unlikely that the seasoned
professionals attending the PST on 7 October were uniformly ignorant of the
political significance of a report of children being thrown overboard.
that the government was on an election footing, and that the issue of asylum
seekers was politically very prominent, there was every good reason for the PST
and its members to be particularly scrupulous about its handling of such
is understandable that officials were anxious to keep ministers as up to date
as possible about unfolding events. But there is also a strong requirement on
senior public servants to be judicious in that upwards reporting.
DIMIA official present at the PST meeting - which she characterised as ‘shambolic’
with ‘mobile phones ringing constantly’
- was concerned about erratic information flows and the lack of its systematic
handling. She added:
Ministers had also
inadvertently contributed to the problems themselves. Understandably they
wanted to get information as it happened and were reluctant to wait for
confirmation. However, this had meant that as soon as anyone got information,
they felt pressured to pass it on. Because things were moving very quickly,
through mobiles, there was a lack of precision in language used and a ‘Chinese
Committee is not surprised by, and understands, the intense dynamics that were
manifest at the PST meeting of October 7. What the Committee finds unacceptable
is that the structural and procedural framework of the PST was not sufficiently
robust to deal with the demanding, highly fluid, and frequently dramatic nature
of the task for which it was responsible. Such weaknesses become even more
significant in the context of the PST operating during a period when caretaker
conventions are meant to apply.
Little, if any, thought seems to have gone
into establishing basic processes for keeping the PST and the participating
agencies systematically in touch with the activities and outcomes of the group.
No minutes, not even the notes, were circulated. No copies were sent back to
departments of the advices that went from the PST, courtesy of PM&C, to
government. No guidelines existed as to how PST members should report back to
their departments, nor how different representatives from the same agency
attending different meetings should brief each other by way of handover.
Committee has examined the attendance records of the PST. No fewer than one
hundred and two different names appeared as having attended the PST at various
times between August and December 2001. Some attended only once or twice,
others perhaps half a dozen times, with up to twenty appearing more or less
regularly. It is difficult to imagine how such an array of participants, unless
scrupulously managed, could be conducive to the effectiveness, let alone the
accountability, of the PST. It is also difficult to imagine how these
participants could be coordinated in such a way as to ensure coherent input
from the various organisations they represented.
proper accountability of this PST was, in the Committee’s view, not simply a
line of accountability to the Prime Minister, for example. It should have
embraced the departments who both informed the PST and had to implement the
decisions which arose from its advice. It required the kind of accountability
better expressed by the phrase a ‘culture of responsibility’.
The Auditor-General has made
some particularly pertinent remarks in the context of an ANAO report on the
management of unauthorised arrivals.
In situations where there is joint responsibility for overseeing
and implementing programs across a number of agencies, a clear governance
framework, which clearly defines accountability and reporting arrangements,
roles and responsibilities of the various participants, is necessary.
Increasingly, relevant governance arrangements need to cross organisational
boundaries to better align activities and reduce barriers to effective
cooperation and coordination. This is the case in relation to the prevention of
unauthorised arrivals, given the various agencies involved, all of which have
been required to operate in the context of a rapidly changing and, at times,
Committee finds that the People Smuggling Taskforce did not operate with ‘a
clear governance framework which clearly defines accountability and reporting
arrangements’. Observations about PM&C’s ‘jealous guarding’ of advice, the
PST’s ‘erratic and disjointed communication flows’, and agency participants being
‘not masters of that information’ suggest that the PST fell far short of what
the Auditor-General would rate as a satisfactory mechanism for conducting a
making these criticisms, the Committee is assessing the PST from the perspective
of best practice, not urging a counsel of perfection. The Committee is not
questioning the integrity of the individual participants on the PST, but
commenting on weaknesses in its operation, particularly in its control
‘control’ the Committee does not imply rigidity and hierarchy, but a notion
that embraces the identification and treatment of risks in order to promote the
efficient, effective and ethical achievement of objectives. Control is a
process, a means to an end, not an end in itself. It is everyone’s
responsibility; it is effected by people at all levels within the group; it
encourages a focus on the big picture; and it provides reasonable, not
absolute, assurance that outcomes will be achieved. 
‘best practice’ control structure comprises five core, inter-related
environment – sometimes called the ‘tone at the top’.
assessment – identify, analyse, assess, prioritise and treat risks.
activities – risk mitigation, detection and correction of errors.
and communication – timely and accurate information; communication flows up,
down and across; regular internal and external reporting.
and review – self-assessment; identify breakdowns, duplication and gaps.
Committee cannot make a detailed assessment of the PST against all of these
components. However, the Committee encourages Inter-Departmental Committees
(IDCs) to devote some attention to establishing reasonable and relevant control
structures before making haste in the execution of their important and
also lies with the individual representatives involved in IDCs to report back
in at least a minimally adequate way to their own departments. In the case of
the People Smuggling Taskforce, the Committee had little material upon which to
make an assessment. But there appears to have been considerable variation in
the reporting back practices, ranging from the written and detailed to the
summary, the Committee regards the PST as having embarked upon its demanding
task without establishing at the outset a set of procedural and administrative
structures and protocols suitable for the undertaking. Basic record-keeping,
monitoring and risk management procedures were effectively non-existent.
Information channels were not systematically organised so as to provide the
necessary checks and balances for a whole-of-government operation.
response to the experiences associated with its involvement on the People
Smuggling Taskforce, the Department of Defence has produced guidelines for the
future participation of Defence personnel in whole-of-government groups. The
Committee commends the Department on its initiative. Some of the key guidelines
- The lead IDC
agency to circulate records of meetings, and provide copies of all advice(s) to
Ministers, to all IDC members.
- Copies of
IDC records to be provided by the IDC representative to other relevant staff
- Where an IDC
does not provide records of meetings, Defence representatives to prepare key
point summaries for distribution.
- Defence IDC
representatives to keep Minister, Parliamentary Secretary, CDF and Secretary
informed about major IDC events and milestones.
- If related
actions are taken outside formal IDC meetings, other IDC members to be
informed, and a report made to the next IDC meeting.
- In relation
to important communications, including phone calls, brief notes for file to be
- IDC reports
should be cleared by all IDC members before submission to ministers.
- If a report
raises significant issues or disagreements between agencies they should be
brought to the attention of senior officials.
Accountability and Ministerial
The Committee’s inquiry has
highlighted a serious accountability vacuum at the level of ministers’ offices.
It appears to be a function partly of the increased size of ministers’ staff,
but more significantly of the evolution of the role of advisers to a point
where they enjoy a level of autonomous executive authority separable from that
to which they have been customarily entitled as the immediate agents of the
While ministers and public
servants regularly account for their actions directly to parliament and by
appearance before its committees, this is not the case for ministerial
advisers. In the past, it has been generally accepted that advisers’
accountabilities are rendered via ministers, it being understood that advisers
act at the direction of ministers and/or with their knowledge and consent. This
seems to be no longer a legitimate assumption.
The situation is that there now
exists a group of people on the public payroll – ministerial advisers – who
seem willing and able, on their own initiative, to intervene in public
administration, and to take decisions affecting the performance of agencies,
without there being a corresponding requirement that they publicly account for
those interventions, decisions and actions. It is to an exploration of this
phenomenon that the Committee now turns.
The changing role and status of
An excellent account of changes
in the roles of ministerial staff over the past three decades, and of the
debate about advisers’ accountability, has been produced by Dr Ian Holland of
the Parliamentary Research Service. The Committee has drawn extensively on Dr
Holland’s work in the following discussion.
The growth in numbers of
Ministers typically have three
sorts of staff working for them:
Personal staff – policy,
special and media advisers - who support and assist them in performing their
ministerial, parliamentary and party duties. They add a political dimension to
the advice available to ministers and often act as spokespersons. They are
employed under Part III of the Members of
Parliament (Staff) Act 1984 (MoPS Act).
Departmental Liaison Officers
(DLOs), seconded from ministers’ departments, who facilitate liaison between
the minister’s office and portfolio agencies. They remain departmental
employees under the Australian Public
Service Act 1999.
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.
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. 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.
The number of staff working in
ministers’ offices has at least doubled in thirty years. Close examination of
that growth reveals it primarily to be the consequence of decisions about the
machinery of government, and attempts to make government more ‘professional’,
rather than the desire of governments to secure partisan advantage or gain
further dominance over parliament. For the Committee, the key issue is
accountability, and the extent to which the numbers of ministerial staff might
impede accountability is one, but certainly not the most important, consideration.
The rise in influence of
Government ministers have
traditionally had access to advice and support from the departments that they
administer and in particular from the departmental secretary. However, in
recent decades ministers have increasingly sought advice from other sources. In so doing, they have tended to
recruit onto their personal staff a hand-picked group, most of whom share the
minister’s political outlook and have strong commitments to ensuring that their
minister is effective in both the party room and the parliament. This is
particularly the case with ministerial advisers.
Ministerial advisers are
appointed under the Members of Parliament
Staff Act, (MoPS Act) Under this
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.
The main guidance given to
ministerial staff lies in the Prime Minister’s Guide on Key Elements of Ministerial Responsibility. Section nine
of the Guide concerns ‘ministerial
staff conduct’. Most of its content pertains to conflict of interest issues.
The Guide indicates for example that
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...
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... may arise
[that] gifts, sponsored travel or hospitality should not be
accepted if acceptance could give rise to a conflict of interests...
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.
The Committee is also concerned
by the lack of congruence between the Prime Minister’s Guide on Key Elements of Ministerial Responsibility and what is
contained in the Members of Parliament
Staff Act. As one witness expressed it:
[There] is the need to evolve institutional arrangements that
are appropriate to the contemporary reality of government. The Public Service
has evolved and has had its arrangements changed to accommodate new realities
and new directions. The Members of
Parliament Staff Act was passed in 1984 in a particular set of
circumstances. It no longer provides an appropriate institutional framework for
how the system is working.
Ministerial advisers have
become important participants in the policy process, playing a range of policy
roles. As their numbers and
perceived influence have grown, so their role has become more controversial.
Few commentators or senior officials reflecting on the public service over the
last decade or so would fail to mention the major changes that have been
wrought in pursuit of flexibility and responsiveness. One of these major
changes has been in the relationship between departmental secretaries and their
ministers, and ministerial advisers.
The pressure on ministers to respond to anything and everything
immediately has increased dramatically over the last 25 years or so...It is only
natural that ministers require additional resources to help manage all this
pressure, and that the resources required are both political and professional.
The interface between the politicians and their political advisers, and the
Public Service, is accordingly more complex and more fluid.
Many departmental secretaries
find that advisers ‘act as a conduit between the secretary and the Minister,
often injecting policy advice along the way’.
Opinions vary as to the benefits of such a situation.
If you want to say it’s a contest it’s increasingly an unequal
contest, but we’ve just got to make it work... it is a very sensitive issue
obviously and very easily abused.
You bite your tongue a lot to make sure you have reasonable
relations with the senior adviser.
Not all departmental heads have
misgivings about ministerial advisers.
I’ve always taken the view that there is a real role for
ministerial advisers that the public service can’t provide, and in many ways
it’s better not to have somebody from the department there who’s a senior
adviser...[Advisers have] got a big role that in many respects the public service
can’t play ... there’s a lot of negotiating to be done...with the Senate...with
outside bodies and so forth. So I think there’s a definite role for ministerial
advisers, which in many ways ensures that the public service isn’t politicised,
because you can get the political stuff done by the ministerial advisers.
The ‘political stuff’ referred
to by the departmental secretary quoted above seems clearly directed to
activity connected with the formulation of policy and the passage of
legislation –‘negotiating with the Senate and with outside bodies’. But what
has animated much of the debate around ‘children overboard’ has been the
engagement of ministerial staff in ‘political stuff’ at the interface between
ministers’ offices, their departments, the media and the electorate.
In the Committee’s view, rather
than ministerial advisers serving as a political buffer limiting the risk of
politically partisan activity on the part of the public service, they are
increasingly interventionist in ways that embroil agencies improperly as means
to advisers’ politically partisan ends.
A case study in the
accountability of ministerial advisers
The Committee has detailed in
previous Chapters the role played by ministerial staff in the handling of the
‘children overboard’ affair. The Committee is deeply disturbed by many of the
actions and omissions attributable to them. They played a significant part in
the failure of ministers to correct the public record. Their interactions with
public servants and Defence officials, and the way in which they managed
information flows in and out of ministers’ offices, raise numerous questions
about the appropriateness of their performance, let alone matters of courtesy
and fair dealing.
Throughout its inquiry the
Select Committee, as a result of a whole-of-government decision, has been
denied access to the ministerial staff in question. The basis for this refusal
includes the claim that to question ministerial staff is to undermine the
special nature and necessary confidentiality of the relationship between a minister
and his or her staff. The Clerk of the House of Representatives has also argued
that a probable immunity of ministerial staff exists by extension of the
immunity of members of the House of Representatives (and hence of ministers)
from being called before a committee of the Senate – and vice versa.
The Minister for Defence (Senator Robert Hill)
has also refused the appearance of certain officials even though, as public
servants, they do not fall under the cabinet prohibition on the appearance of MoPS Act staff. Such bans and refusals
are anathema to accountability.
The Committee has considerable
sympathy for the view that ministerial advisers and public servants should have
similar obligations with respect to public accountability. The Committee is not
suggesting that a parliamentary committee 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.
Over 25 years ago this same
debate took place over the appearance of departmental secretaries before
parliamentary committees. Many of the same arguments being made then about
public servants are now being made regarding ministerial staff. As Professor
Weller pointed out in his evidence to the Committee, 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. Indeed,
the appearance of public servants before committees is now quite routine.
Professor Weller also
highlighted the link between the growth in the role of ministerial staff and
the issue of accountability.
[I]f 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.
Ironically – especially given
his role as Defence minister in refusing the appearance of certain witnesses,
including public servants, before the Committee – it was Senator Hill who was a
strong advocate for accountability in earlier parliamentary debates on these
issues. At that time, Senator Hill gave a very clear 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. Indeed, in 1994 he led the (then) Opposition’s unsuccessful push to
have ministerial staff answer questions in relation to the Community Grants
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’. 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.’
Eight years later during a
discussion regarding the ‘children overboard’ incident in Senate Estimates
hearings, he was involved in the following exchange:
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.
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.
The Committee has been struck
by the extent to which the question of accountability of ministerial advisers
quickly became a topic for public debate as a direct result of the ‘children
overboard’ inquiry. Numerous press articles and editorials addressed the issue;
academics and prominent public servants spoke in public forums; and at least
two seminars were held under the auspices of universities.
The tone of this commentary was
universally critical of the behaviour of certain ministerial advisers, and was
invariably accompanied by calls for reform to ensure that advisers were more
directly and properly accountable to the parliament. The following extracts
from newspaper editorials and other published articles convey the substance of
those critical views.
Minders ought to be accountable: ...There may once have been some
justification for a screen... but most of the older reasons for a screen have
disappeared, just as the older operating systems have disappeared. The ones
which have taken their place are notionally completely unaccountable, and have created
a major vacuum in doctrines of ministerial responsibility and in the public’s
right to know about the workings of government.... Increasingly, staffers are
wielding executive power in their own right, and without reference to the
minister... Staffers are taking it upon themselves to decide whether advice given
is passed on to ministers, and ministers, from the Prime Minister down, flatly
refuse to accept any responsibility for the office if they can claim not to
have been told.
Unelected Rulers: More important in the long term, however, is
what may emerge from the inquiry about the role played by ministerial
advisers...and the way their employment has distorted the traditional values of
the Westminster system of government.. and the notion of an independent public
service... What is happening is that ministerial staff are being used to insulate
ministers from... responsibilities... [and].. from facts they might not want to
know. Ministerial advisers have become an extremely powerful and influential
arm of government, but also a secret and irresponsible one.
What lies beneath: Increasingly, the ministerial office has
been developing direct links into departments and agencies, managing the nature
and quality of advice, and frequently giving directions about what is to be
done, often completely away from the formal channels. Strictly, the minister
and his private office are subject to the same public service ethical code as
ordinary public servants. But the role of the ministerial office is poorly
documented, with a strong focus on oral, rather than written, advice, and with
the direct role of the minister often left deliberately vague, whether for
deniability ... or so as to protect a minister’s flexibility when things go awry.
The Select Committee’s approach
to ministerial advisers
Notwithstanding cabinet’s decision to prevent
Commonwealth departments from making submissions to the Inquiry into a Certain
Maritime Incident, and to ban ministerial staffers from appearing before the
Committee, the Committee made several requests to the relevant advisers for the
provision of written submissions, as well as delivering invitations to appear
at hearings. Similar invitations were extended to former Minister for Defence,
Mr Peter Reith. In the event, none of these people appeared before the
Committee, nor did they contribute submissions.
The Committee sought the views
of both the Clerk of the Senate and the Clerk of the House of Representatives
on the matter of whether any immunities attach to ministerial advisers with
respect to appearing before parliamentary committees. The Clerk of the Senate
has argued no immunity 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...
Having argued this legal
position, the Clerk of the Senate also suggested that calling ministerial staff
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...
The Clerk of the House of
Representatives argued for a probable immunity for advisers arising from their
direct association with the minister:
[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.
The Committee had the benefit
of a legal opinion provided to the Clerk of the Senate by Bret Walker SC. This
opinion, grounded in an examination of the Constitution,
the Parliamentary Privileges Act
1987, foundation texts in parliamentary practice and relevant High and Appeal
Court decisions, concluded that ‘former Ministers and Ministerial staff have no
immunity from compulsory attendance to give evidence and produce documents to a
One of the difficulties faced
by the Houses of Parliament 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, the Senate
Committee of Privileges in its report on the Parliamentary Privileges Amendment
(Enforcement of Lawful Orders) Bill 1994 noted that it was:
well understood 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,
Despite this remark, the
Committee of Privileges included in its final remarks the consideration 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.
Thus the Committee of
Privileges noted that, on the one hand it was ‘well understood’ that the
exercise of parliament’s powers in such cases was untenable, but at the same
time endorsed the very exercising of those powers.
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. It may be
argued that 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 unwittingly 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.
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.
Faced with the continued
refusal of these prospective witnesses to respond to invitations to appear, and
with correspondence from ministers indicating that they would not appear, the
Select Committee decided not to exercise its power to compel their attendance,
and thereby expose the advisers to the risk of being in contempt of the Senate should
they not respond to the summons. Part of its reason not to summon was based on
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'. The penalties for contempt include a gaol term and/or a heavy fine.
Instead, the Committee resolved
to appoint an Independent Assessor to perform the following task and report to
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.
An eminent barrister (Stephen
Odgers SC) was duly recruited to fulfil the role of Independent Assessor. His
report was tabled in the Senate along with the Committee’s own report.
The actions of the Committee in
this case reflect the complexity surrounding the conventions that have thus far
been observed with respect to ministerial advisers not being called before
committees – on the grounds that their accountability is exercised via their
minister. The Committee has serious doubts about the efficacy of these
conventions in the light of the issues canvassed above, and particularly in the
light of the behaviour of the ministerial staff involved in the ‘children
overboard’ affair. The time has come for a serious, formal re-evaluation of how
ministerial staff might properly render accountability to the parliament and
thereby to the public.
What is to be done about
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 ministerial staff in Australia have become targets for increasing public
scrutiny over the last ten years. Some of the more significant occasions have
been the federal travel rorts investigations in 1997 and, perhaps most
prominent of all, the ‘children overboard’ affair.
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. 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 Public Service Commissioner
has suggested that ‘there is a case for some articulation of the values and
code of conduct of ministerial officers’.
Public sector analyst and academic Dr 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...
Certainly the practice in other
countries is generally to regulate or guide ministerial staff more explicitly
than in Australia. In the UK a 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
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.
The Committee is attracted to
the idea of a code along the above lines. Dr John Uhr has taken a keen interest
in the UK developments, and described the key ways in which such a code
I would suggest three elements: the first is the fact that it is
a specified public document that articulates into the other specified public
document, the Civil Service Code—the fact that it is out there. Public focus is
one element of public accountability so that we know what to expect of these
classes of public officials. The second is that, in relation to ministerial
staffers, their accountability in terms of their employment relationships is
something that is managed by the Cabinet Secretary as the chief adviser to the
Prime Minister. It is something that goes right to the heart of government. You
can imagine the parallels that there would be here. The third element is that,
in terms of public servants feeling that somehow they are getting an unfair
deal and that the people with whom they are working, the ministerial staffers,
are unaccountable and irresponsible in their conduct, they have a right of
redress to the Public Service Commissioner—or the equivalent officer there as a
central government agency that has a supervisory role. They are the three
elements of accountability, none of which we have at all in relation to the
workings of ministerial staff.
Even prior to the Code’s
introduction, 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.
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.’
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. 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 are thus
subject to professional advice and scrutiny in a bid to ensure compliance with
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.
The Committee notes the views
of the Hon Tony Abbott MP, Minister Assisting the Prime Minister for the Public
Service, concerning what he described as the inevitable outcome of
controversies – namely, ‘calls for more rules’.
In government administration, problems typically arise from
errors of judgment rather than breaches of the law or a total breakdown of
ethical behaviour. I’m sceptical about new regulations which might turn out to
be better at tripping conscientious people focused on doing their job than
trapping villains who know how to cover their tracks.
This may be a reasonable view
to put forward where the government administration is proceeding according to
the norms of best practice, but it is a view which has turned the problem on
its head. The view does not address the kinds of behaviour that have been
manifest in the controversy at issue. The Committee’s inquiry has revealed
behaviour by advisers in their interactions with departments which is
inappropriate at best, and grossly improper at worst. Suitable regulations will
help insulate ‘conscientious people focused on doing their job’ from the
impediment of ‘villains’ seeking to ‘cover their tracks’.
The Public Service
Commissioner, in his evidence to the Select Committee, argued for a
clarification of the relationship between public servants and ministers’
The issue of trust is important until you get the relationship
working and ...[it] has got to be professional and cooperative.
In this context, you need to have a close relationship, but the
minister’s office is not there as a power to direct. The minister needs an
office there to help in the process and to handle the scale of activity, and by
nature there will be a lot of relationships between the minister’s office and
the staff of an organisation. But I think we do need to clarify, in law, there
is no power to direct.
The Committee understands the
Commissioner to be saying here that ministerial staff have no power to direct
in their own right as opposed to their legitimate role in conveying the
directions of the minister. It seems that departmental staff can no longer be
sure that an instruction or request from a ministerial adviser has the blessing
of the minister, or is consistent with the minister’s view on how a matter is
to be approached. For departmental secretaries in particular there seems to be
a need for greater clarity in the roles and responsibilities of the advisers
and secretary respectively.
The Committee believes that two
courses of action are needed to satisfactorily resolve the issues around
ministerial advisers that have been emerging for some years and have now been
brought sharply into focus as a result of the ‘children overboard’ affair. The
first requires the bringing of ministerial advisers properly within the scope
of parliamentary committee scrutiny, in a manner similar to that which
currently applies to public servants.
The second requires the
articulation of a Code of Conduct and Set of Values for ministerial advisers
within a legislative framework – possibly a modified MoPS Act. Such a code might include general guidelines as to how
advisers might go about their business, and what limits might be placed on
their power to direct public servants. It might also be desirable for the code
to state what they cannot do.
With respect to the first course of action,
the Committee believes that the appearance of ministerial staff before a
parliamentary committee will 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
With respect to the second
course of action, such a Code of Conduct will not only give clear guidance both
to ministerial advisers and to ministers about what is proper practice, but by
being enshrined in legislation will facilitate the establishment of mechanisms
for redress should such a code be breached.
The convention of ministerial
responsibility is one of the centre-pieces of Westminster style parliamentary
democracy. It enshrines the fundamental principle that the government is
accountable to parliament through its ministers. It asserts the essential
capacity of parliament to acquire accurate information, so that debate can be
meaningful and scrutiny effective.
[S]ecuring information is at the heart of the debating or
scrutiny process. Ill-informed debate cannot be effective ... the price of
democracy is eternal scrutiny ...[and] the success of a democracy is to be judged
by the extent to which it can ensure that government is publicly accountable.
A British observer, not alone
in the literature, and in a journal article mischievously titled ‘The right to
mislead Parliament?’, has noted that:
Recent political practice would seem to indicate... that there is
some distance between these grand statements of principle about the supposedly
central importance of ministerial responsibility on the one hand and the crude
reality of parliamentary practice on the other.
The Committee acknowledges
those grains of truth that lie in such a statement, but reaffirms the
fundamental importance of the principles which are its focus. The misleading of
the parliament and the public by governments is a very serious business, and
for many observers goes to the heart of a government’s credibility.
[S]hould we care if a minister lies or fails to correct an
untruth? Oh yes, very much. Very
There seems to be little point
in adding to the voluminous academic discussions about ministers’
responsibilities when in comes to rendering service and accountability to the
parliament and the public. Rather the Committee will link its discussion to one
key practical document - the Prime Minister’s Guide on Key Elements of Ministerial Responsibility.
To contextualise this
discussion, and to place ministerial responsibility at the heart of it, the
Committee draws attention to the following remarks given in evidence by Dr John
There are two issues. One is the integrity of Defence
intelligence. ... The other issue that the community is...more keenly interested in
is the integrity of public information. That is an issue that ...goes to
...[C]an we start to open this inquiry up as to how ministers
themselves satisfy themselves that they have got intelligence of integrity that
they can divulge to the community at the time of an election? I think there is
a duty on ministers themselves not to mislead the community. In fact, it is
part of Prime Minister Howard’s commendable ministerial code that ministers are
under a duty and obligation not to mislead the community....
I do not think we have had any evidence yet that ministers have
been actively involved in testing advice that has come to them. We have lots of
evidence before the committee... where ministerial staff acting on behalf of
ministers have, in a way, been acting as testers of evidence. But it has been
more like cherry picking rather than testing—not subjecting advice to scrutiny
to see whether it is ready for public information, but just picking and
choosing those parts that they think are of partisan advantage to them. ... I
think it is that element... the integrity of public information—that the
committee might well start to explore, because it goes to the heart of
ministerial and ministerial staffers’ responsibilities...
The Prime Minister’s Guide on Key Elements of Ministerial
Responsibility was issued in December 1998. It covers a range of issues,
from constitutional and legal frameworks to ministerial conduct, relations with
departments and ministerial staff conduct.
The opening statement in that part of the Guide dealing with Ministerial Conduct
states the following:
It is vital that ministers ... do not by their conduct undermine
public confidence in them or the government.
- Ministers must be honest in their public
dealings and should not intentionally mislead the Parliament or the public. Any
misconception caused inadvertently should be corrected at the earliest
- Ministers should ensure that their conduct is
defensible, and should consult the Prime Minister when in doubt about the
propriety of any course of action.
The Committee is of the view
that former minister Reith misled the public in relation to the ‘children
overboard’ affair during October and November 2001. As well, the evidence that
emerged in the Bryant report, and the failure of Mr Reith and his staff to
submit information to, or appear before, the Inquiry into a Certain Maritime
Incident further eroded public confidence in the government.
It seems extremely unlikely
that the former minister was not aware, even if he had not been categorically,
unambiguously and directly advised, that the initial ‘children overboard’
reports were not true. Certainly he had been told that the photographs he had
released were not evidence of the event. Mr Reith was therefore clearly in
breach of the Prime Minister’s guidelines. He did not deal honestly with the
public, he did not seek to correct misconceptions, and it is hard to see how
his conduct was anything other than indefensible.
To what extent Mr Reith
consulted the Prime Minister, if at all, about the course of action he took,
the Committee has been unable to properly determine. Certainly Mr Reith’s staff
were in touch with the Prime Minister’s office about aspects of these matters.
Mr Reith had held at least one conversation with the Prime Minister about the
photographs. The Prime Minister has consistently asserted that he was never
told the ‘children overboard’ story was untrue.
The Committee finds that Mr
Reith stands condemned for his deliberate misleading of the public, his
persistent failure to correct the record, and his refusal to cooperate with the
Senate inquiry charged by the parliament to get to the bottom of the affair.
Previous chapters have dealt in
some detail with the interactions between the minister or his staff and various
Defence officials. It is clear to the Committee that the way those interactions
were conducted failed to respect some important conventions of the relationship
between a department and a minister’s office.
On the question of a minister’s
role in relation to the conduct of ministerial advisers, the Prime Minister’s Guide states:
Ministers’ direct responsibility for actions of their personal
staff is, of necessity, greater than it is for their departments.... Ministers
therefore need to make careful judgements about the extent to which they
authorise staff to act on their behalf in dealings with departments. 
On this account, Mr Reith must bear
responsibility for the haranguing interventions of his personal staff into the
Department of Defence, the insertion of their politically-driven demands into
both the operational and administrative chains of command, and their complete
failure to adequately assess, and give proper weight to, the advice coming to
them from the Department.
If his ministerial advisers
were so dealing with the Department with their minister’s authority,
foreknowledge and approval – and the Committee has no evidence to suggest
otherwise – Mr Reith failed to maintain the standards specified in the Prime
As well, the Guide highlights the fact that ministers
must be scrupulous about not asking public servants to engage in activities
‘which could call into question their political impartiality.’ Such a meticulous requirement is
compromised by actions such as the ‘special arrangement’ that was put in place
to interrupt a commander in the middle of an operation in order to transmit
information outside the chain of command about matters whose policy context was
politically controversial, and with an election looming. It is also compromised
by things like the special public affairs plan insisted upon by the minister
that prevented Defence from communicating even factual information about
Operation Relex to the public – a prohibition that was reinforced by the
minister’s office to Defence officials the day after Air Marshal Houston
advised Mr Reith that no children had been thrown overboard.
The Prime Minister’s Guide, noting the importance of trust
between ministers and public servants, points out that both the minister and
the public servant ‘must contribute’ to its establishment and maintenance. In the Committee’s view, the actions
of the minister and his staff were on almost every occasion contrary to such an
For Defence officials to know,
for example, that they have acted to correct the public record, and to discover
that their minister repeatedly declines to do so, is profoundly undermining of
trust – not only trust in one’s minister, but trust in the leadership of the
Department. Thus has the minister doubly damaged professional relationships, as
well as sending the message to public servants that their ‘frank and fearless’
advice may be held in contempt.
Elsewhere, the Prime Minister
has spoken of such relationships of trust, stating that, when advice has been
given by a senior public servant it should be ‘properly considered and not
summarily dismissed’. In the
Committee’s view, to ‘properly consider’ advice is not to recklessly prosecute
it because of its immediate political advantage, nor in turn to ‘summarily
dismiss’ it if it is politically inconvenient. Mr Reith failed on both these
The Prime Minister’s Guide also states that, while it is not
for public servants to press their advice beyond the point where the minister
has indicated it is not favoured, they:
... should feel free, however, to raise issues for reconsideration
if they believe there are emerging problems or additional information that
warrant fresh examination.
The Committee’s assessment here
is that the reluctance of Mr Reith to correct the public record, prefaced by
the pursuit by his staff of corroborating evidence when there was none to be
had, could easily have led Defence officials to conclude that any pressing by
them for such a correction would not be ‘favoured’.
Most of them were diligent in
passing corrective advice up the chain of command. But from there, it seems,
most were resigned to the fact that they could do no more, and that it was now
in the hands of the CDF as the government’s principal military adviser. The
vertical accountability effort was clearly insufficient to produce the desired
Here again, the Committee
points to the flaw in the horizontal accountability arrangements which
highlights forcefully the need for an improved ‘culture of responsibility’ and for
a greater exercise of ‘navigational competence’ in whole-of-government
operations, especially at the top level of the bureaucracy.
The Committee appreciates that
there are tensions associated with the accountability requirements in
contemporary public administration. The Committee’s earlier discussion of the
Defence ‘diarchy’ and the whole-of-government responsibilities of the Secretary
of the Department of Defence explored these tensions in their ‘real life’
It is imperative that departmental
secretaries pay special attention to their whole-of-government
responsibilities, and that both senior public servants and ministers recognise
the validity and desirability of horizontal accountability. This may require
some adjustment in the attitudes and expectations of both parties.
The Committee is in no doubt
that a diligent pursuit of broader accountability responsibilities at the
senior levels of the public service, and a clear acceptance by ministers of the
legitimacy of that pursuit, is the only way to effectively meet the challenges
of contemporary governance.
Accountability of the executive
While much of the Committee’s
critique has been focussed on the former Minister for Defence, his office and
department, there are broader aspects of the ‘children overboard’ affair which
go to the question of the responsibility of the executive as a whole. After
all, the response to people smuggling at both the policy and legislative
levels, as well as in its implementation, was a whole-of-government activity.
The executive as a whole has
been very keen to take the credit for what it regards as a successful
whole-of-government operation on border protection and the handling of asylum
seekers. In the Committee’s view, the executive is therefore similarly obliged
to take corporate responsibility for any shortcomings.
Within hours of the alleged
incident having taken place, ministers were on the public record condemning the
SIEV 4 occupants for their abhorrent attempts to confect a ‘safety of life at
sea’ situation. During the days and weeks that followed questions continued to
be asked of, and statements continued to be made by, senior government
ministers, concerning the events. The public record remained uncorrected
throughout – for some a deliberate deceit, for others an unwitting perpetuation
of a falsehood because of inadequate advice.
The findings of the Routine
Inquiry by Major General Powell (the Powell Report) formally repudiated the
original report, and the Bryant Report, tabled in the parliament by the Prime
Minister, also found that children had not been thrown overboard. A period of
four months had elapsed. The CDF, Admiral Barrie, finally conceded in late
February 2002 that children had not been thrown overboard from SIEV 4. The
government’s response – instead of being a forthright acknowledgment of the
sustained error - was one of grudging acceptance of the CDF’s advice, combined
with a reiteration of its defence of ignorance due to faulty advice.
The Committee notes that none
of the ministers closely involved in the ‘children overboard’ affair appear to
have taken any action to reprimand or discipline advisers or officials who have
performed either inadequately or inappropriately in their various roles. Dr
Hawke offered his resignation on the grounds of his failure to properly advise
the former minister, Mr Reith. But no other key figures in the affair have
acknowledged any errors or omissions let alone confessed to any deliberate
misleading of their ministers or the public.
Ministers have been quick to
assert that they ‘were not told’ or were given ‘faulty advice’, but have been
singularly reluctant to admonish those responsible for those failures or
faults. The Committee contrasts this state of affairs with what has applied on
other occasions. For example, in 1997 the Prime Minister terminated the
services of two of his key staff for failing to tell him about a ministerial
repayment associated with the ‘travel rorts’ imbroglio, and in 2001 Deputy
Prime Minister John Anderson sacked his principal adviser and another staffer
for failing to inform him about the politically damaging contents of an Audit
Report on the national highways program.
In the Committee’s view, the
examples cited seem to have involved lapses rather than the deliberate,
possibly strategic, acts and omissions of advisers associated with Mr Reith.
Yet it seems, in the case of ‘children overboard’, no action was taken to
convey the government’s displeasure at having been poorly advised or misled. It
is reasonable to infer, therefore, that the government was not displeased with
the acts and omissions of Mr Reith’s advisers because the outcomes were
politically advantageous to the government in an election period.
The government’s handling of
the Senate Inquiry into a Certain Maritime Incident has been characterised by
minimal cooperation and occasionally outright resistance. During the early days
of the Inquiry, and notwithstanding that some agencies had already indicated to
the Select Committee that they were preparing submissions to it, the government
prohibited Commonwealth agencies from providing submissions. Cabinet also made
a decision, about which the Committee learned via media reports, that it would
not allow MoPS Act staff (ministerial
staff) to appear before the Committee.
Even though the Prime Minister
was explicit in telling the parliament that the ban affected only MoPS Act staff, and that public servants
would be allowed to appear, the
Minister for Defence (Senator Hill) refused permission for certain public
officials to appear.
In the Committee’s view, the
government’s actions during the Inquiry into a Certain Maritime Incident do not
promote transparency, and are inimical to accountability.
It is imperative that the
executive accept corporate responsibility for, and deliver corporate
accountability in respect of, any failures associated with the
whole-of-government approach to people smuggling. These failures, as this
report has described, include acts and omissions by senior officials,
inadequate IDC procedures, and the witting involvement of ministerial advisers
and a former minister in the deception of the public about events surrounding
In this context, the Committee
endorses the views expressed on 2 July 2002 by Professor Richard Mulgan of the
Graduate Program in Public Policy at the Australian National University.
The first step will be for the Government to admit the fact of
failure... [E]ven if ministers were not personally to blame they should still be
held accountable under the normal conventions of ministerial responsibility.
The public were misled on a politically sensitive issue when the truth was
readily discoverable by the government machine.
Ministers, including the Prime Minister, should ... express regret
that such a failure occurred on their watch. ... Only when the failure is openly
admitted will there be any chance of seeking to avoid its repetition.