Tag Archives: Minister

How unwritten rules shape ministerial accountability

The Conversation

Ryan Goss, Australian National University

Recent police investigations into the alleged actions of Mal Brough, before he became special minister of state, have led some to suggest that “Westminster tradition” demands Brough step aside. But what does “Westminster tradition” mean in Australia, and how does ministerial responsibility work?

The Australian parliament’s website says the:

… federal government is held responsible to both the House of Representatives and the Senate.

But how? And why?

Australia’s Constitution sets the ground rules for its system of government. But many things one might expect to be in it simply aren’t there.

The Constitution doesn’t spell out how the prime minister is to be chosen, for instance, or when they should be obliged to resign. There’s no reference at all to the prime minister in the document. And although the Constitution requires ministers to be members of parliament, there’s no mention of terms such as “responsible government” or “ministerial responsibility”.

Despite this, jurist Sir Isaac Isaacs described responsible government as:

… part of the fabric on which the written words of the Constitution are superimposed.

And in a landmark 1992 High Court judgment, Chief Justice Anthony Mason said:

… the principle of responsible government – the system of government by which the executive is responsible to the legislature … is an integral element in the Constitution.

But where do we find this “integral element”, if not in the text of the Constitution?

What are conventions?

In many important areas of Australia’s system of government, much is determined by unwritten rules – or what we call “constitutional conventions”. Australia shares this characteristic with the UK’s Westminister system of government, on which Australia’s is partly based.

As British legal writer Sir Ivor Jennings put it, constitutional conventions:

… provide the flesh which clothes the dry bones of the law.

They are rules that help make the legal text of the Constitution work, and they can add some flexibility to constitutional arrangements by evolving over time.

Australia isn’t alone in relying on such conventions to make its Constitution work. Many countries have similar conventions to Australia’s; different legal systems also have different conventions. In the United Kingdom, for instance, it’s a convention that the Speaker of the House of Commons is truly independent of party politics – but there is no such convention in Australia.

As they are unwritten rules, it’s not always entirely clear when a constitutional convention exists, let alone exactly what it allows or requires. Unlike laws, constitutional conventions cannot be enforced in the courts.

So, when a convention is broken, the consequences are usually political rather than legal. Instead of being brought before the courts, a convention breaker is more likely to suffer political criticism, be the subject of popular outcry, or be punished at the ballot box.

But while conventions cannot be enforced in the courts, they’re understood by everyone involved to be important constitutional rules.

Why is it so?

When the Australian Constitution’s framers were drafting its text in the late 1800s, they thought certain things went without saying, given the way the system was designed.

That means Australia’s constitutional system is built on the assumption that all ministers will be responsible to the parliament and, through the parliament, responsible to the Australian people. But there’s no precise legal statement of how that assumption works, what it covers, and what happens if the ministers are not sufficiently responsible.

The general understanding is that ministers are accountable to parliament for their policy decisions, for the administration of their departments and for any relevant indiscretions. But these are unwritten rules: what does “accountable” mean anyway?

For some, it means the minister must resign upon the discovery of any misadministration or mistake. For others, accountability requires that the minister is obliged:

… to explain and to justify his or her conduct, the [parliament] can pose questions and pass judgement, and the [minister] may face consequences.

But there’s no authoritative view.

The reality is that political circumstances will determine what’s required of a minister, and the consequences for not meeting expectations. If a minister has the support of their party colleagues, for example, it’s possible that less will be required of that minister and that the consequences will be less severe than they might otherwise have been.

What chance reform?

A desire for greater certainty has led to some discussion in Australia – and elsewhere – of arguments in favour of codifying constitutional conventions and making them enforceable as a matter of law. This is certainly possible.

As recently as 1977, the Australian Constitution was amended to codify and entrench what had previously been a convention about filling casual vacancies in the Senate. The argument for codification may make most sense in the context of conventions about the Governor-General’s reserve powers, over which there was so much controversy in 1975.

But the risk of codifying conventions more generally is that we transfer power away from democratically elected representatives and towards the courts. If we legally require ministers to resign for poor administration of their departments, for example, a judge might have the final say about whether a particular minister should resign for a particular action. This may undermine the extent to which the people can control their government.

The question then becomes whether we prefer greater flexibility and democratic control over the government, or greater certainty and judicial control. But there may be a middle ground.

The Australian Department of Prime Minister and Cabinet, for instance, offers a “guidance” document on those constitutional conventions known as caretaker conventions. These conventions affect how government operates during election campaigns.

The document is “neither legally binding nor hard and fast rules”, and cannot be enforced in the courts. But it offers clarity for those affected by the relevant constitutional conventions. Similar guidance documents on other conventions could provide greater certainty about the relevant unwritten rules.

But, as things stand, it’s incumbent on all of us, as citizens in a democratic society, to ensure that our representatives hold our government to account.

This article is part of a series on breaking political conventions. Look out for more articles exploring various political conventions in the coming days.

The ConversationRyan Goss, Lecturer in Law, Australian National University

This article was originally published on The Conversation. (Reblogged by permission). Read the original article.

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Dealing with ministerial advisers: a practical guide for public servants

The Conversation

Yehudi Blacher, University of Melbourne

The role of ministerial advisers and their relationship to public servants has been the subject of a serious public debate in recent weeks.

Business Council of Australia chief Jennifer Westacott caused a stir when she advocated that the number of ministerial advisers in the public service be halved. Less controversial was former Secretary of the Department of Prime Minister and Cabinet Terry Moran’s suggestion that the code of conduct introduced by the Rudd government in 2008 be formally legislated, an initiative Westacott also supports.

Political advisers in ministers’ offices are here to stay, so the proposal for a legislated code of conduct is both a sound one and long overdue at both state and commonwealth levels.

But important as such codes are, they will not of themselves be sufficient to regulate the behaviour of ministerial advisers or their relationship to the public servants who they need to deal with on a day-to-day basis.

Equally important is the behaviour of public servants themselves – particularly heads of government departments.

Yes, minister

At the outset it should be said that advisers have an important role to play in supporting their ministers and acting as a bridge between the minister and his or her department. It also needs to be acknowledged that ministerial offices often work under extreme pressure. This stems from the challenges of parliamentary politics and the difficulties of developing policy and implementing change under blinding glare of the 24-hour news cycle.

Much of course depends on the skills and capabilities of the advisers themselves. In my experience, the quality of political advisers tends to be highest when governments are newly elected and there is a relatively deep pool of political advisers, often with previous experience working in similar roles, eager to take on these roles.

As governments get older, it is often the case that the best advisers go on to do other things and the talent pool gets thinner and less experienced; sometimes with a poor understanding of the boundaries of their roles vis-a-vis both their ministers and the public service.

New governments often make a virtue of having fewer ministerial staff than their immediate predecessors. However, as governments age, the number of ministerial staff tends to grow. This increase in staff – sometimes very young and always enthusiastic – can create demands on departments without commensurate benefits for the minister.

While departmental secretaries cannot direct ministerial advisers, there is much that they can do in establishing a framework for appropriate working relationships with ministers and their offices.

Four steps to departmental harmony

At a minimum the framework should cover the following elements.

First, secretaries need to make it clear that advisers cannot give directions to departmental staff. The best way to do this is to identify a specific number of key senior officers to whom advisers can make requests on behalf of the minister. As an adjunct to this arrangement ministers should be told that the department will not stand behind any advice he or she receives that doesn’t come through the normal paper-flow channel.

The terrifying Malcolm Tucker from TV series The Thick Of It is the ultimate example of an unelected adviser wielding enormous political influence. BBC/The Thick Of It

Secondly, it is essential for secretaries to insist that their advice is to the minister only. While political advisers are at liberty to make comments to the minister about departmental advice, they should not to act as gate-keepers in determining what and when briefings go to the minister.

The best way to prevent this gate-keeping role is for the secretary to be aware of when key briefings leave the department and after a reasonable period for ministerial office scrutiny seek to have the briefing discussed with the minister.

Finally, under no circumstances should a secretary allow a ministerial adviser to request the department to re-write a recommendation from the department on a particular matter.

Of course there should be opportunities for discussion between the department and the minister’s office about the substance of advice. However, at the end of the day the minister is entitled to receive the department’s best advice and the department is obliged to provide it. If someone in the minister’s office disagrees with that advice, they are always able to write a covering note or say so directly to the minister.

It is also vital that departmental staff have an appreciation of the pressures of working in a ministerial office. Advice needs to be provided within time-lines that take into account the need for ministers to consult with their colleagues and reflect on media implications of the matter under consideration. Ministerial advisers also need receive early advice about issues which could be problematic to their minister.

The role of the secretary is pivotal. Departmental staff take their lead from the top. If the secretary establishes a clear modus operandi with a minister’s staff (and the minister when necessary), political advisers and public servants are much less likely to engage in the sorts of behaviours that cause difficulties for themselves, their department and the minister.

Give and take

This framework is standard fare for the way most secretaries relate to their ministers and their staff. But like all human relationships it’s one which needs to be worked on continually.

At its core is a simple point; both advisers and public servants need to understand that each have different but complementary roles to play. In framing their advice public servants should have the ability and confidence to use advisers to gain a broader understanding of the issues concerning the minister; and do so without compromising the integrity of that advice.

Advisers need to appreciate that ministerial decision-making can only benefit by being exposed to the different perspectives that public servants can bring to an issue. They should value the understanding public servants can bring to the subject matter at hand.

In the end, whatever is specified in codes of conduct, legislated or otherwise, the relationships between ministerial offices and departments will only work if secretaries and ministers make clear the behaviour they expect from their staff.

The ConversationYehudi Blacher, Professorial Fellow, Centre for Public Policy, University of Melbourne

This article was originally published on The Conversation. (Reblogged by permission). Read the original article.


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