The accountability of ministerial staff in Australia

Abstract

It is a reasonable community expectation that ministerial staff who enjoy the privilege of working at the interface of politics and public administration in Australia are subject to appropriate accountability measures. The key questions are what measures currently exist to hold ministerial staff accountable, how effective are such measures, and how could accountability be improved. While descriptions of an ‘accountability black hole’ for ministerial staff are overstated, the measures now in place do not operate uniformly across Australian jurisdictions, have on occasion developed in an ad hoc fashion and are sometimes uncertain in their application. Such circumstances highlight the need for reform, which may potentially encompass both accountability mechanisms directly applicable to ministerial staff, as well as measures that operate more broadly and apply to those with whom ministerial staff interact.

在政治与公共管理交合处工作的澳大利亚内阁工作人员需要 接受适当的问责，这是一种合情合理的社会期待。关键的问题在于目前都有哪些手段能对他们问责，这些手段能否改进。设计问责方法的关键因素是内阁工作人员特殊角色和责任，其不同于非政治的公务员，也不同于作为决策者并直接参加公共辩论的大臣。说内阁工作人员为“问责黑洞”未免言过其实，但现在的那些方法在所有澳大利亚司法辖区并未统一运行，有时以特事特办的方式存在，往往在应用上含糊不定。这种状况说明需要改革。改革可以囊括直接适用于内阁工作人员的问责机制，以及涵盖更广、适用于与他们打交道的那些人的办法。

Keywords:

• ministerial staff
• politics
• accountability

Notes

¹In many instances, a minister's executive power may be delegated to public service officials. In some specific circumstances, a minister's power may be delegated to ministerial staff – for example, where it relates to the functioning of a minister's office (§32, Members of Parliament (Staff) Act 1984 (Cth)). Power may be delegated where provided for under statute or exercised under an authorisation in accordance with the Carltona principle (see Carltona Ltd v Commissioners of Works [1943] 2 All ER 560 (CA)).

²According to Eichbaum and Shaw (2008: 343), such ‘procedural politicization’ manifests in two ways: first, when a ministerial staff member intervenes in the relationship between a minister and his or her officials; the second is where the conduct of ministerial staff is intended to or has the effect of constraining the capacity of officials to tender free, frank and fearless advice by intervening in the internal workings of a department.

³This may be the case for ministerial staff generally (§33, Public Sector Employment and Management Act 2002 (NSW); New South Wales, Department of Premier and Cabinet 2012) or particular categories of ministerial staff (e.g., staff seconded from the public service).

⁴This mainly arises due to the day-to-day interaction between ministers and staff, but may also arise due to specific legislation. In WA, for example, ministers are not formally employers, but the employer is required to consult with a minister before terminating employment of a ministerial staff member (§72(3), Public Sector Management Act 1994 (WA)).

⁵ David Davis MP v Office of the Premier [2011] VCAT 1629; The Herald and Weekly Times Pty Limited v The Office of the Premier (General) [2012] VCAT 967.

⁶ Office of the Premier v Herald and Weekly Times [2013] VSCA 79.

⁷It is beyond the scope of this article to provide complete details of this matter (see Victoria, Ombudsman 2011).

⁸These powers derive from §§49–50 of the Constitution, and are given effect through the Parliamentary Privilege Act 1987 (Cth) and Parliamentary Standing Orders. As to relevant Senate Standing Orders with respect to the calling and examination of witnesses, see Standing Order 34.

⁹As to the power of a Commonwealth house of parliament to punish default as a contempt, see R v Richards: ex parte Fitzpatrick and Browne (1955) 92 CLR 157; see also Parliamentary Privileges Act 1987 (Cth).

¹⁰A further circumstance referred to in the Senate Committee's findings was when ministerial staff administered a government program to a significant extent. Noting the reference to David Epstein's previous appearance before a Senate Committee in 1995, it is not entirely clear how often such circumstance would arise.

¹¹Executive privilege has been considered in some detail judicially in the US, and it may be of benefit if circumstances arose in which these issues were tested in Australian courts.

¹²See Commonwealth v Northern Land Council (1993) 176 CLR 604; Sankey v Whitlam (1978) 14 CLR 1 at pp. 38–46, 56–64, 95–99.