Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
FINANCE AND PUBLIC ADMINISTRATION REFERENCES COMMITTEE
02/09/2003
Inquiry into members of parliament staff

CHAIR —Welcome to the inquiry and thank you for your patience. You were here this morning when I read out the introduction in regard to the way in which committees of the parliament operate, and you should have received the advice concerning the protections and obligations that apply to witnesses under parliamentary privilege. We do prefer our hearings to be in public but if there is something that you wish to raise with the committee in private, we would consider any such request at that time. You have provided us with a written submission and we certainly thank you for that. Would you like to make some opening comments and we will then proceed to questions.

Major Gen. Stretton —Thank you.

Senator WATSON —You might like to comment on some of the matters that were raised today by some of the other witnesses.

Major Gen. Stretton —Yes, I will do that. Although your terms of reference are very wide, my submission relates only to your terms of reference (d) and (e) that concern the accountability of the MOP staff to parliament and the public. My remarks will be confined to the ministers' staff appointed under the MOP(S) Act who work in ministers' offices other than in electorate offices. When you read that I was dealing with ministers 30 years ago when the political staffs were first introduced, no doubt you would have considered that I am well past my use-by date. That might be so, but I appear to be the only witness with a practical suggestion as to how political staff can be made accountable to parliament and the public. Over the years, I have observed the growth in power and influence of these political staffs. It came to a head in the recent inquiry into a certain maritime incident when certain ministers refused to allow their political staffs to appear before a parliamentary inquiry. That was the straw that broke the camel's back and that is the reason why this inquiry has been set up. The main item in it is accountability and that is why I am confining myself to what I believe is the crux of the matter here today.

I was invited by your secretary to make brief comments on other submissions, which I would now like to do. I would have to say that I was absolutely astounded to read on the first page of the submission from the Public Service Commissioner:

The increasing role of ministerial advisers is one of the most significant means by which public administration has become more responsive to the elected government.

That is what he says on page 1. Of course, the contrary is true. The truth is that the increasing role of ministerial advisers, with their lack of accountability, is one of the significant means by which ministers avoid public scrutiny and thus are able to keep the parliament and the public in the dark.

I have read

most of the submissions to this inquiry, including particularly those from the Department of the Prime Minister and Cabinet, the department of finance and, indeed, the Public Service Commissioner. I have read a lot about the relationship between ministers and public servants. I have read about the Prime Minister's guide on the elements of ministerial responsibility. I have read about codes of conduct, guidelines for official witnesses and even about the contracts for secretaries of departments. I have read a lot about ethics and morality—and I am sure you are going to hear more about that later—but nowhere have I read any practical recommendation as to how MOP(S) Act staff can be made accountable for their actions to the parliament and to the public.

My submission gives a simple solution to this problem. The problem, of course, is that ministerial staff have gone far beyond their original role of giving advice and personal assistance to ministers. According to the Clerk of the Senate, Harry Evans, they make decisions, purportedly on behalf of ministers; they give directions to departments; they control access to their ministers; they determine what information reaches their minister, including information from the minister's own department; and they manage the media. They have become experts in that last role—as spin doctors—designed to confuse and mislead the public. How can they do all this? They can do it because, at the moment, their actions are not subject to parliamentary scrutiny. The parliament or the public cannot discover what ministers knew or did not know about any particular matter. One can easily imagine why ministers or shadow ministers would not be keen to change the present system.

How has this lack of parliamentary scrutiny been allowed to occur? The answer is simple: it is because the MOP(S) Act does not address the problem; it is silent. The simple remedy is to insert in the MOP(S) Act a clause stating that persons appointed under that act can be compelled to give evidence before any duly constituted parliamentary committee provided that such evidence does not include advice given to a minister. In my view, the minister accepts full responsibility for his decisions, and advice tendered by his personal staff is privileged information. That, of course, came out this morning in the questions asked of Dr Shergold about when information becomes advice and therefore should not then be disclosed to the public. I agree with Dr Shergold that advice provided by personal staff to a minister should not be subject to scrutiny..

If you put such a clause in the MOP(S) Act, as I have suggested, there has got to be provision to exempt evidence that might damage national security, jeopardise public safety or disclose cabinet deliberations. However, safeguards would have to be provided in any legislation to prevent ministers using these exemptions to deny parliament the facts about their own actions. You have got to have those exemptions in, but you should take away from the ministers the right to decide whether or not their personal staff should be allowed to appear. A decision about cabinet deliberations, for instance, should be a matter for the Prime Minister to decide. Also, if there were matters such as public safety, the person to decide that should be the director-general of intelligence, not political ministers who want to keep their staff from appearing before committees such as yours. What I am saying is that the only way you are going to make them accountable is to put it into legislation, and the piece of legislation that is appropriate is the MOP(S) Act. Some of these safeguards that I have mentioned would also have to be put into it.

There is another area of evasion of responsibility. The problem is that it is difficult to know whether information given to a minister's office actually reaches the minister. This was alluded to this morning. I am talking about officials or public servants giving information to a minister's office: does it reach the minister? You are never quite sure. It suits the minister to say, `No, I never received it.' There is a further thing that was alluded to this morning, and that is whether directions coming from political staff actually came from the minister himself. That is another problem. These problems can also be overcome simply by putting it into legislation in the MOP(S) Act. The legislation should be that any information given to the minister's staff is deemed to have been received by the minister; likewise, any information or directions coming from the minister's office is deemed to be given by the minister—unless there are compelling reasons to the contrary. So if the minister is saying, `This information might have been given to my political staff in the office, but I did not receive it,' there would have to be compelling evidence to that effect when that official came under parliamentary scrutiny.

The question of a code of conduct, or devising a set of rules, is outside my submission. I am dealing only with accountability, and I do not believe codes of conduct relate to that. You can say ethically what they can do and what they cannot do, but the crux of the matter is getting them to appear before committees such as this. There is an option that might loom up when you come to discuss this matter, and you might think it is something that is going to solve the problem. That is, you are all aware of the government guidelines for official witnesses, which relate mainly to public servants. You might think it is an option—'Let's put appointees under the MOP(S) Act into that category, and this will solve our problem.' Let me tell you: it will not solve the problem at all.

There is nothing in those guidelines whatsoever that compels a public servant to appear before a parliamentary committee without their minister's consent. You can go through that act and see that the minister decides almost everything—who is going to appear and what he is going to say. In fact, the submissions are all approved by the minister. If the minister does not agree, you are not going to get anyone here by just changing those guidelines. If you think that is an easy way out, it is really, quite frankly, a Clayton's decision. You will find nothing in those guidelines that can even compel a public servant to appear without his minister's consent. You can get a public servant before the Senate in other ways—for instance, by a resolution of the Senate. In fact, if you look at those guidelines, you will find it mentioned in brackets that the only way you can make a public servant appear here without his minister's consent is, indeed, by a resolution of the Senate. Finally, before I close—and I am sorry Senator Bartlett is not here at the moment, because he raised this point—I want to address the separation of powers and the Constitution.

Senator WATSON —It was Senator Murray, I think.

Major Gen. Stretton —It was Senator Murray—I stand corrected; I am sorry. Under the Constitution, ministers form part of the executive government. These days, party whips ensure that government members of parliament vote in accordance with cabinet decisions. In other words, the parliament votes, in general terms, in accordance with what the executive cabinet decides. The power of parliament has therefore been eroded by the executive and—unfortunately I have to say this; I am representing the public here—we see too many cases where members of parliamentary committees listen to outstanding arguments about why something should happen and then vote on party lines. That is just a waste of public money and an exercise in futility. Your committee is going to be severely tested—and I am talking about the representatives of the major parties—as to whether you are going to risk incurring the displeasure of your political masters and thus nip your promising careers in the bud—

CHAIR —That's before the public do it!

Major Gen. Stretton —or, alternatively, strike a blow for the power of parliament. You have a great opportunity to try and put some teeth back into the parliament and you can do that by voting for the two simple amendments I have suggested to the MOP(S) Act. As I look around this afternoon at those senators who are here, I am sure you will all have the guts to take this robust and courageous step.

CHAIR —Thank you, Major General. I would like to ask you a question at the outset, and I appreciate we are conscious of the time. You spoke about a minister being deemed to have received advice or information even where it may not have been passed on. One of the key issues that arose in the certain maritime incident saga was that certain reports from the Office of National Assessments were relied upon by the Prime Minister and the minister, which I think it would be fair to say were heavily qualified when they were given. In particular the Prime Minister referred to reports from the ONA just two days before the election but omitted to point out that there was a qualification—a covering letter—from the ONA to that effect. This is a circumstance where advice and information is provided but is not fully outlined in detail, so a misunderstanding or an impression is created which is not true and which is not later corrected.

You have had long experience in the Public Service and in the intelligence area. You might like to comment on the sorts of situations that could arise, like that one, where there has not been a failure to communicate the advice but rather a failure at the ministerial end, either with the adviser, the minister or the Prime Minister—in other words, misuse of that advice—and how that might then be addressed.

Major Gen. Stretton —That is a hybrid sort of situation. The situation I referred to originally was where the minister's office is informed about something, which then blows up, and the minister says, `I was never told.' On the other hand, if whatever happened was great, the minister will say, `I was told; that was my idea.' You have raised something that is in between those. If I now put on my old intelligence hat, and think back, things have not changed.

The nature of intelligence is such that you receive a whole lot of reports, some of them conflicting, from all sorts of sources. That raw intelligence should always be kept away from ministers because they will select out of it what they want. From reports, they can select anything they want and make any point they want, because they are all conflicting. We used to grade some of the reports from A1 to A6. First of all, we would grade the source. If he was not a good source he would be A6. It his information was crook, that too would be A6.

But ministers are politicians—if you give them that raw intelligence they are going to use it. Therefore, a great onus falls on the assessment staff. I am talking about the Office of National Assessments and other assessment staff—the Defence Intelligence Organisation. Only the processed, analytical side of the intelligence should be given to ministers. That is how it always was when I was a member of the National Intelligence Committee. It seems to me that intelligence assessment staff should be reminded of these things.

I suppose I have to be careful what I say—though we are being honest here—but the person running an assessment organisation is dependent on the government for the money to run his organisation. When he gets something that looks fairly good, and rushes up to the government and says, `Look at this intelligence,' although, as the Chair pointed out, he puts qualifications on that intelligence, the tendency of the government is to drop the qualification. I believe that this is what has been happening. To answer your question, firstly, I believe that assessment staff should be reminded about what they should be passing on to ministers and, secondly, that ministers should use the full information and not cut bits out of it to suit themselves.

Senator WATSON —The comparison between departmental staff and advisers is not as clear as I think you would like to make out. From your experience and intelligence you would appreciate that material coming to hand is, to use your word, `filtered', because the parliamentarian must select that which is beneficial for the political process. Also, in a sense the highly paid ministerial adviser also receives material which I would think he would have to filter out to some extent. In the first case, that filtering out process is not subject, I don't think, to parliamentary scrutiny—

Major Gen. Stretton —No, it is not.

Senator WATSON —Why should the filtering out process by the adviser then be subject to parliamentary scrutiny as to what information he received and how he conveyed that to the minister? That is the dilemma that I see. You cannot have one rule for one and not for the other.

Major Gen. Stretton —I think you can. I will give you a robust answer. The senior political adviser—which I will call him; we know what I am talking about—is giving advice to the minister, and, as I said earlier, I believe advice to a minister is executive privileged information. The intelligence people giving an assessment to the minister are not giving advice to the minister. They are giving an assessment which they have drawn up from a number of sources; they are not giving advice. So I see a distinct difference between the intelligence assessments going up and, information coming from political staff.

The chief political adviser in a minister's office and the minister are so thick and hand-in-glove that I do not think there are many secrets between them. I cannot think of an example where a political adviser had got hold of something that was a bit dodgy but in the party's interest and where he would keep that away from the minister. He would be the first one into the office to plonk it on the minister's table. That is my assessment.

CHAIR —In the incident that I referred to, it was not intelligence; it was reports of what was alleged to have occurred on the vessel.

Major Gen. Stretton —I think that is intelligence.

CHAIR —In the context that it is not necessarily the same as what happened in respect of the more recent issues over intelligence on Iraq's weapons, because the incident either happened or did not happen on board the vessel.

Major Gen. Stretton —I do not want to open up the other inquiry, but some of this confusion was indeed caused within the Navy itself.

Senator MURRAY —I think there is a subtext behind some of what you are saying. Let me express it this way. An intelligence officer in the government or a policy officer has security of tenure which is not affected by elections. A minister and his or her political adviser are acutely conscious of the short term: their actions, their performance will affect their job security. In a natural human way then I think you are more at risk with the political persona than you are with the government persona, because they have got more at risk. Therefore, at times you may find people who go that yard too far. That is one of the reasons that the political environment has such strong motivation towards transparency, accountability and openness—being responsible to parliament as a minister.

It seems to me that what you are saying, if you combine it with what I am saying, is that the minister is fully responsible to parliament and the government officers are fully responsible to parliament, through the estimates processes and so on, but in the middle is someone whose actions might on occasion be absolutely critical to a particular circumstance and whose motivations are affected by short-term, very human considerations. Therefore, to my mind there is even more need to ensure propriety in how they operate. Do you agree with that?

Major Gen. Stretton —I agree entirely. You are saying that the political staff will support their minister at all costs—including, probably, the cost of truth—because their very employment and livelihood depends on it. I agree that that is what is going on. I believe this committee has an opportunity to put some accountability into it so that the public will know what is going on. If you do not do something positive along the lines I have suggested or if in your deliberations you do as many committees do and break up on political lines, then nothing is going to be achieved. Accountability is the crux of this inquiry. The only way you are going to get accountability is to legislate for it, and you should be making that recommendation.

Senator MURRAY —I want your reaction, as a person with long experience, to my thesis. My belief is that we have more and more prescriptive legislation—in fact, the Institute of Company Directors sent me a graph some years ago which said we have had more legislation in the past 10 years than in the previous 90—because we can less and less rely on people to do the right thing. The argument has been put to us that, in dealing with this conundrum, we should avoid being too prescriptive. My reply is that we cannot be sure enough any longer that most people, or nearly all people, will do the right thing, and therefore we do need extra prescription which we might not have needed before. I did not put this to him, but Dr Shergold implicitly said there is no such thing as an earlier golden age; it has always been thus. I would like your reaction. Do you think there is any merit to what I have been saying?

Major Gen. Stretton —I agree with you 100 per cent. The fact of the matter is that unless you put some legislation in you are not going to get the result that you should be getting from this committee. That is the whole nature of it. Some people say that we do want any more legislation. Look at the legislation that is coming out. I am suggesting two lousy paragraphs in the MOP(S) Act; it does not enter into the equation. I just cannot understand why in all the submissions I read from erudite public servants—and I have a lot of time for them—there was not one thing that made any recommendation as to how to make these staff accountable to the parliamentary committees. So what was all that about? Perhaps I am just a simple solider, but sometimes when you are simple you can get to the crux of a problem.

Senator CARR —Have you read Don Russell's submission?

Major Gen. Stretton —No, that is one I did not read; I am sorry.

Senator CARR —He does deal with the issues of accountability and implementation. His argument is that there should be a series of changes to overcome this obvious difficulty, the firewall that you speak of. At the core of it, if I read it correctly, he says that there should be a situation where advice to the ministerial adviser is automatically assumed to be advice to the minister. That is the first point.

The second point is that ministerial office holders have the option of acknowledging whether or not advice was tendered. If it was not tendered, the proposition is that advisers are obliged therefore to front the normal accountability mechanisms of the parliament. The third element of his submission, if I recall it correctly, is that there should be a restoration of tenure for the senior Public Service so that, where there is complaint by public servants, there is a chain of command and people in command within the civil service have the capacity without fear of retribution to raise concerns about the behaviour of ministerial staff. What do you say to those sorts of propositions?

Major Gen. Stretton —I would say that, not having read his submission, I think it is quite remarkable that his first two recommendations are exactly the same as mine—or virtually.

Senator CARR —He is clearly a very clever man.

Major Gen. Stretton —Not only is he very clever but he has come to that view without reading my submission. The third point to comes back to what I think you are alluding to. The head of a department used to be referred to as a permanent head, but we have moved away from that. Obviously—it has happened—he can be sacked at the whim of his minister. I take it that Mr Russell is saying that we should have more permanency at the head to stop that.

Senator CARR —He says tenure, not permanent heads. He talks about tenure.

Major Gen. Stretton —Yes. Obviously, if there is more tenure you are more likely to give the fearless advice that everyone was talking about this morning. I think that there is something in that as well. Compared with most other people in the community today, the tenure of public servants is pretty good. If you work for a bank or something, you are not sure whether you will be here tomorrow. I think a public servant has more security of tenure now than most other elements in the community do. I was looking at the top of it, where, indeed, a great change has taken place with the heads of departments. I would like to see a bit more security of tenure there, which I think will help them if they are going to give advice to the government that is not in accordance with government policies.

Senator CARR —I have an entirely open mind on this, but one of the issues that I think we have to confront is enforceability. How do you find a mechanism that means it can have real teeth and not just be sidestepped?

Major Gen. Stretton —I will tell you how: you put a simple paragraph in the MOP(S) Act—

Senator CARR —I have heard you say this.

Major Gen. Stretton —making them accountable.

Senator CARR —That is terrific, but we spend many millions of dollars a year on making ministers accountable. It is not quite as simple as that, in my experience. The point is that administrative practices which are simple, which actually require compliance, often have greater force than devices which are wide open to abuse, such as a legal framework that can be easily sidestepped. If the accountability provisions that currently exist are actually applied, would that not be a stronger position to be in?

Major Gen. Stretton —There is no accountability to parliamentary committees that I am aware of that applies to political staff of ministers. That is why we have this inquiry: to try to address this problem and make them accountable.

Senator CARR —I take it that you heard the submissions of Dr Shergold this morning, who was basically telling us that everything is pretty good at the moment and there are no real problems.

Major Gen. Stretton —That is right.

Senator CARR —You do not share that view?

Major Gen. Stretton —No, I do not—and I do not need 17 advisers with me, either, to come to that decision here on my own; I feel a bit like the Lone Ranger. My view is exactly what I think you are getting at. Remember, I am representing the public here today, and I am sure they do not think that everything is hunky-dory or that everything is going along smoothly. There is an apprehension out there that they are not getting the true story on a number of issues which we are all aware of. Frankly, I would not expect the head of the Department of the Prime Minister and Cabinet to come in here and say, `This is terrible,' and so on. After all, he is not quite sure of his security of tenure! I have no worries about security of tenure, so I can speak quite frankly and openly.

Senator CARR —I accept what you say: that it is not unreasonable to expect the head of the Prime Minister's department to tell us that things are going very well. It should not surprise any of us at this table that that is the case. You have obviously mixed with a lot of retired former senior military officers, and I presume you also mix with serving officers from time to time. Do you think the opinions that you have expressed have currency within those circles, whether it be amongst retired or currently serving officers?

Major Gen. Stretton —I also have contact with senior public servants. I think that there is a lot of currency when it comes to the personal staff of ministers not being accountable. When a parliamentary committee tries to inquire into something like a certain maritime incident and cannot really get to the bottom of it because these ministers will not let their political staffers appear and tell the truth, I think the people you asked me about, retired people, are quite worried about that. I think the issue of accountability has only come up in the last 12 months. I think there were not enough incidents before that to bring it to the public attention in terms of what it all meant. Now, of course, it is out on the public record.

Senator CARR —A lot of these things become public because members of the armed forces or senior elements of the Public Service make it their business to ensure that this information is made available; that is, there is an unauthorised disclosure. Otherwise, the public probably would not know about it. We certainly would not necessarily have much to go on in terms of our jobs if it were not for whistleblowers in one form or other. Do you think there is a problem with politicisation of the Public Service? Is this what people are responding to?

Major Gen. Stretton —I still believe that the Public Service—and I am talking about 90 per cent or more of the Public Service—does give their ministers, the government, objective and well balanced submissions. Obviously, in an organisation the size of the Public Service, with a high number of people in the SES, some people—a very small minority—are going to be looking to their futures and do not give this fearless advice; I think somebody said 99.7 per cent do. In general terms, I would have to agree with the Secretary of the Department of the Prime Minister and Cabinet in what he said this morning, in that I think the Public Service, overall, do a pretty good job. I do not think they have become politicised like, for instance, in the United States—which is a different category altogether.

Senator MOORE —You have contributed to this inquiry because you have a personal interest in this area, but in one of your previous answers you said that the public do not think what is going on is hunky-dory. Do you think that the issues being raised about accountability have actually been picked up by the public? Is there public interest in this?

Major Gen. Stretton —There is more interest than there used to be. One thing I find most distressing is when you get into a debate about, say, why we went into Iraq and the question of that intelligence and—although there is a greater awareness than there was previously—the public are not out really demanding the truth; it seems that they put that in the background and get on with their lives. They do not seem to have the sort of response that I would have expected them to have. So there is a certain apathy in the public. We can go to war on what may seem to be spurious grounds, and the public generally accept that. We are just lucky that we did not have a number of casualties and that things did not get a lot worse. If they had got worse, all these things that I am talking about and the anger of the public would come to the fore. But we had no casualties and, although we still have 1,000 defence people in Iraq, they are not in combat jobs. If we had a big force still there and we were suffering casualties like the United States is, I think you would find a great clamour in the public to know more about the intelligence that sent them there in the first place. But, because there were no casualties and we have gone back to normality, I do not think it has become the major issue that I hoped it might have become.

Senator MOORE —Your premise is that actually directing, through the MOP(S) Act, ministerial staffers to appear before committees would create an environment where there would be greater accountability. I think that is a step, but my concern is that once you start bringing in all the preclusions about what can be used to say that there is no necessity to answer, you actually then begin pulling back the accountability aspects. We can get anyone to come and talk to a committee, but once you actually say `confidential', `cabinet-in-confidence', `military security', `private business arrangements'—all the different things—you actually weaken the premise of getting someone to come to a committee. How do you balance that?

Major Gen. Stretton —I did say that the decision as to who should be exempt under these various matters should not be in the hands of the minister; that it should be in someone else's hands. As you rightly are suggesting, ministers will use that to make sure no-one comes before the committee. There has to be some provision for exemptions. You might have to set up some sort of commission or something that will decide these things. You might give it to the judiciary. You might have public servants or a committee of people to do these things. But, as you rightly say, it cannot be left in the hands of the minister whose personal staff are being required to attend.

CHAIR —There being no further questions, I would like to thank you for appearing before the inquiry today and for your submission. We appreciated it very much.

Major Gen. Stretton —Thank you.

[2.54 p.m.]