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. Thank you for your extreme patience, Dr Uhr, as we have delayed you somewhat in providing your evidence. You have been provided with details regarding the processes of the committee and the operation of parliamentary privilege. As you are aware, we prefer evidence to be taken in public but, if you feel it is necessary, you can ask us to take evidence in camera and we will consider that request. Do you have any comments to make on the capacity in which you appear?

Dr Uhr —I am a senior fellow in political science at the Australian National University.

CHAIR —We have received a written submission from you. I invite you to make some opening comments, and then we will proceed to questions.

Dr Uhr —As a former Senate committee secretary, I am really keen to try to help the committee break this logjam. At the moment you have a set of possibilities, or options, that are very difficult to try to balance. On the one hand, you have a no accountability claim—let us call it the `Don Russell option'—which says that the call is really with ministers. If they want to release their staff for accountability purposes, that is their call. It is a kind of `Trust the minister' game. That is consistent, generally, with the way ministerial responsibility is acted out, and it has a lot of reasons going for it. I would not walk away from it, but it is not the option I support. On the other hand, you have the all accountability option—the `General Stretton option'—which says, `Let's whack a provision in the law and give them a legal obligation to front up every time a parliament committee has the whim to call them.'

These two options are really quite opposed. I want to try to find something that runs between the two of them that allows the committee to take forward a narrow ambit claim for accountability. The beginning of that is to accept that ministerial staff serve an absolutely vital political role. They are public assets. They have great public value, precisely because of their political role—not their bureaucratic or administrative roles—in helping ministers do their jobs. They are really part of the ministerial team. Ministers cannot function without them. We ought to welcome them and value them for their potential to contribute.

The second part is to recognise that, if there is a lot of power there, as with ministers they should be regulated in some way. There really needs to be some codification of professional conduct for ministerial staff, similar to the Prime Minister's code of ministerial conduct. In fact, I would take the Prime Minister's code as pretty much the spirit—and perhaps even some of the letters—for a ministerial staff code. In particular, in sections 5 and 6 of the Prime Minister's code wherever it says `minister' I would substitute `ministerial staffer'. Then I would add one other important rider that I think should really form the heart of a ministerial staffer code, which is that ministerial staff have to respect the code of the Australian Public Service, which parliament has entrenched in the Public Service Act. Ministerial staff have an important role—they are absolutely essential adjuncts to ministers and they work closely with the Public Service—but they have to respect the legislated code that parliament itself has put in for the Public Service.

When we come to the accountability provision, my contribution is to say that ministerial staff are accountable to parliament in relation to their compliance with their own code. That is really the nub of the matter. They are not necessarily accountable for the advice they provide to their ministers and they are not necessarily accountable for their own performance on the job, generally speaking, but they are certainly accountable to parliament to the extent that they are complying or not complying with the code of conduct. It is the code that forms the bridge of accountability.

Where do you put the code? You can put it in the MOP(S) Act. You can do a Stretton, whip up a paragraph and whack it in the MOP(S) Act. That is not my preferred option. I would rather see some sort of reconstruction of parliamentary responsibility that allowed parliament itself to declare the code, not to entrench it as an aspect of public law but to allow each house of parliament to start to declare resolutions on ministerial responsibility that include provision for ministerial staff. Take a leaf out of the Blair book. The first constructive thing that Blair did, when elected way back in the mid-nineties, was allow parliament itself to resolve what the terms and the content of the ministerial code should be. Do not just leave it at the discretion of the chief minister, either there or here, but make it a matter of parliamentary resolution. I think that is what each house of the Australian parliament should do as well.

I have no dissent from the content of the current Prime Minister's code, I would just like to see it as a parliamentary resolution rather than as a prime ministerial edict which is too rarely implemented. The addition that I would want to see there is this provision calling upon ministerial staffers to abide by the Public Service code in their dealings with Public Service employees.

In the brief submission that I have given you, I have suggested that the mechanism to make this really work, ideally at the maximum level, would be a ministerial standards committee in each house. That ministerial standards committee in each house would jointly have the responsibility for appointing a ministerial standards commissioner who would have the burden of investigating, in the event that there were allegations of suspect conduct, breaches of the code by ministerial staffers.

What does an investigator do? They investigate and report back to the committees. What are the sanctions then in the event that the investigator discovers a breach of the code? That is really subject to the parliamentary process where the committee can take that up with the minister and that becomes something for parliament itself to resolve. We are looking at political conduct: the political use and abuse of high political office. There is no way you can automatically work out what the appropriate sanctions are going to be. It is going to be a call about the instance that is under investigation. The investigator can report the facts but the significance of those facts is really something then for political discussion between the relevant committee and minister. The sanctions are those that apply to ministerial responsibility but, in my model, ministerial responsibility is going to be enlivened by virtue of it being subject to a parliamentary resolution, instead of just the Prime Minister's wink, nod or whim. Thank you.

CHAIR —I want to begin in relation to your concept of a ministerial standards commission. I understood you to say that both houses would have their own structure which could then appoint a single commissioner. How would you try to ensure commonality between the two given that, if it is dealing with ministers and ministerial staff, you nevertheless have a different political complexion in each chamber? The government clearly has a majority in the House of Representatives at all times. There is also this issue of the houses operating independently in terms of the administration of their own committees and who they can call and so on.

Dr Uhr —Because of the independence of each house, I would give each house the responsibility to establish such a committee, and I would give each committee a whole-of-government responsibility. I would let the parliamentary process determine which committee was going to take priority.

CHAIR —But you could end up with vastly different standards applying to the same ministers, if you like.

Dr Uhr —You would have a common text for the ministerial standards supported by both houses and each committee would be designed to monitor and implement a common set of standards. Each of them would have at their disposal the common investigator—the standards commissioner—who could investigate. It is really the investigation that I think is a crucial aspect because in most of these cases—imagine the inquiry last year—you do not really have access to the people who have the truth of the matter. What you have to do is empower an investigator with the proper authority to compel witnesses to bring forward the evidence and then report back to each committee.

CHAIR —Thank you.

Senator MOORE —Why not a joint house committee?

Dr Uhr —I think there should be capacity for the committee to meet together as one joint committee, but I would not want to take away from the power of either house to determine its own affairs. Ministers come and go. Sometimes the allocation of ministers covers a certain waterfront in the Senate, and with a reshuffle suddenly you have lost access to those ministers. I think if each house supports a common ministerial code which includes provisions for ministerial staffers, each house has full responsibility to police the waterfront of government activities. Just as the Senate, in its estimates committees, investigates the waterfront of government activities, it does not confine its investigation just to those portfolios represented in the Senate. It has direct access to the whole of government. So too should a ministerial standards committee in the Senate have direct access to the whole of government, not just that aspect of government that is currently represented by Senate ministers.

Senator MOORE —Your proposals actually look at a major overhaul of the whole operations of accountability.

Dr Uhr —You could have a modest, minimal version which is a variation on the Stretton model by whacking into the MOP(S) Act or somewhere like that a code of conduct for ministerial staff that has the crucial proviso that compels them, in their dealings with Public Service officials, to abide by the Public Service code. That is really the heart of the issue: the use and abuse of their own office when it comes to their dealings with public servants, and the degree to which they overextend the office that they have by directing public servants. You could certainly do that. I think in the last month we have had so many instances where parliament has shown itself to be unable to get ahead of the curve on ministerial responsibility. For witnesses to invite the committee to start looking into ministerial staffers as well is to invite the same sort of lacklustre performance. I would rather see parliament restructure the framework of ministerial responsibility by exercising some leadership and making the standards by which ministers are assessed back to their houses a matter of the house's public record. At the moment we are simply relying upon the Prime Minister and hoping that he will judge his own team by his own standards. That seems so weak, so paltry.

Senator MOORE —Senator Brandis is not here.

Dr Uhr —Silence is consent.

Senator MOORE —I am interested in the arguments that you have raised in a very reasoned way, looking across the board. Senator Brandis's final question to the last set of witnesses was about the intrinsic reason for having transparency. I would be really interested to hear your response to such a question.

Dr Uhr —I am rather on the Brandis side on that. I can see important reasons for the confidentiality of what happens in ministerial offices as it relates to the advice that goes to ministers. If I were a minister I would want my staff to be speaking frankly and fearlessly, and there may be a degree of confidentiality that provides a kind of precondition for that. It is only in relation their code and whatever goes into the code that I would want them to be accountable to the parliament. The crucial issue then is what goes in the code. To me, the cue to what goes in the code is exactly what the Prime Minister has put in his own code of ministerial responsibility, in sections 5 and 6. Section 5 deals with areas of conflict of interest for ministers; section 6 models the partnership between ministers and public servants. Something very similar can be done for ministerial staff. It is in relation to their compliance or failure to comply with that code that I would hold them accountable directly to parliament, not in relation to the advice that they might be giving—except to the extent that in the giving of advice or the management of advice they might be breaching their own code.

Senator MOORE —Which takes away the whole thrust of the argument about why you cannot have any regulation.

Dr Uhr —Yes. I am trying to find something between the two opposed poles.

Senator MOORE —Thank you.

Senator WATSON —Dr Uhr, your proposals have some merit, but inevitably, over time, will ministers not attempt to circumvent the sorts of rules that you have put forward? For example, we may see the emergence of what happened under the Keating regime—ministerial consultants who are outside the code of conduct that you were speaking about, as it applies to advisers. I would not be all that much against getting specialist advisers who have technical expertise. But if we implement your proposal, I can see the emergence of consultants or some other manifestation to get around the strict rules that you have put before us, good as they might be.

Dr Uhr —It really depends upon precisely what is drafted into the ministerial standards code. I would have it drafted in such a way that anybody employed by a minister to provide services to the minister is subject to the code. The code, as I say, is at its most forceful in compelling those people to abide by Public Service codes in their dealings with the Public Service. It is there that we are getting the areas of most intense conflict: in the bullying or alleged bullying of public servants by ministerial staffers. It is that area that I think is calling for the most constructive treatment by parliament. Parliament has really left it in a void. I think there is an opportunity here, now, to try to exercise some leadership and identify the standards appropriate to ministers and people working for ministers, including consultants of the type that you describe.

Senator WATSON —Thank you.

Senator MURRAY —Dr Uhr, maybe I misunderstand you, but I disagree with your fundamental premise on the basis that I read it. In the paragraph on the basic problem, as enunciated in your submission, you say in the first sentence:

Opinions differ, but in my view the most challenging problem facing the Senate Finance and Public Administration Committee is how best to regulate the political conduct of ministerial staff.

You end your paragraph on the basic problem by saying:

Rather, we are talking about the use and abuse of official position and power: ie, disputes over the appropriate political use of the power available to ministerial staff.

If you had substituted `executive' for `political' I would have agreed with you. To me the abuse of executive power is the issue. I think their political role is not the concern or interest of parliament; it is the executive role.

Dr Uhr —I accept that. It is a friendly amendment that I would take on board. They are part of the executive team, and we want to know what standards they are abiding by insofar as they are helping the executive to get on with the business of executing government. It is there that the trouble is obviously arising. At the moment, we have got just a few implications in the Prime Minister's code as to what those standards should be. We can invite the Prime Minister to elaborate and put a supplement out to his code. That would be one useful option; but, again, it is the Prime Minister who is determining and authorising that, and it is the Prime Minister who has responsibility for investigating and policing. That does not seem to be good enough. You can go to the other alternative and legally try and lock something into the MOP(S) Act. That might be reaching too far. There is something in between, and that is simply to have each house resolve what the standards are going to be for ministers and for those people working as part of the executive ministerial team and then to have that stipulated in such a way that the community can see that parliament can be called upon to investigate their compliance with that code.

Senator MURRAY —I am glad that we are in agreement. That is good. I suspect you were here when Dr Shergold gave evidence—

Dr Uhr —It seems like a week ago.

Senator MURRAY —For us, too—especially for Senator Webber, who is looking remarkably spry for someone who has been on that midnight horror.

Dr Uhr —We have all just had one.

Senator MURRAY —One thing he said absolutely appalled me, and that was his acceptance—in fact his promotion—of the view that members of the public sector only appear before Senate committees and parliament at the largess of the minister. I have three propositions. Only parliament can tax the people; therefore, parliament has the right to question anyone who has a significant role to play in the collection, spending and administration of that money. That means that nobody under the powers and standing orders of the Senate can refuse attendance. We have the power to trial and jail people if they do.

What has arisen about accountability is convention. Would you agree with me that the convention is that they are not asked policy questions. The convention is that they are not required to answer questions in certain areas. There is nothing in the Australian Constitution or the Senate powers which say that you cannot ask anybody a question and demand that they answer it. Of course, they will have the right to silence under Australian law and precedent. I return essentially to the proposition that was being addressed at the last interchange between the professor and Senator Brandis. Do you believe that all things should be open and available, unless there is a good public reason, a good practical reason, for them not to be rather than the other way around?

Dr Uhr —Yes, I accept your general orientation that there is nothing in the Constitution that stops parliamentary accountability of public officials broadly defined. There are good conventions sometimes called public interest grounds, public interest immunity, where parliament will concede that it will not push too hard. The examples that Senator Brandis had a moment ago about certain areas of government decision making that might have good reasons to remain confidential might well fall into that public interest immunity lap. General Stretton identified a whole range as well.

The issue, though, that might have supported the witness that you were referring to earlier this morning was that parliament really has done very little to declare the reach of its own accountability. It is an instance-by-instance activity. What I am suggesting here is that there is an opportunity for the committee to recommend to parliament that parliament really learn from the instances that we have had over the last 18 months and start to lay down some guidelines for ministers and the people working in the ministerial or executive arm of government.

Parliament has not done that before and so you have had a warfare of conventions, a kind of `trust me' convention from ministers that is not incompatible with responsible government: `We are the winners. We won the election. We have got the executive power. Trust us to get on and use it wisely.' And there is another set of conventions, particularly illustrated by the Senate, which is: `We've got no good reasons to trust you. We would rather make an accountability claim.' I think parliament has to take that forward and not just leave it as a kind of tussle between conventions but start to codify and lay down its own guidelines.

The executive is doing the decent thing, as you heard from Mr Podger earlier today, and released new fresh guidelines last week on ethics in government. They are only guidelines, but they are attempts by the executive to self-regulate in the areas that it is permitted to under the Public Service Act, which parliament has passed. I think now we need the companion set of regulations or guidelines coming out of parliament to help fill in the area where parliament wants to exercise its own accountabilities.

Senator MURRAY —Let me lead you across a new and interesting bridge. It might be a bridge too far, but let us try this. You heard me earlier say that anyone significant should be accountable. In a sense, the professor picked up on the same concept. He said that chiefs of staff or persons of that seniority—and that is my addition—should be the sorts of people that can be called to the committee.

You also heard me say earlier that the big three are the collection, expenditure and administration of public moneys. If you go that chief-of-staff, senior-person route for somebody who spends or administers public moneys in the broadest meaning of that, why shouldn't chiefs of staff of parliamentary parties also be accountable? The chief of staff of the Democrats or the chief of staff of the Labor Party, who is responsible for ticking off all the travel arrangements and the administrative arrangements of the staff under their control, has an executive function in that sense of spending public moneys.

Dr Uhr —I guess there are two categories or classes of officials we are now looking at. One is executive officials—ministers being the main players but ministerial staff being adjuncts to them. The issue is to what extent ministerial staff should be accountable. My claim is that they should all be accountable in relation to their compliance with the code. Others have made the claim that they should be accountable full-stop, in which case I think you are going to get a perennial battle over their political and policy influence, which will not necessarily help anybody. It will actually spoil the process rather than clarify it.

Then there is the second category, which you have just identified, which is people in receipt of public funds, and they are not necessarily confined to executive officials. There can be leaders of parties that have no executive office at the moment who might well be under an obligation of accountability to explain their use and abuse of public funds. I agree with you. Accountability generally is fuelled by the receipt of public funds and, if you can identify a public fund, a trail, I see no good reason to not go down that trail—but in relation to the management, use and abuse of those public funds, not more generally about the interests of the party.

Senator MURRAY —I asked the question deliberately because members and senators are obliged, under the much-improved accountability regime we now have, to sign off, authenticate and make accountable—make public, in many respects—their expenditure. What you spend on travelling, travel allowance, printing and stationery and so on is all public, but there is the missing area of the non-electorate staff, for which nobody is accountable. There is no sign-off, no management report, nothing.

Dr Uhr —I accept that. It strays a little from the core provisions of the MOP(S) Act, which was the initial trigger for this. But I am persuaded and I need no further persuasion from you—I accept it—that people in receipt of public funds have, on the face of it, an obligation to account for their use or abuse of those public moneys.

Senator MURRAY —I have the submission from the Department of the Prime Minister and Cabinet, which has got schedules of staff numbers from the department. It does not have a page number, unfortunately, so I cannot refer you to it but it says at the top: `Staff Numbers', `Personal Staff Government/Non Government and Electorate Staff'. It has personal staff of government at 371.6. My understanding of the estimates process has been that you can pretty well get anything you want—what levels they are at, how much money is spent and so on and so forth. It has personal staff non-government and electorate staff at 686.

It seems to me that the accountability for the way in which moneys are spent is quite strong for the government and the electorate staff but not for the personal staff non-government. So you can do one of two things, and I would ask you what you think is necessary: you can either get a certification process—a sign-off or reporting process—and go that far, or you can go as far as an estimates process and get people across the table to explain themselves.

Dr Uhr —As I mentioned before, I am persuaded by your orientation to this, and I guess the estimates model is the appropriate model. In the core cases that we are looking at here, the issue is not so much financial management as the use and abuse of executive office. I think the important task here is not simply to make a claim for accountability; the important task is to identify accountability in relation to what. I think either you can leave it to the Prime Minister to elaborate his own ministerial code and clarify it by explicitly covering ministerial staff in ways that would satisfy us or, more maturely, parliament can exercise some leadership and pass a resolution, or indeed something more firm than that, identifying precisely those standards.

It is precisely because it is not solely in relation to money that parliament needs to come clean; otherwise, there will be this endless tussle. We have seen it rehearsed in the many hours of hearings today, where people have claimed that they want to get into the minds of ministers and be able to work out what it is they are advising their staff and what they are receiving from their staff. I think in some ways that is a no-go area and we ought to be concentrating on conduct, rather than other areas of advice, and the issue is to lay down some conduct guidelines.

Senator MURRAY —My last question is this: you seem to posit two extremes—in my mind, anyway—and say that it is difficult to bring the two of them together. But I cannot see why your approach cannot sit comfortably with Major General Stretton's approach. Essentially, he is saying, `Put a small element into the act which says the following things,' and you have provided the expanded version of that. The entry into the act would simply say there should be a code of conduct which they must follow, and you have said, `Let the parliament develop that code of conduct.'

Dr Uhr —That is true, and I identify that mine is more or less compatible with his. What was missing from his that I want to keep the focus on is that we are looking at people who work for ministers and, ideally, we should be looking at a renovated, refurbished—better—framework that is more effective for ministerial accountability. He was leaving ministers out of the loop altogether and concentrating purely on MOP staff. I am trying to take the MOP staff and identify them according to the class of political actor they are, which is executive official, and try and work out some way in which parliament can clarify the standards generally for executive officials and then work out bridges of accountability over which parliament can invite executive officials to come closer.

Senator MURRAY —Thank you.

CHAIR —Dr Uhr, I want to go to a report from, I think, June of last year by the Canberra Times, where you talked about the confusion that existed within the children overboard incident. We have talked a lot today about accountability and proposals to make ministerial advisers accountable to the parliament in one form or another. However, what about addressing the issue of clarifying more particularly the roles, and the distinctions in the roles, between ministerial staffers and proposals that could be implemented to ensure that that situation does not occur again, as distinct from it occurring and then us having to deal with it subsequently?

Dr Uhr —I would take two pages out of the Blair book this time. In trying to rethinking British governance, one of the first things Blair did, constructively, was to give ministerial standards more bite by making sure they were identified as parliamentary standards and not just his standards. We have seen examples—tragic examples, in a way—of how strong the accountability process is in the UK parliament. So the first page I would take out of that is to invite parliament to do what Blair did and either explicitly support and endorse the Prime Minister's codes or come up with something better.

The second page relates to the working or professional relationship between public servants and ministerial staffers. We do have in Australia within the Public Service Act sufficient guidance for public servants; what we do not have is guidance for ministerial staffers. The British one points in the right direction by making as the core of the advice for ministerial staffers that they can do nothing to call into question the integrity of the public service. They have to respect the rights and responsibilities of public servants and to understand that they are complementary to that; they cannot override it in any way. I believe that is the second page of the Blair book that we should take out. We can add to it in ways that would more properly identify constructive assistance for ministerial staffers, but that is the place to begin in terms of role clarification—which I took to be your question.

CHAIR —I understand what you are getting at. How would we get to the point of doing that?

Dr Uhr —It has been partly done by the Prime Minister already. I really do support the so-called ministerial guidelines because sections 5 and 6 itemise for ministers the dos and don'ts. What we have is a kind of lacklustre record of investigation and policing of it, but the standards or the benchmarks are adequately identified. Section 6 identifies relationships in theory between ministers and their departmental heads in a way that identifies the complementarity. We can learn from that, adapt it and, where it says `ministers', read in `ministerial staffers'.

CHAIR —Do you see that being done perhaps by way of legislative amendment or regulation to the MOP(S) Act?

Dr Uhr —I am not necessarily in favour of a legislative solution. Look at the power that the estimates process has in terms of accountability. What supports it? A set of privilege resolutions by the Senate, where the Senate declares its hand to be an honest player. So there is nothing to stop each house resolving to be in support of a set of resolutions on ministerial standards and to leave it at that and let them modify over time.

CHAIR —One thing that this committee has been involved in—particularly Senator Murray and Senator Watson; it commenced before I became the chair or a member of this committee—is the situation where much more outsourcing and many more contracts were being entered into by departments. We know this has been a trend over recent years and, to be fair, it has occurred under governments of different political persuasions. I am speaking of contracts with outside consultants to perform a lot of tasks that previously would have been performed one way or another by the public service. Through the estimates process you could potentially obtain information about such things, but it became a little more difficult when people with the companies or the consultants who were directly involved in doing such work could not be called before the committee; also there are issues of commercial confidentiality that arise. One step that was taken by the committee and then endorsed by the Senate was the making of a Senate order which requires all departments to publish details of contracts so that at least there is a start to identifying what is happening. Might that type of approach be followed here?

Dr Uhr —Certainly; I think that has a lot going for it. It is a resolution that can be modified and amended over time. It does not require a formal act of parliament, but it is a formal action by a house of parliament in identifying what it expects of a range of executive agencies and offices. The issue in question here is for parliament to identify the appropriate benchmarks, not just to say that it has a range of people over whom it wants to exercise a claim of accountability. The issue is trying to constructively add to government by identifying the appropriate benchmarks so that parliament can back off and leave it to these people to manage their own affairs by knowing what the limits are. At the moment the only limits they have are a kind of a wink and a nod from the prime ministerial code. If I were a ministerial staffer, I would love it.

CHAIR —One of the things that does exist in other countries' jurisdictions is ethics support for political staff—ethics councils and advisory commissions and so on. We do not have that system in Australia. Do you have any views about that?

Dr Uhr —I have looked at the Queensland submission from the integrity commissioner. That picks up some of the advisory role by having an official who can act as a sounding board for executive officers who are uncertain about whether they are straying from the identified code. The ministerial standards commissioner that I have identified could have that role as well. That is not to say that the Prime Minister's department cannot have an officer who is also responsible for advising the Prime Minister particularly on that. But there is nothing to stop parliament itself identifying somebody like a ministerial standards commissioner who could proactively assist executive officials by offering advice to them, where necessary, and reporting back on a periodic basis to the committee to say, `Things are in better shape than they were when I first arrived.' That would help parliament and it would help the community as well.

CHAIR —There being no further questions, Dr Uhr, we thank you for your evidence and for being prepared to wait so long today to give it. I hope that you have taken the opportunity to listen to the questions and answers and the debate and that it has been of some benefit.

Dr Uhr —It has been a robust day, and I thank you.

[4.47 p.m.]