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FINANCE AND PUBLIC ADMINISTRATION REFERENCES COMMITTEE
02/09/2003
Inquiry into members of parliament staff

CHAIR —Welcome to the hearing. I apologise for the delay in your appearance, but these things do happen from time to time. You have been provided with advice on the protections and obligations that apply to witnesses appearing before parliamentary committees and the parliamentary privilege that attaches thereto. We prefer our hearings to be in public, but if there are issues you wish to raise in camera we would consider such a request. Do you have any comments to make about the capacity in which you appear today?

Prof. Weller —I am appearing as a person who has had an interest in such subjects over some 25 years.

CHAIR —We have received your submission, and we appreciate that. Would you like to make some opening comments before we proceed to questions?

Prof. Weller —I would like to make two brief comments. The first point is that our general proposition would be that we should design some sort of code of conduct for ministerial staff—a code of conduct which makes it clear what their responsibilities are and how they relate to the public service. At the moment we have codes of conduct for public servants and for ministers, and we have a group in the middle for whom there is no clear indication of where they stand. Their role has changed quite dramatically over the last 25 years. The cost is now some $37 million, if you work it out—there are 370 of them. They play a substantial role and the theories which underlay the MOP(S) Act and their appointment at the time of the Whitlam government, when they were first appointed, do not seem to have kept up with the numbers, experience and influence of, ministerial staff who now are very substantial actors in the political process—and quite properly. The argument is not whether they should exist or not but what should the code of conduct be? How should we understand what their roles are? Particularly as the Prime Minister noted yesterday that they have often ceased to be public servants. There are, more and more, people being appointed by ministers and coming from outside the public service, so they come without any experience of the public service and the different roles that the public servants and the ministerial staff should play.

The second point is the question of accountability. We know that whatever the theory says about everything that goes to a minister's office is deemed to be known by the minister or every request that comes from a minister's office is deemed to be directly from the minister, that is no longer true. We know that much of the responsibility is, in practice, delegated. We know that much of the time ministerial staff are anticipating what ministers may want in the information that they are trying to collect. It is of course impossible that 30 people in a prime minister's office are all working hard and collecting information and the prime minister knows everything that all of them know. There would be no point having 30 people there if that were actually true. You can quote a former adviser to a prime minister suggesting that it is a bit like a coffee filter—a vast amount is poured in one end and is dripped out the other end on the basis of what the prime minister requires at any given moment. We also know that on various occasions information has not been passed on and this at different times has led to resignations of ministerial staff. We know that the system as it is devised under MOPS does not work perfectly.

It seems that we have reached a situation, when we talk about accountability, where there is a need for some sort of accountability for this large number of people on the public purse with somewhat ill-defined responsibilities. Our proposition is that, when there is an inquiry into particular events, it is appropriate that the chief of staff, the head of the office or the principal policy adviser appears before such committees as this. Not to explain what advice was given to the minister or the prime minister—heads of departments are already absolved from that; it is a matter of policy and they do not respond to those questions—but at least to explain what the management was, what happened to the papers, what happened to the information that came into the office and where it went after it got to the office so that there is some sort of management accountability. This would extend the accountability that has developed in relation to the public service over the last 20 to 25 years to what has, since that time, been a new growth area in the functions of executive government—the ministerial staff.

We are suggesting a degree of increased accountability in ministerial offices personified probably by the chief of staff who is responsible for the management of the office to allow parliament to exercise some sort of scrutiny. It is not an open slather but nor is it saying that the system works perfectly at the moment, because the evidence suggests over the last 10 or so years that it does not.

Ms Tiernan —The other major thrust of our submission, I suppose, was that while the accountability issue is a very important one and one that people have become very concerned about, fundamentally a lot of the issues and anxieties are about the management of the staff. A lot of the points that we made in the submission are about the lack of management in what is now a substantial and complex organisation of 372 people. While we acknowledge that the accountability arrangements are crucial, here is a system that has evolved—it has not been designed. Therefore, you are getting problems, difficulties and confusion because of the lack of design that is implicit to the system. A lot of the assumptions and the beliefs on which the system is operating have become outdated by practice, and that has been apparent in a lot of the evidence this morning.

The staff need to be managed. Any organisation needs an appropriate set of governance arrangements—a big complex one working in a political way certainly needs to have those arrangements. The current system makes ministers responsible for that management—creating an additional burden on ministers to do something they do not have the time to do. In practice, ministers are delegating that authority to their chiefs of staff, and hence our recommendation regarding the chiefs of staff—often people of substantial experience and equivalent to first assistant secretaries in the Public Service in terms of their remuneration and the levels of responsibility that they are exercising. So they are not 25 years old and inexperienced, they are people to whom you could appropriately delegate that authority and, in practice, that is happening anyway.

A lot of the issues that we were emphasising in the submission were about the need for management, the need for a more robust system of management of the ministerial staff. The other point that we made a number of times in the submission is the lack of transparency about the system. I am doing a significant study at the moment of ministerial staffing arrangements under the Howard government, and I learned more this morning from the department of finance submission than I have been able to find out in a lot of the research that I have done so far. So transparency is a crucial issue that needs to be looked at as well.

CHAIR —Thank you. If an accountability mechanism was established whereby chiefs of staff and ministerial advisers were required to appear before committees in specific instances—I think that is what you were getting at—how do we ensure that such a procedure is not perceived to remove the responsibility of the minister?

Prof. Weller —It seems to me that you are perceiving to remove something which only half exists at the moment. We have had a number of occasions where the buck has actually stopped at the ministerial office. Mr Anderson had two members of his staff resign because information on road funding did not get passed on to the minister. Likewise on the travel rorts situation, Mr Grahame Morris resigned for similar sorts of reasons—information was not passed on. So I think the notion that the minister is responsible for the office is akin to an old-fashioned notion that the minister is responsible for everything that goes on in his or her department. That never actually existed, although it is technically at the core of ministerial responsibility. The minister answers for his or her department. The minister explains to parliament the shortcomings that might occur within the department, but the minister does not resign over it and is not personally responsible for it.

Senator BRANDIS —Isn't there a very clear distinction between the matters concerning which a minister has discussions with his public servants and the matters concerning which a minister might have discussions with his advisers? In particular, one would not expect a minister to be having discussions with public servants about politics.

Prof. Weller —No.

Senator BRANDIS —But that is exactly what a minister would be expected to be having discussions with his advisers about—political strategies, tactics and political implications. Not just a policy but the political approach to issues of the day.

Prof. Weller —Yes.

Senator BRANDIS —You seem to be agreeing with me. Don't you think that suggests a fundamental distinction between the extent to which there ought to be accountability between the department and ministerial staff?

Prof. Weller —I hope I was very careful in saying that the accountability should be for what happened—the paperwork coming in, the advice that was coming in—not for the conversations which were being held with the minister.

Senator BRANDIS —I understand the distinction of course, but I suggest to you that that is a distinction that might be more vivid in theory that in practice. Let me give you an example: let us say that an issue arose as to whether or not a minister was aware of a fact at a given point in time. If members of the ministerial staff were answerable to parliamentary committees, could they not be asked, `Did you have a discussion on this topic with the minister on or before such and such a date or did you convey a piece of information to the minister on or before such and such a date?' I would not have thought that was a question about policy; it would be a question about whether an event had or had not happened.

Prof. Weller —Yes.

Senator BRANDIS —And yet I can readily imagine circumstances in which, in the rush of political events, it would be almost impossible to have a free and unconstrained discussion with a minister about an emerging political circumstance if the advisers felt they were under the constraint that they might, at some time in the future, be required to expose publicly the fact of discussions having happened. Can you comment on that?

Prof. Weller —It is a fair comment. The question seems to me to be if the department, for instance, has provided a piece of information to the adviser and the department is working on the assumption—and this is the old constitutional myth, as I would call it—that informing the adviser is the same as informing the minister and if you then reach a situation in which the minister states, `I was not told', then somewhere there is a problem. The problem exists that the advice was not passed on to the minister despite the assumption that the minister knows because the staff is told. If they are the facts, then it seems to me not unreasonable that a parliamentary committee—not on a fishing expedition but investigating a particular set of propositions—

Senator BRANDIS —But parliamentary committees are always going to be on fishing expeditions because the opposition quite properly is going to try and explore areas of vulnerability of the government. That is quite proper.

CHAIR —Senator Brandis, let Professor Weller answer the question.

Prof. Weller —But there is a difference between a fishing expedition that examines what ministerial staff have been doing and a fishing expedition which looks at a particular case and asking what sort of evidence might have been presented in that sort of case. Those are the ones which, again, I hope I was quite careful in trying to express what I referred to. Otherwise you end up with what I have referred to elsewhere as a black hole. It goes into the minister's office, the minister states the minister did not know and there is no accountability anywhere for the sorts of things that happened. That is the black hole I am interested in trying to close when I talk about accountability. I am not going to suggest it is a perfect solution, but I am suggesting it is possible to say the minister was or was not told a piece of information which has come from the department.

Senator BRANDIS —I would like to finish on this point, Chair. Professor Weller, the problem is the course you are recommending seems to me, as a matter of commonsense and practical politics, more likely to turn the black hole into a bottomless pit.

Prof. Weller —I thought black holes were bottomless pits.

Senator BRANDIS —Touch—a black and bottomless pit. If I can use an example that is very pertinent to us, last year you wrote to book about the children overboard inquiry called Don't tell the Prime Minister, which I interpolate to say you published it before the evidence had finished. The gravamen of your thesis, as I understood it, was that there was something a bit odd about the Prime Minister not having been informed about certain alleged events.

If ministerial advisers were operating under the constraint that they never knew whether or not they might be cross-examined by a parliamentary committee about what they told ministers or what information they conveyed to ministers on a given time—and these conversations happen in real time before you can anticipate what the political implications of them will be—don't you think it more likely that ministers would be told less or the information would be more guarded, so the very vice against which you warned in your essay would be exacerbated?

Prof. Weller —I would guess that the opposite would actually happen. Let me make two points about that, since you have brought it up. We know from the evidence that was available when I wrote the book—and there was not a lot more that came out—that a number of advisers who spoke either to the ministers or to the Prime Minister had been informed of the doubts, at the very least, about the incident and certainly about the incorrectness of the photographs. The Prime Minister assures us that he did not know. The only reasonable assumption you can make is that he was not told, even by people who knew. And he says that, had he known, he would of course have corrected the public statement. The only reasonable proposition was that, in an election period, people chose not to put the Prime Minister in a position where he had to stand up publicly and say `Sorry, I got it wrong.'

I have been assured by people since then that on any occasion the minister or Prime Minister was wrong and these people found out he was wrong they would almost run to tell him he was wrong —and they may do in that sort of period. The only evidence that we had, which your committee collected, was to suggest that they had not run to tell him that he was wrong; they had actually left it until after the event. I think we would actually be in a position in which, knowing that they might be called before a committee, they would be more likely to abide by the constitutional notion that telling me is the same as telling the Prime Minister. But that of course is something which becomes supposition to be tested if it ever happens.

Senator BRANDIS —Quite. I think one of the human dynamics of this—

CHAIR —Is this a question, Senator Brandis?

Senator BRANDIS —Yes, it is. One of the human dynamics of this is that ministerial staff, because of the different function they have from senior public servants, do feel a quite proper concern to protect the interests of their minister, just as opposition staff members would feel a corresponding imperative to protect the politician they serve—public servants do not, or should not.

Prof. Weller —It is precisely because they feel the desire to protect the Prime Minister or their minister and are therefore not passing on information that the idea that telling the staff is telling the minister is not a viable proposition—on your own explanation.

Senator BRANDIS —But I did not embrace that theory. I understand the theory, but I have not embraced it myself; I just invited you to comment on the consequences.

Prof. Weller —If you embrace the notion that telling a staffer is telling a minister, the notion that they are attempting to protect the minister suggests a flaw in the system which is fairly substantial. It seems to me that that is the sort of flaw that we need to try to somehow close—the notion that something comes back after the event saying, `Not seen by the minister.'

Senator BRANDIS —It is only a flaw depending on your definition, Professor. If your definition, or the metaphor you use, is that the ministerial staff are not the minister's alter ego but a filter, from a constitutional point of view, what is conceptually wrong with the idea that staff can act as a filter for information?

Prof. Weller —I do not have anything wrong with the notion, because staff must and will act as a filter. As I say, the Prime Minister has 40 people in his office. They must act as a filter for information. But if they are acting as a filter for information, you cannot take the proposition that telling a staff member is the same as telling the minister. Therefore I would argue that we have to have some sort of accountability that goes with it when they choose to act as a filter.

Senator BRANDIS —I can understand why the last proposition could follow from the two previous propositions, but I am not sure why it necessarily does. Let us take transparency as an absolute value—which would seem to be close to what Ms Tiernan was saying. I dispute entirely that transparency is an absolute value.

Prof. Weller —You said earlier that, inevitably, we have some sense of delegation. It seems to me that if you delegate you create an accountability for that which you have delegated. If you are delegating to the staff the right to act as a filter they should be accountable. If that means material is consequently not coming to the minister, because of that delegation and that filter, it seems to me they are therefore accountable for that filtering.

Senator BRANDIS —Dr Shergold's solution to that conundrum was to say that the minister is responsible at the political level and can be punished at the political level—as, arguably, Mr Reith was—for a delegation which operates as a constraint on the passage upward of information. The minister might be politically culpable, and that is the sanction. You do not need the additional mechanism of requiring the kind of accountability by ministerial staff to parliamentary committees which is appropriate in the case of public servants.

Prof. Weller —One argument is that the system works. But I do not think, from looking at the system and the problems that have occurred in the last 10 to 15 years, that it does work, because I do not think the other side of the proposition—which is that ministerial staff with delegated authority are acting with the minister's knowledge—is sustainable either.

Senator BRANDIS —It is what a lawyer might call a deemed liability. If you delegate and, as it were, turn a blind eye, you are deemed to be liable for that which you do not know, whether or not you in fact know it. But the minister pays the price in the political marketplace.

Prof. Weller —The other is plausible deniability. We want to be able to explain that we know so much but not more in certain circumstances. There are two ways of looking at the same question. My question is: do we make people accountable for what has been delegated to them de facto, if not de jure?

Senator BRANDIS —I think even the word `accountable' is one of those words, like `transparency', that tends to evoke a warm response in intelligent people. A more appropriate word might be `responsible', rather than `accountable'. Responsibility can have implications other than disclosure. It might, for example, mean that somebody is punished at the political level, as Mr Reith arguably was, albeit without an accountability process of the kind that you have described. That might be the more appropriate solution.

Prof. Weller —I am not sure Mr Reith's punishment was that onerous.

Senator BRANDIS —His reputation was played fast and loose with.

Prof. Weller —There are political sanctions.

Senator BRANDIS —That is my point.

Prof. Weller —I accept that. But it seems to me that there should also be some administrative procedures by which we maintain some sort of accountability for what are fundamentally important actions by a group of people who did not exist 25 years ago. Even at the time of the MOP(S) Act, if you looked at the Fraser government the Prime Minister's office was fairly strong but the majority of others did not even have press secretaries. We hear a lot about the Prime Minister's office. There has been growth in all the other offices as well, and the people do not have the same sort of profile but do have the same sort of influence within that portfolio.

Senator BRANDIS —I will finish on this point, Professor Weller.

CHAIR —Order! This started as a short interruption to my question—

Senator CARR —Very rude too, I might say.

CHAIR —but I have allowed you to continue.

Senator BRANDIS —It has been very illuminating—at least, it has to me.

CHAIR —Please ask questions rather than make points.

Senator BRANDIS —I will finish on this. The proposition I put to you, Professor Weller, is that the series of propositions you just expressed only follows if you think that the political sanctions, as they currently exist, are insufficient. Do you agree with that?

Prof. Weller —No, I do not agree with that, because I think there is also a proposition that an understanding and tracing of the administrative process is desirable when particular investigations are taking place.

Senator BRANDIS —So you think it is intrinsically desirable?

Prof. Weller —I think it is intrinsically desirable. I think what happened in your inquiry last year is that, basically, you hit the ministerial staff, and there were no questions there. It was a very interesting inquiry. Some of the answers which it would have been useful to know were intrinsically impossible to find. I do not want to know who gave advice to whom or who gave the political advice, although we got some of that from the affidavits which came out to the Bryant inquiry. But it does seem to be worthwhile for people to say, `I got this information and this is what I did with it.' I think if we are going to question public servants then ministerial staff, who after all are payed for by the taxpayer, should also be publicly answerable for their actions.

CHAIR —Senator Murray, I think you had some questions.

Senator MURRAY —I was just seeking a short interruption of an exceptionally short interruption from Senator Brandis. I have lost track of whom he interrupted, it was so long ago! My short interruption was to be this: the weakness in the discourse between the two of you, and what was missing in your answers, Professor Weller, was that you cannot test the liability and, therefore, you cannot impose the political punishment if you cannot get at the people who can tell you what the liability was. That is where the whole thing falls down. You can scoff at accountability all you like. Accountability means pitching up here and answering the questions, which they did not do. The minister was not punished, and neither was the Prime Minister punished.

Prof. Weller —We do not know who said what to whom. That is the answer. There have been occasions when ministerial staff have been held accountable but not necessarily through the process of these committees. There are other mechanisms, and sometimes it is the political process which catches up with them.

Senator MURRAY —No, the reverse applies: if those people had been questioned and it had been established that the minister and Prime Minister were truly not guilty of anything, Mr Reith might still have his job here in the parliament.

Prof. Weller —I think that, by the time these had come, he had already chosen to go.

Senator MURRAY —That was one short interruption. I have one other question.

CHAIR —Maybe something good did come out of that inquiry!

Senator MURRAY —One of the problems we have not approached here is the assumption that the minister answering for his department—both the Public Service and his personal offices—is present to answer the questions. In fact, in the Senate, as the house of accountability, that is often not so. You have a minister at the table who is not the minister responsible, who does not know how the office works and who might know some or all of the personalities but probably more on a social or occasional basis. So you get that extra degree of separation. I think Ms Tiernan was alluding to that earlier: the difficulty with accountability is the degrees of separation from the person who actioned the circumstance. In those situations it would seem to me to reinforce your idea that senior personal advisers—not necessarily chiefs of staff; probably those within the category of seniority—should front up because there is no-one else. There is not the minister who was there and there is not anyone else who can answer. What do you say to that?

Ms Tiernan —I think you can expect that that will be resisted. People will not want to front up and answer those kinds of questions. We suggested the chief because the chief is a senior person—the most senior person in the office. I am not sure why you would say it should not be the chief but someone else.

Senator MURRAY —I did not say it should not be the chief. I would not necessarily restrict it to the chief; I would restrict it to senior advisers—in the same way as we do not restrict the Public Service to the secretary; you have the first assistant secretary and the second assistant secretary and other secretaries. There is a certain level of people who come here.

Prof. Weller —It would not have to be the chief of staff. We mentioned it because it was an identifiable person in each office who might therefore be conscious of the fact that he or she could be called.

Senator MURRAY —I do not think it is so much about that. I would rather you focus on this issue of a degree of separation because, more commonly than not, we have a minister representing a minister here, not the minister responsible.

Prof. Weller —The decision would obviously have to be made by the parliament—that ministerial chiefs of staff could appear before Senate committees—which raises some interesting interjurisdictional or inter-house issues. But there are no restrictions on public servants appearing. Because the Prime Minister is in the lower house, his secretary still appears before Senate committees. It therefore does not seem to me to be impossible to make the same sort of suggestion about ministers who are in the lower house.

Senator MURRAY —I am not sure you have understood my question. Let me try one last time. You have indicated that one of the problems with the accountability process is that key participants in that process are not able to be made accountable.

Prof. Weller —Yes.

Senator MURRAY —I am asking the question: do you consider that, where the minister directly responsible is not available to be made accountable—which is more frequently the case than not—the problem is made worse by that circumstance?

Prof. Weller —Yes. I was assuming that I agreed with you and then moved on to the next point, which is that it is then a question of whether or not the chiefs of staff of ministers in the House of Representatives could be called before a Senate inquiry, which is the case with departments, although, of course, there is a ministerial representative there. So in a sense I was agreeing with you and moving on to the next point.

Senator MURRAY —Thank you.

Senator CARR —If I could take you back to your submission, this morning we have heard at length the views expressed by the head of the Department of the Prime Minister and Cabinet, Dr Shergold, that in essence things are pretty good and there are no real problems at the moment. I did not expect him to say much else but, nevertheless, he did say it. He also said that he thought that the critical ingredient to the success of this great mixture is the capacity to have complementary but different roles for the ministerial advisers and senior public servants. He then went on to say that the critical issue here is one of trust. In your submission you point to your research work. Ms Tiernan and you have presumably undertaken research work on the two key points about the confusion of roles and the level of trust that indicates that the system is not working. You say:

Our research has identified a pervasive atmosphere of uncertainty and mistrust in the relationship between ministers and the public service ...

What is the basis for that statement?

Prof. Weller —The basis for that statement is a book I wrote a couple of years ago on secretaries of departments. I think we perhaps overstate it there, but there is a certain unease which has certainly developed—

Senator BRANDIS —Was that document—

CHAIR —Order, Senator Brandis!

Senator CARR —Let him finish the question. You will have plenty of chances to give him a hard time.

Prof. Weller —over the last decade. It is partly connected with contracts; certainly, if you talk to every secretary of departments, it is about the growth of ministerial staff; and it is partly about the greater accountability. So there is a range of issues which has made what was once a very cosy relationship a lot less cosy, a lot more competitive and a lot more contested. There is an unease which I think you can trace quite a long way back. Contracts came in in 1993-94, so it was at least then, but people were being shifted around some time before that. It is a combination of factors, which I think is the evolving world. The days in which the minister spoke to no-one but the heads of departments and very few others, which existed in the sixties, have long gone.

The second point is that this is not a universal factor. You can find secretaries of departments who get on extremely well with ministers of either side and you can find the same secretaries do not get on with other ministers, equally of either side. So you have a rise and fall of relationships. Somebody said to me once, `The relationship between a minister and a permanent secretary or a departmental head is like a horse and rabbit pie: one horse, one rabbit. The problem is in deciding which is which.' At times the minister is dominant and at times the public servant is the more dominant of the two forces in those sorts of cases. It varies. McEwen and others were extraordinarily dominant ministers, Whitlam was an extraordinarily dominant minister, and I will not name the rabbits but there were some of them, too, at different times, and everyone could probably mention them.

Senator BRANDIS —I think that during the Whitlam government some of those public servants felt that they were bunnies.

Prof. Weller —I do not think they felt that they were in the spotlight that much.

CHAIR —Senator Brandis, you might concentrate on the hare! Stop interrupting.

Prof. Weller —I have completely lost my train of thought.

Senator MOORE —I might step in there.

Prof. Weller —Step in and help.

CHAIR —Could you please not interrupt, Senator Brandis.

Ms Tiernan —I have similar findings in my interview data from my study: people being unsure about what is going to happen if they do not do what a ministerial adviser asks them to do or people being concerned that what they are saying is being misconstrued. It is around the multiplication of channels into the department. It goes to the question of experience that was raised this morning. Dr Watt said that it is mostly SES people who are dealing with ministerial offices. The change seems to have been in the last five to six years and, probably starting from the Keating government, it is coming in at lower levels of the bureaucracy where people are not so sure—not as au fait—about dealing with ministerial offices. It makes them very nervous.

Prof. Weller —When you get rung up and told, `I want this now,' it is all very well to say, `Go to the secretary and complain that you are not being properly dealt with or your issues are not being addressed adequately,' but it does make the middle ranking SES people comparatively nervous about what is happening in those sorts of circumstances. Again, I can trace back to staffers who have done that over the last 10 years. It is part of this notion of functions and precisely what the role is. You do not have to go to the extent of saying, `I am your boss and I am your boss's boss,' which was of course the CMI incident, but there are other cases. I have talked to staff who have said that they used to pick up the phone and yell down the phone, `I want this now. You are being too slow.' Does the minister know that this is happening? Some of the time they may; some of the time they may not.

Senator CARR —Would you concur that there is this climate of fear that I speak of in some quarters?

Prof. Weller —I think `climate of fear' is fairly extensively overstating it. Of all the people I have come across, none of them were scared of their minister, although several of them said that several of their colleagues were. It is all second-hand and that is the problem with the discussion. They say, `I am fine—'

Senator CARR —We have a similar problem with universities: one university is terrific but everyone else's is in crisis. But the evidence that is coming through to me suggests that there may well be a culture of compliance or self-censorship developing. Would you agree with that conclusion or contention?

Prof. Weller —In my book on the children overboard issue, I commented that there was a growing emphasis on a willingness to provide the evidence rather than to check the evidence. I argued that there was a decline in the necessary scepticism that goes with frank and fearless—if you want to use that term—advice. The rush in that instance was to say, `Here is a story which has been passed on by phone. How can we find evidence that backs it up,' when they were not looking for evidence—which was equally there, saying, `This did not happen at all.' It is a climate to some extent of a bias towards action, if you like, but I would not like to turn it into suggesting that that is what is delivered. Communication has got so fast now that things can move along the line without being checked in the way that they used to be. Mobile phones, faxes and emails mean that things whip along—

Ms Tiernan —Without the kind of quality checking that would have once happened—that is, going up through a hierarchical arrangement.

Senator CARR —Have you come across this bias for action before?

Prof. Weller —It is a new expression. I have heard it in effect many times before: people saying, `We are not worried so much about record keeping; we are worried about getting things done. That is what we are going to be judged on.' It is the `can do' generation. The Thatcher line `Are they one of us?' did not mean, `Are they conservatives?'; it meant, `Do they have a bias for getting things done very quickly without the necessary advice?'

Senator CARR —Do you think that that is evident in the Australian Public Service?

Prof. Weller —I think that there has been a push more and more. It is pushed towards outputs—that is not a bad thing in itself—and towards getting some quick results. That is part of the notion of being responsive to the government. I think the balancing act there is being responsive and sceptical. This is not saying that the government is wrong or that we are not doing what the government wants. There were questions raised this morning about the best way to do it. Senator Murray asked a question about what a public servant would do if they thought the government was wrong in a commitment. The answer I would have received from two or three senior public servants in those conditions is that they would have said to the minister, in effect—I am sure they would not have said it in these words—'If you want to go to hell, don't go to hell in such a bloody silly way; I will help you get there in a way which protects you.' So on a number of occasions like that the public servant would have said, `If that is what you want to do, there are better ways of doing it than the way you are proposing.' That is not saying, `We aren't going to do it.' It is saying that there are good and bad ways of achieving that sort of objective.

Ms Tiernan —Perhaps that is where some of the uncertainty is: how far to push and how often to push something, rather than anything else.

Senator CARR —Finally I turn to the issue of remedial action. I take it from what you are saying that you believe the current situation is not satisfactory.

Prof. Weller —Yes.

Ms Tiernan —Yes. I think the current system does not serve ministers as well as it might.

Senator CARR —I have referred to Dr Don Russell's submission, which runs counter to the proposition you are putting to us in terms of the new regulatory regime that you are suggesting is required. Have you had a look at that submission?

Prof. Weller —Yes.

Ms Tiernan —Yes, a quick look.

Senator CARR —Can you give me your response to it? What would be your critique of this model?

Ms Tiernan —How do you critique someone who has worked in the Prime Minister's office?

CHAIR —Just be fearless and frank.

Ms Tiernan —My understanding of what Don Russell has said, and I have heard his public comments on other areas, is that he has suggested the head of the Prime Minister's office plays an important role in setting the tone across government and that that person is the notional head of the staff. So I do not think that is too different from what we have suggested. I think he has been quite clear that the responsibility for managing the system needs to stay with the political executive. I do not particularly have a problem with that. I think that is a more practical approach to the extent that you will get more cooperation if people feel they are not ceding something that they will lose control of, which I think are some of the concerns that Senator Brandis was expressing—concerns about spending your whole life in committees answering questions about things that are not material. I do not have a particular problem with Don Russell's proposals there. He talked about some of the same issues as we did, such as the need to train people, the need to be clear and the need for a demarcation of roles.

Senator CARR —Those are all the points of agreement. I am interested in the points of disagreement and, in particular, where he says that there is no need for a code of practice because, in effect, you are legitimising the separation of responsibility from the minister.

Ms Tiernan —Isn't he saying that the code of how we want things to be done around here is for the Prime Minister and the Prime Minister's chief of staff to enunciate?

Senator CARR —He says all that, but he does explicitly say that it would not be appropriate to have codes or, for that matter, for advisers to appear before parliamentary committees unless the minister gave them up by saying that they have not actually fulfilled their functions. He works on a number of assumptions; namely, that advice to the office is in fact advice to the minister and that ministers will act consistently with their responsibilities to parliament. Where that does not happen his proposition is that, in essence, the minister has the capacity to cut adrift a wayward staff member. He takes the view that the minister cannot reasonably be presumed to know everything that goes on his office, given that he has a staff of 30 or thereabouts, which is essentially your point. He goes on to say, however, that the responsibility in a political system such as ours lies with the minister. What do you say to that?

Prof. Weller —In theory, it is right. I would not want to put words into his mouth, but he will probably tell you that anything he knew the Prime Minister knew—and it may or may not have been true; they had a very close working relationship.

Senator CARR —The point on that occasion is that it is only when the Prime Minister says it is not true that it makes a difference.

Prof. Weller —I am sorry, you have lost me.

Senator CARR —What he is saying is that if the minister says, `I was not informed'—as happened with Howard in the `children overboard' affair—then those staff would appear before parliamentary committees.

Prof. Weller —Yes, but that is actually asking for a big political decision from somebody to cut them loose, which has happened. It has happened in the past. I would actually prefer not to leave everything exclusively in the executive's hands in those sorts of circumstances.

Senator CARR —That is the point. We have to grapple with this issue.

Prof. Weller —I think I am coming back to the notion. Intrinsically, that it is useful to know that these sorts of things happen—not easy, but intrinsically desirable if there is to be an investigation.

Senator CARR —Surely it happens where the minister says it has happened or, more to the point, where the minister says, `I was not advised.'

Prof. Weller —Yes, but the moment the minister says, `I was not advised,' you cannot hear them and you cannot see them.

Senator CARR —Under this proposal, you automatically get the staff member to appear. It would therefore be very serious for a minister to say, `I'm cutting loose my chief of staff.'

Prof. Weller —Yes.

Senator CARR —What is wrong with that?

Ms Tiernan —It might give you an issue of recruitment and retention, I would suggest.

Senator CARR —That might be the point.

Prof. Weller —I think it is an alternative way of skinning the cat. I do not think there is only one way of solving these sorts of problems.

Senator CARR —The reason I am asking you these questions is that, as I said before, I am personally of the view—my colleagues may well have a different view, and I suspect they do—that these issues are seriously matters for judgment.

CHAIR —Major General Stretton will be interested to hear of this.

Senator CARR —I would like to know whether, in your judgment, the proposals that Dr Russell has put to this committee are workable. That is why I am asking you. If you cannot answer—because I have sprung this on you—you may wish to take this on notice and come back to us with an examination of the detail of the submission.

Prof. Weller —It is possibly workable.

Ms Tiernan —There would be a bad atmosphere in the office, though, if that were the case.

Senator CARR —But that is exactly the point.

Prof. Weller —But that says the atmosphere has gone anyway.

Senator CARR —That is exactly the point. If you do not have the confidence of your minister, you should not be there.

Ms Tiernan —But if you do not have the confidence of your minister, you probably are not there because you have probably been cut adrift already—

Senator CARR —That is the point. I am saying—

Ms Tiernan —and then your responsibility to appear is negated.

Senator CARR —All I am saying is that the evidence would suggest that, under the current arrangements, a minister can simply say, `I wasn't told; I'm not accountable,' which is the thesis you are putting to us.

Prof. Weller —And indeed can then promote all the people who did not tell him.

Senator CARR —And that is exactly what happened with Ross Hampton—promoted to a more senior position, you could say—and a whole series of other people.

Ms Tiernan —The system does not preclude that.

Senator CARR —How can we fix it?

Prof. Weller —That is one way; our way is another way. I am sure you can come up with a third.

Senator WATSON —I am having a bit of trouble accepting some of your alleged practices, Professor—for example, this climate of fear from advisers going into the middle ranks of public servants. I just do not accept that. The usual practice is either to go through the head of the department for the more serious issues or to have a parliamentary liaison officer who takes the issue and directs the question to the relevant official. If it is highly sensitive, it goes up; maybe if it is purely administrative, it can go down. But it still comes back through the parliamentary liaison person or the top. I am talking about the federal level.

Ms Tiernan —We are talking about the federal level.

Senator WATSON —That is why I have a lot of difficulty about this climate of fear and almost intimation that you are expecting.

Ms Tiernan —The telephone and email—

Senator WATSON —That is not the way we operate.

Prof. Weller —Certainly—

Senator WATSON —Maybe in a state jurisdiction—

CHAIR —Order! It is important that only one person try to speak at a time, for the purposes of Hansard. I think you have asked the question, Senator Watson. Would you let the witness answer?

Prof. Weller —With respect, Senator, it would be very nice if things went through the head of the department or the liaison officer, but—certainly from the people I talk to around the Public Service—that is no longer true. Some of the evidence we heard this morning was that people would ring around—certainly all around the senior executive service from the minister's office and increasingly down into the lower ranks—and a person would get a phone call saying that they were the relevant person and that the minister wanted to know such and such.

There were neat days when everything did go through very careful channels. That is no longer true. If you look at the evidence in the CMI inquiry last year, the press secretary rang all around the defence department asking for evidence to back up the story which they had received and occasionally bullied on the phone some of the people whom he was asking for evidence. There were comments such as `I'm your boss and I'm your boss's boss so you'd better get this back to me'. This is not the polite way of going through a departmental liaison officer. Things like this may be done with the authority of the minister; they may not be. But it is certainly no longer true that we have things done through neat channels anymore. That is what makes people down the line nervous about the way that people are treating them.

Ms Tiernan —That is where you get problems—the immediacy and proximity of having people in the minister's office who can make quick phone calls, and telephone and email are the instruments of choice.

Prof. Weller —Do not get me wrong: many ministers' offices work very smoothly with the departments and people are perfectly happy. This is not saying that all ministerial staff behave in an improper way or even that a majority do or even that a large minority do. But some do.

Senator WATSON —But if we accept what you say, that comes back as a reflection on the departmental secretary for not doing his job. If I were one of those people, I would immediately report it to the departmental secretary and expect some action.

Prof. Weller —That is the theory. But people are also conscious that, if you are a junior SES officer and you start complaining to the secretary about the minister's office and the secretary starts talking to the minister about it, your own future may have question marks put against it at the same time. There is a dual tension which exists in many of those circumstances.

Ms Tiernan —That is a very important point: the extent to which ministerial officers are involved in the performance appraisal of departments. If you look in departmental annual reports, the satisfaction of the minister and his or her office with the service being provided by that part of the department is one of the performance indicators. People are very conscious of that. If I do not show myself as being able to handle these kinds of interactions, my performance might be called into question.

Senator WATSON —You speak of inadequacies, inherent dangers and the need for a clear framework that recognises the challenges and the difficulties of working with the minister. You talk about the need for transparency for the ministerial staff system and about clear parameters. But I thought Dr Shergold outlined to us very clearly those parameters this morning. That tended to be supported by the next witness. I am looking to you for more solutions than calling for transparency and clear parameters, which I believe appear to be there—whether they are working or not is another issue.

Prof. Weller —The principle parameter is in the ministerial guidelines.

Senator WATSON —Yes, but I am looking for the solutions to the overall problem.

Prof. Weller —It talks about the fact that it may not exercise executive authority. This morning you got a bit into this circular idea that they can never do anything improper because they cannot exercise executive authority. It seems to me that the solutions are fairly clear about how and why and with what prior consent ministerial staff can and should operate in conjunction with the departments. This is what we talked about when we discussed a code of conduct. This is not something which would necessarily be parliament driven but it would explain to both sides where they stand in relation to one another and where they stand in relation to what they can reasonably do. Departments would know how far they could be pushed in these sorts of circumstances.

Most of the time it works comparatively smoothly. But there are occasions when people push too hard, a lack of trust forms and you actually develop the sort of relationship which you developed in CMI, for instance, in which everything had to be cleared with the ministerial press office before anything was allowed to be made public about the ongoing conflict in Afghanistan and other things like that. That is when you can develop a lack of trust and things like that can occur.

What we need to do is to actually spell out the only part of the system which is not spelt out at all. All we have is that ministers cannot delegate their authority to ministerial staff. But what they do, how they do it and all these sorts of things seem to be part of an empty hole. If we can answer those questions then it seems to me we will be acknowledging a new part of our constitutional framework—a new part of our executive government—and seeing how it would best fit in.

We will not get it right first time, if we try. It will be a developing set of propositions but it seems to me that people can say, `Hey, this is what I'm expected to do.' And if, as I am assured, more and more ministerial staff are not people with a public service background but are brought in from business, unions, the party and from wherever else they come from, it provides them with some assistance when they start about what is expected of them. With respect, I am not sure that the department of finance training is as high-powered as it might be for understanding some of the sensitivities.

Ms Tiernan —I want to clarify this point about transparency. In our submission we were very careful to say that we think that the system is overdue for reform and that it is very important to reform it, but let us reform it on the basis of a very good understanding of it. We are all still talking in very large generalities about how the system is working. It is very hard to get a descriptively accurate account of how the system is working because of the obsessive secrecy—I have mentioned it several times in the submission—about the ministerial staffing system. The dilemma in pulling out actual numbers of staff has been a problem hitherto, although the submission from Prime Minister and Cabinet and the department of finance lays that out. There is a lot of secrecy about how this system works. Why is that when it is publicly funded?

So the issue of transparency for me is not knowing what the chief of staff says to the minister or what the press secretary says to the journalist whom they are briefing, it is knowing how many people are there, what their roles are, what they are doing, and what their qualifications and experience are to have these roles. To my mind it looks like the kind of reporting that you have about the public service that people used to say could not happen—it would undermine the quality of the system. I just do not think that is true. We do not know how many of the current staff have a public service background; we have no idea, although that information would be easily obtained by doing some sort of analysis of that. Senator Murray asked some questions about analysing retention, turnover and those kinds of things. These are all very important things that you need to know about your important political institutions within the executive, and this is one of them. That is the kind of transparency that I am talking about.

Senator WATSON —I am seeking the pillars for this clearer framework that you are talking about. Firstly, you have given us transparency of the role of advisers. Secondly, you have spoken about a code of conduct. Can you continue?

Ms Tiernan —Yes. A clearer administrative framework is another one. At the moment the administration is in cells. I think that is how you described it this morning. This is actually a system that has a lot in common across the different offices. We need to think of it more as an organisation and an institution rather than as a set of idiosyncratic arrangements across different offices, because it actually has common characteristics and features that you can describe. A clearer set of administrative arrangements would not have 17 people from two different agencies; there would be a clear responsibility for the system. At the moment I think that is with the Special Minister of State, but if the system is being notionally run from the Prime Minister's office, which it always is, it might be more appropriate to have the system administered from PM&C. There is a range of legislative, administrative and management framework issues that you could establish quite easily.

Senator WATSON —So you are suggesting a bureaucracy within the bureaucracy?

Ms Tiernan —No, because I think that would be resisted. I am not suggesting it should be a mega bureaucracy but it should be a level of bureaucracy appropriate to something that costs the amount of money that it does and has the important ability to influence things that it does.

Prof. Weller —And the final clause is the accountability we were talking about.

Senator WATSON —That is the third one. Are there any other pillars of this framework that you were talking about?

Ms Tiernan —Not that I can think of, no.

Prof. Weller —I hope that keeps it standing.

Senator WATSON —The last one is administrative transparency, is that right?

Prof. Weller —Yes. We know how many ministers there are, we know how many MPs there are, we know how many public servants there are but we do not know how many ministerial staff there are.

Ms Tiernan —We do but we had to find out through an inquiry.

Prof. Weller —And there is not an annual report which explains where and who they are. It seems to me again that part of the public purse is that—

CHAIR —My staff tried to work out those figures. It took a lot of work to get some estimates.

Ms Tiernan —But it shouldn't, should it?

CHAIR —Then we received the submission.

Prof. Weller —It seems to me that as long as the public purse is paying for it, there ought to be some accountability.

Senator MURRAY —The two of you may not be aware of it but the Labor Party and the Democrats, on my initiative, got the first ever report into parliamentarians' entitlements—the auditor's report—in 100 years. The second part of that is an auditor's report on staff, and that will come out this month or next month, as far as I am aware, so you should watch out for that. That will give you much of the framework. For parliamentarians around this table who came in in 1996, when I consider what we get now in terms of management analysis systems, a simplified bureaucracy and so on, listening to you I hear echoes of the problems we had in 1996 which we now do not have. What you are suggesting is a very rational movement forward; it is a useful analogy to pay attention to.

Senator MOORE —I have a couple of questions, and they lead on from the last point. All the way through your submission, a key point is the difficulty in obtaining information. How did you go about getting it? Did you send letters to the Special Minister of State requesting this information?

Ms Tiernan —I am pursuing interview data. I watch the Senate estimates committee with great interest. It is a combination of letter, documentary and interview data.

Senator MOORE —This morning, when I asked Dr Shergold and Dr Watt about the lack of clarity and awareness of the system, both of them responded that there was no difficulty, that all their staff were fully aware of how they interacted with the ministerial staff and that they were fully aware of their responsibilities, although neither department had a formal protocol for how those areas interacted.

Prof. Weller —I make two comments. First, those are the two departments that would probably interact more readily with ministers than most others; you are actually putting down some of the other departments. When you ring up the department of health—an SO2 or something—and say, `This is the minister on the phone,' or, `This is the ministerial staffer on the phone,' they will stand to attention and drop the phone in fright because they just are not used to that sort of thing, and I am not sure the protocols would work down there.

Ms Tiernan —There has also been enormous stability, particularly in the Prime Minister's office. There have been five years of practically no change in personnel there. So you would expect the PM&C people to have established a set of relationships.

Senator MOORE —But if the information is readily available through that sector, you would question why it would not be readily available to the public. That is my issue.

Ms Tiernan —It is because it is construed as partisan—that someone wants to do something to embarrass the government. That has been the response that I have had to inquiries. I have been very careful to say, `I am interested in an institutional look at this thing and trying to understand it.'

Senator MOORE —And the response has not been effective?

Ms Tiernan —The response has been suspicious, but that is not unique to this government. Jim Walter did a study of ministerial staff in which he said exactly the same thing 20 years ago. It is ruthlessly insider.

Senator MOORE —Except that it is publicly funded.

Prof. Weller —It is publicly funded but—

Ms Tiernan —It was smaller then, so it is more of an issue now.

Senator MOORE —The other statement that you make in your submission is that the myths on which the system is based no longer ring true. On my reading of your submission, you have said that there is a range of myths, but the one that is mentioned is the issue of ministerial responsibility. You have already debunked the—

Prof. Weller —There are two myths. One is that you tell the staffer and the minister knows; and the other is that the adviser asks and the minister asked the adviser to ask. Neither of those two is true—I do not think they were ever entirely true. But they were the sorts of myths which grew up under Whitlam and Fraser when everything was very much smaller, and I think since then it has just become much more impossible for either of those two propositions to stand.

Senator MOORE —The final point was in terms of the acceptance that you have for some form of code of practice or a process—that is, how such a thing would be implemented and how it would be maintained. I know you have read the other submissions. There are a range of suggestions, and the criticism is that, by introducing a range of regulations, you are not actually getting results; you are just getting regulations.

Ms Tiernan —I think that is what government ministers have said, and you can imagine that that will be the reaction.

Prof. Weller —I think the first step is to create a set of expectations and a set of understandings about what is or is not reasonable in these sorts of propositions. We do not have that yet. The Secretary of the Department of Finance and Administration and the Secretary of the Department of the Prime Minister and Cabinet say, `We've got some understandings but they're not written down—they're verbal or they were in a speech and you'll see them when you get the copy that you ask for.' It seems to me that we need to go a stage further than that, given the weight of the organisation and the machinery. If first we can get some notion of `Here's a code of conduct; here's how we expect to behave', then we can gradually work through and say, `People are breaching that; what should we be doing with it?' To try and put in a too prescriptive one with too many sanctions first up is unlikely to get any support at all. I think talk about a code of conduct and a set of expectations will gradually allow this to evolve, which I think is much more relevant in those sorts of circumstances.

Ms Tiernan —As we have said several times, it has to be something that will work for ministers; otherwise, they will not be interested in it. It is not about prescribing or—

Senator BRANDIS —I want to revisit something that emerged a little earlier about transparency. I asked you earlier, Professor Weller, whether you thought transparency was something intrinsically good, and you told me you thought it was. Does that do justice to your response?

Prof. Weller —Transparency on certain conditions. I have never suggested the advice that is given to ministers or the political discussions that people have should be transparent.

Senator BRANDIS —That is what I am getting at, Professor Weller and Ms Tiernan. You are familiar, I am sure, with the distinction that is sometimes drawn in moral philosophy between things that are inherently worth while or things that are good in themselves and things that are worth while because of the outcomes they produce but are not necessarily inherently good in themselves. The proposition I would put to you is that, when it comes to public institutions, transparency is not an intrinsic merit but a functional merit. In other words, if it produces better policy outcomes or makes the institutions function better, more conformable to core values, then it is a good thing but it is not intrinsically a good thing. If I may, I will give you a couple of examples—you have anticipated one. Nobody suggests that cabinet discussions should be transparent, or at least not until the suspension of a long period of years.

Prof. Weller —Too long, I might add.

Senator BRANDIS —Another, even more striking, example is that nobody—or nobody sensible—has for a moment suggested that decisions of the High Court should be subject to a process whereby the judges who deliver them could be interrogated or examined as to the process of reasoning by which they came to those decisions, who they spoke to about them or what influenced them to write their judgments in a particular way—and those decisions are unappealable and unreviewable collaterally—yet there are very few decisions that any Australian public institution makes that are more important than the decisions of the High Court. What is it about the relationship between ministers and their staff that takes that part of the institutional structure of our democracy out of that category of, say, cabinet discussions or High Court decisions—which of their nature are not transparent and, I would put to you, ought not to be transparent? Why are they in that category of things in which, as you say, transparency is intrinsically desirable?

Prof. Weller —If asked to define whether it is intrinsically desirable, my comment would be that, in a democratic state, the bias should be towards transparency unless there is a good reason why it should not be. For cabinet, it is of course desirable. I had the advantage some years ago in that Malcolm Fraser gave me access to all the cabinet papers. He gave me that access in 1985 which was just 18 months after he had finished in government. I found almost nothing in those cabinet papers that would upset or worry anyone were they now made public. I wrote about a lot of them and no-one actually noticed. I think we overdo the secrecy. If ever I were to be convinced of that, it would have been during the exercise of writing a book on Malcolm Fraser.

My tendency would be to ask for a good reason why it should not be transparent, rather than why it should be. I can see good reason why political discussions or political advice from an adviser to a minister should be maintained as confidential so that they can be free-ranging discussions. I cannot see the same sort of logic for saying whether or not I told you information came from my department or not—or whether I passed information from my department on—should be a protected subject to the same degree, given that political advisers are now playing a significantly powerful role in our political system.

Ms Tiernan —We might not know the detail of what is deliberated in cabinet, but we know a great deal about how it works, who is there, what they are doing and how the rules work. It is the same for High Court judges. We know how they are appointed, who they are and their gender breakdown. That is the kind of administrative transparency that I think—

CHAIR —And what they are told.

Prof. Weller —And they have to give reasons for their decisions.

Senator MURRAY —And what submissions—

Ms Tiernan —That is right. So I do not think we need to be involved in the detail and, for reasons already discussed today, I think it would be entirely inappropriate. In terms of the infrastructure—the arrangements—I do not see why ministerial staffing should be any different from cabinet, High Court judges and so on. But it costs a lot of money. There are a lot of people and it is a big and complex organisation.

Senator BRANDIS —I am not going to disagree with you about the infrastructure arrangements but obviously that is quite a separate category of consideration from, if you like, the intellectual input—what is said to whom, on what occasion and for what motive.

Ms Tiernan —But I think everybody accepts that that should be privileged between the people in that relationship.

Senator BRANDIS —I am not sure that has been accepted.

CHAIR —Senator Brandis, we have gone on for quite some time. Unless you have specific questions for the witnesses, as interesting as this discussion might be, we do have other witnesses who have been waiting very patiently, and I would like to draw this to a conclusion now.

Senator BRANDIS —Let me draw it to a conclusion by asking this question: in a couple of short sentences, what do you say is the principal functional reason why it is necessary that, to the extent you have suggested, ministerial staff ought to be answerable?

Prof. Weller —Because they are powerful players in the game who have an influence on the outcome. In particular inquiries, the Australian public—if you would like to put it in those terms—should be able to know what role they play, since we know what role everyone else plays.

CHAIR —That being the ministers and the Public Service?

Prof. Weller —Yes.

Senator WATSON —I would like to make an observation following on from Senator Brandis's questions. Whether transparency is inherently good or not I do not think is important. What I think is significant is that transparency is one of the best detergents we have.

Prof. Weller —Detergents?

Senator WATSON —Detergents.

Ms Tiernan —Detergents!

Senator WATSON —It washes out the problems.

Ms Tiernan —For sure!

CHAIR —Professor Weller, I had one or two other questions which I will put to you in writing or give to you on notice. They relate specifically to your submission.

Prof. Weller —We will be happy to respond.

CHAIR —Thank you. Your attendance this afternoon is appreciated.

[4.10 p.m.]