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The Washminster system

February 16th, 2006

Peter Shergold, head of the Department of Prime Minister and Cabinet has stated what has long been apparent. The Westminster system, under which ministers are responsible for wrongdoing by their departments, is dead in Australia. Shergold says, in relation to incidents like the AWB scandal, that ministers should resign only if they ordered public servants to breach the law or “or if a minister had their attention drawn to matters and then took no action”.

Although Shergold apparently went on to deny this, it’s obvious that the current setup, in which ministers are screened by staff appointed on a basis of personal loyalty, ensures that ministers need never have their attention drawn to anything likely to compromise their position. Such information can always be communicated to a private secretary or similar staff member, who will judge what the minister needs to know and, more importantly, what the minister needs not to know.

And if the staff member has a quiet word with the minister off the record to clarify these points, this can never be proved. We saw this with Children Overboard and it’s playing out, exactly as we knew it would, with the AWB scandal. Even though Canberra was being deluged with allegations against AWB, and (as was reported today) everybody in AWB and the Wheat Export Authority knew the score as early as 2001, no minister ever “had their attention drawn to matters”.

There’s no easy way of fixing a system as broken as the one we have. An obvious step, if it could be made, would be to make ministers personally responsible for their own offices. That is, if a Minister’s personal staff are complicit in breaches of the law, or fail to act on information, the Minister should be presumed responsible for this.

But even this won’t happen without a radical shock to the system. The only real hope is a Royal Commission appointed after a change of government, when public servants will no longer have an incentive to protect their erstwhile masters.

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  1. Atticus_the_Lawyer
    February 16th, 2006 at 08:00 | #1

    To be fair, I think the size and complexity of government has outgrown the traditional conception of Westminster ministerial responsibility.

    I think one needs to look at the history of the concept.

    Originally, when the Westminster system first started to evolve in the Eighteenth and Nineteenth centuries, a government “department” consisted of the Minister himself, his personal secretary, and a few dozen public servants. Exceptions like the British East India Company were never really subject to the same sort of Ministerial responsibility concepts. In that milieu, it made sense that the Minister was personally responsible for any errors or misconduct on the part of any officer or employee.

    But as Departments have grown, this principle has become increasingly unrealistic and unfair.

    But here’s the kicker. The growing phenomenon of Ministerial staffs look a lot like the old ministerial *departments* in terms of size and the directness of the relationship between the staff and their Minister.

    So here’s my proposal: Let’s go back to a *totally* *strict* principle of ministerial responsibility – but only with respect to Ministerial staff. That is to say, instead of the current situation where no-one is responsible for the actions of staff (they cant be called before Senate committees and ministers can pass off responsibility to them), the Minister will be absolutely responsible for anything his or her staff does, regardless of whether s/he knew about it. On the other hand, a Minister will only be responsible for a public servant if the Minister knew of the action before time.

  2. jquiggin
    February 16th, 2006 at 08:27 | #2

    I agree entirely Atticus. I was struggling a bit for words to say the same thing.

  3. Atticus_the_Lawyer
    February 16th, 2006 at 08:57 | #3

    Thanks John. I really appreciate that. Btw, for profession reasons I can’t really post under my real name, but feel free to email me. There are a few issues on which I think we could help each other out with papers, et al.

  4. Terje Petersen
    February 16th, 2006 at 09:19 | #4

    It seems symptomatic of the fact that governments now do too much.

  5. February 16th, 2006 at 09:23 | #5

    Large, complex government departments and politically interested staffers have been around for more than a generation, since Fraser. They are a consequence of the vastly increased responsibilities of government and the much more intensive media scrutiny of elected officials.

    Some of this political buffering and screening is fair enough. It is unreasonable to expect ministers to be supermen or gods, knowing every matter that passes into their department to the last detail and handling everything with perfect efficacy, efficiency and equity.

    But it is only under Howard that the phenomenon of official cut-outs and need-to-know “[im]plausible deniability” has reached its current state of perfection.

    Part of this is because of Howard’s Machievellian political MO, which is very much outcomes, rather than process, oriented. This is deplorable, I suppose. But given politicians necessarily are serving various conflicting interests (people, party, donors) it is a big ask to expect every one to be squeaky clean.

    Another cause of political malfeasance is the very obvious financial ambitions of most Coalition, and some Labor, policiticians. Most of their mates are earning a packet in business or the professions. They don’t want to miss out on a big bite of the cherry.

    And if that means cutting a few corners and greasing a few wheels then so what? The job gets done, the economy is delivering a beautiful set of numbers. The punters are happy so why shouldn’t the pollies get a drink?

    The solution for all this is better accountability between agents and principals. Whether this means reducing the responsibilities of agents or increasing the voice of principals is an open question.

  6. still working it out
    February 16th, 2006 at 09:23 | #6

    The problem is that the very large of size of government today is not compatible with the Westminster system. Centrelink, for example, employs around 25,000 people. This is only a bit less than Telstra. The head of Telstra is not held personally responisble for everything it does, only for overall performance. With such large organisations it is not realistic to expect a minister, who is only a single person, to be personally accountable for every act committed by their ministry.

    Once we accept this fact we are limited to holding ministers accountable only for what they directly know about. But being sure of what they know is presently an impossible task. Any minister with a bit of common sense can rely on informal channels to avoid leaving a paper trail proving they know of something. And the huge size of their departments makes it possible to plausibly deny knowledge of just about anything. The departments are just too big for a single person to know everything they are doing.

    Unfortunately, it looks like some goverment ministers are taking full advantage of these problems.

    The solution is to get rid of the informal channels by holding lower level managers much more accountable. Lower level managers control much smaller groups of people and it is realistic to expect them to know of almost everything that is happening with their own staff.

    It should be a principle that if misconduct is discovered the most senior person who clearly should be aware of it has to act. If they fail to act either through ignorance of the matter, or deliberate decision they have to go.

    If managers know their own job is on the line they will insist on written confirmation of any direction from a minister that they know to be questionable. Likewise, if they become aware of unacceptable behaviour by other people they will be forced to act by either removing the staff involved or passing this information up the chain of command which they will do surely do in written verifiable form to cover themselves.

  7. February 16th, 2006 at 09:45 | #7

    Shergold was once an American economic historian, his only book hardly suggests someone who would end as John Howards adviser (and before that Peter Reith). Time changes us all it seems.

  8. February 16th, 2006 at 10:31 | #8

    In the end we are all answerable to someone. In the case of AWB, we are answerable to the American senate.

    Meanwhile, over in Malaysia, the government has been apologizing (under pressure from the Indian and Chinese government) for maltreatment of tourists and workers from these countries by the police.

  9. Krusty
    February 16th, 2006 at 11:18 | #9

    Great post, incisive comments.
    Whenever Howard is mentioned what comes to me immediately is an image of Bart Simpson and his timeless defence “I didn’t do it, nobody saw me do it – you can’t prove a thing”.

    Needless to say though I hold Howard in boundless contempt while loving Matt Groening. Go figure!

    Then the comment from somebody above, about Australia being answerable to the US senate, calls to mind in one intertwined skein both our frabjous Free Trade Agreement with our great and bestest friends in the US, and the Simpsons’ Monorail episode:

    Lyle Lanley: That’s right! Monorail!
    [crowd chants `Monorail' softly and rhythmically]
    Miss Hoover: I hear those things are awfully loud…
    Lyle Lanley: It glides as softly as a cloud.
    Apu: Is there a chance the track could bend?
    Lyle Lanley: Not on your life, my Hindu friend.
    Barney: What about us brain-dead slobs?
    Lyle Lanley: You’ll all be given cushy jobs.
    Abe: Were you sent here by the devil?
    Lyle Lanley: No, good sir, I’m on the level.
    Wiggum: The ring came off my pudding can.
    Lyle Lanley: Take my pen knife, my good man.
    I swear it’s Springfield’s only choice…
    Throw up your hands and raise your voice!
    All: [singing] Monorail!
    Lyle Lanley: What’s it called?
    All: Monorail!
    Lyle Lanley: Once again…
    All: Monorail!
    Marge: But Main Street’s still all cracked and broken…
    Bart: Sorry, Mom, the mob has spoken!

    [Thanks to http://www.snpp.com/episodes/9F10.html ]

  10. Razor
    February 16th, 2006 at 11:25 | #10

    I have been closely connected to the sacking of a Minister for something their staff did/did not do.

    This was a case where a Ministerial Staff Member failed in the performance of their duties. The Minister was ultimately responsible for what happened.

    I don’t want to go into the case specifically for a whole range of reasons.

    From a personal point – it was like a death in the family for the Minister involved and his staff. The toll taken on the Ministers’ family was immense. The intrusion of the media was excessive and added to the strain of the situation.

    The financial cost of losing a Ministerial position is immense.

    JQ – how would you feel if you lost about $100,000 p.a. salary plus the resulting impact on superannuation benefits caused by an inadvertent oversight?

    For all those who believe that a Minister should fall on their sword for any and all actions by their departments I ask you where do you draw the line?? In my time in the Army I was both directly and indirectly involved in incidents that drew media coverage and political attention but were the result of Service Personnel making their own decisions – absolutely nothing to do with the Minister – most wouldn’t know who it was let alone be able to recognise or even been in proximity of them. Where do you draw the line?

  11. Bill O’Slatter
    February 16th, 2006 at 11:30 | #11

    All of this is idealistic talk . The rot starts at the top and a sufficiently psychopathic persnality can corrupt any political checks and balances put in their way. The only solution is the removal of the miscreant at the ballot box.

  12. Katz
    February 16th, 2006 at 11:36 | #12

    Atticus: “the Minister will be absolutely responsible for anything his or her staff does, regardless of whether s/he knew about”

    These staff operate as cut-outs and back channels for ministers. They provide “plausible deniability”.

    Atticus’s proposal makes these staffers an extension of the juridical personhood of the minister. This proposal relies for its success on two conditions:

    1. Public servants have the willingness and the ability to report their communications with ministers and staff. Howard has prohibited public servants from making these reports to oversight bodies such as the Senate.

    2. Ministerial staffers will not, themselves, develop cut-outs and back channels necessitating a further widening of the circle of scrutiny to establish ministerial responsibility. US administrations are rife with this phenomenon.

    Atticus’s proposal is a good way to play catch-up with governmental evasiveness, but the war will go on until ministers stop lying or until anyone stops caring that the ability to lie is a primary qualification for ministerial office.

  13. Tex Lumbago
    February 16th, 2006 at 13:10 | #13

    Razor maybe they can plead unfair dismissal.
    Or maybe they can go and get another job like the rest of us are supposed to do when we get sacked for stuffing up in our current job.

    As for losing that extra $100g/year…my heart bleeds for ‘em.
    Not.

  14. February 16th, 2006 at 13:37 | #14

    I think that some kind of ministerial responsiblity is essential as a practical means for public scrutiny of Government actions, and for ensuring that political pressure can be applied through Parliament so that Commonwealth actions are held accountable.
    Ministers are responsible for setting up systems within their departments for effecting Commonwealth action, and for gathering and assessing feedback. Serious failures, as were documented for DIMIA under Ruddock, are more a result of the failure to monitor the department at the very least, or worse [which I will not get into here]…
    When feedback is repeatedly received that something is seriously wrong in a department, and the minister does not act to correct that situation, then it is clearly the ministers’ responsibility. If adequate feedback systems are put in place the minister can not be credibly said to be unaware of systematic failures. To fail to set up and act on feedback information about a department is clearly to fail in a minister’s responsibility to Parliament and the Austrlaian people.
    It’s not about a minister having to look over the shoulders of everyone of its thousands of staff. Its about being alert to systematic problems with the department and addressing those problems promptly.

  15. February 16th, 2006 at 13:49 | #15

    And ministerial staff are key to managing and monitoring a department. Its the ministers job to make sure that these people are capable and competent, and keep himself or herself well informed.

  16. Paul Kelly at News Ltd
    February 16th, 2006 at 14:57 | #16

    Shergold was head of Science when Brendan Nelson was minister. He doctored survey results to omit findings that cast government changes to HECS in bad light and was generously rewarded. Anyone who has seen him speak knows he’s a shocking show pony to boot.

  17. February 16th, 2006 at 17:49 | #17

    Geoff R, it is not time that changes us all at leat not in that way.

    As Howards has well shown, it is the big sticks and the carrots that makes the donkeys move one way or the other. And sheep follow sheep.

    But, looking at this more realistically, while I do like Atticus’suggestions this definitely comes from the top: Leadership (or lack of it) by example. Most of those rules changes will only be eroded or abused into uselesness. It becomes an ongoing game of catch up…

    And it is no different with the bussiness elites, banks, insurance, super funds, financial companies, dodgy boards and directors, developers and local councils, etc.

    It is a culture of deniability and lies. Just ask this guys or read the report of the most recent Australian Super Funds ethics study: Walking the ethical board talk.

  18. phil
    February 16th, 2006 at 19:09 | #18

    A couple of thoughts.

    Public services (certainly in Australia) are well capable of doing good, complex and detailed analytical work that can provide government with options for action and some idea of consequences. Treasuries are usually good at identifying consequences ‘unforeseen’ by other departments. The trend that most of this good work is subverted to trying to find complex answers to simple questions (eg PPPs – and I know this is a gross simplification, but I see PPPs as a fabricated way around the reluctance to borrow for long lived assets) is a waste of resources and limitation on good outcomes.

    Good Ministerial staff will quietly consider options and then give some direction. But the general trend, exacerbated by structural ‘reforms’ such as short term contracts, is for government to simply seek implementation models for their own ideas or – and this is frequent – quick ideas for ‘announceables’ that are brought forward without the research and analysis that could be undertaken.

    Howard’s just perfected the art.

  19. Roger W
    February 16th, 2006 at 20:14 | #19

    Howard, Shergold and Co can say and do what they like – they will anyway. All we can do is complain loudly in places like these and register our disgust at the ballot box every few years. The best way to initiate change – is to play the game like they do – and deny all knowledge of the social and economic rules imposed by Government. What’s wrong with a new set of citizen initiated social rules anyway? Imagine how they will react when we all decide not to pay our taxes! Anarchy will be the result – that will force change.

  20. Michael
    February 16th, 2006 at 22:32 | #20

    The bottom line is, what incentive do Ministers currently have to ensure they and their departments act professionally, responsibly and ethically?

    Because of Howards corruption of the system (and that is EXACTLY what it is) they have precisely NO incentive to act this way – and the record clearly shows that they dont.

    I reckon the potential loss of their Ministerial job (and the 100K a year that apparently goes with it) is a pretty fine place to start to keep them honest!

    The possibility of a jail term for official corruption also tends to focus the mind, but dont expect it to happen in OZland anytime soon.

  21. wilful
    February 16th, 2006 at 22:33 | #21

    The suggestions, while well intentioned, wouldn’t do anything. Howard and his cronies have perfected the art of not ever seeing what they don’t want to see in writing. Quite simply, it’s low level corruption. It should be illegal, but never could be, so we’re all screwed, until such a time as the general populace decide that this is important. My main concern is that Howard has set the rules of the game for a generation or two, and when the other mob get in (which they’ll have to do someday) they’ll think that’s the way the game’s meant ot be played, and we go on a merry spiral downwards, with an apathetic electorate and supine media allowing it to continue.

  22. Stapo
    February 17th, 2006 at 05:45 | #22

    To me this argument seems a little on the uneconomic and undemocratic side. The degree of ministerial responsibility should not and is not governed by some unwritten code of Westminster ethics; it is governed by the ballot box. If people were willing to change their vote over a failure of the minister or a lack of government accountability and remove the government then the “Westminster system� of ministerial responsibility would be adhered to. The Australian population does not appear inclined to do this either because the alternative is even less appealing or because they can’t be bothered paying attention.

    It appears to me that if there is a failure in the system it is that single member electorates appear to produce two party parliaments and make it difficult for other parties to gain a foothold. This leads to “stable� governments but not necessarily representative governments; a dictatorship is even more stable and less representative. Likewise a market system that encourages a duopoly or monopoly will lead to stable prices and monopoly profits.

  23. February 17th, 2006 at 10:02 | #23

    John is correct.

    Not until a minister falls will corrupt and inept public servants stop being rewarded with another plummier role in the so-called service of the public.

    Back to economics: Australia is a small country, and in many ways it is answerable to everybody else. Keating’s float of the dollar is a recognition of this. AWB’s actions has not only damaged itself, but the reputation of the Australian government in the eyes of the US. I’m surprised that the Nationals continue to support the idea of a single marketing desk for wheat. It’s practice doesn’t seem to gel with the reality that there are many other suppliers.

  24. February 17th, 2006 at 14:43 | #24

    Are there any standards that our elected parliamentarians feel bound to try to work towards?

    The idea of ministerial responsibility works as a norm. In a two party system you would EXPECT the opposition to try to show how it was better suited to government, and that the Government is failing in its responsibilities. If the leader of the opposition blabbers on about it enough, then the media and general public will follow suit. Ministerial responsibility makes sense. Crude partisan favouritism is in general damaging for our democracy, our economy and our national reputation.

    The Westminster system is embedded in conventions and has a long history. I see ministerial responsibility in parliament as a self correcting mechanism. It fails to work when the political class forgets the context. The political class may agree amongst themselves that this forgetting is in their favour, but sooner or later the shit will hit the fan! Political spin does not impress the market, nor once the corruption is exposed, the general public.

    Ministerial responsibility is a Westminster norm [but there could still be other ways that a self-correcting parliamentary system of responsibility for Government action could be set up - ie Congress or Washminster, etc].

  25. February 17th, 2006 at 16:17 | #25

    Some good comments and suggestions here. Another (additional) way to go, as washminster washes over everything, is to incorporoate some of the US checks, such as parliamentary hearings for the appointment of key (central) department heads, and perhaps more committee oversight. OK, always available for manipulation by numbers of course, but there is something to be said for public hearings, accountability wise – and the department heads would hate it, which is perhaps argument enough.

  26. Iluvatar
    February 20th, 2006 at 11:59 | #26

    Roger W is onto the right way.

    I think we should put pressure on all politicians to start behaving ethically (yes, slim chance I know :-( )

    A good start would be Citizen Initiated referenda !

    After that I think we should actually reform this hopeless Westminster system. After all it has passed it “use by” date and has moved in to the US-like downward spiral to a 2-horse race which helps no-one but the “kiss arse” supporters of each side.

    How do we go forward from here, I ask all you learned and erudite fellow commentators?

  27. Andrew Reynolds
    February 20th, 2006 at 13:07 | #27

    “[L]earned and erudite”? Who is doing the “kiss arse” bit now?
    .
    IMHO, stapo is right, at least in his first paragraph. The minister would be dumped faster than you could say “corrupt and inefficient” if they were going to be an electoral liability in their position. Otherwise, they will stay.
    .
    As many above have pointed out, the problem is the sheer size of the departments that are now under a minister’s (at least nominal) control. Atticus seems to believe that we can look at a minister’s staff and apply the priniciple there. The problem there is to work out who the ‘staff’ are? If we apply it to the private office, then you will find the channel from the private office to line departmental staff becomes a filtered line of communication and the informal, off the record, channels will carry any potentially embarrasing information.
    IMHO, government is now simply too big for the mechanisms that exist to control it. Wholesale downsizing and decentralisation is the only way we are going to address this.
    .
    I find it remarkable that, in this forum at least, those who argue that the government should have even more power over the economy are the first to complain when that power is not used correctly. Guys, it hardly ever will. All power tends to corrupt, absolute power corrupts absolutely.

  28. Andrew Reynolds
    February 20th, 2006 at 13:17 | #28

    PrQ,
    I would hazard a guess that no such Royal Commission will ever be called – an incoming government would be fully aware that they will one day be the outgoing government and subject to another of these inquisitions.

  29. February 20th, 2006 at 14:08 | #29

    Dear John

    This has been an overdue discussion. We should be talking about this around the barbeque. I agree with those who say that we need to provide incentives for Ministers and public servants, to encourage them to act ethically. I think there also need to be punishments that include dismissal and possible imprisonment for those who err.

    These standards were not applied to Bill Farmer, who headed DIMIA when human rights violations were rampant (this may not have improved much). He was rewarded with the job of Ambassador to Jakarta. Dennis Richardson, former DG of ASIO, who smiled approvingly on the detention and torture of David Hicks and Mamdouh Habib and the absurd and indefensible arrest and deportation of Scott Parkin, was rewarded with the job of Ambassador to Washington. He too received no punishment for wrongdoing. These people receive only high-level reward.

    On the other side of the ledger we find numerous examples of whistle-blowers whose lives and careers have been ruined. The list is long.

    The trouble is this ‘disengagement’ of the Australian electorate – but also, regrettably, John Howard knows that his Ministers are safe from having to meet any standards – because they are safe and no one cares. People mainly believe you have to ‘crack a few eggs to make an omlette’.

    If you think we are good at ethics in our daily lives, check the current share price of Anvil Mining, currently under investigation by the UN and the World Bank http://www.advfn.com/quote_Anvil-Mining-Li_TSE_AVM.html These investigations arise from the massacre of over 100 people in DRC. The share price dropped to .34c after Anvil Mining was featured on ABC TV Four Corners. The share price is now close to A$7.00. So, if you think this is OK you probably don’t mind that Peter Rieth, Phillip Ruddock and others are not doing jail for their roles in the SievX disaster.

    As for waiting for elections to correct this situation, we shouldn’t hold our breath for Labor to raise the issue of ethics, as it will rebound on them when and if they regain power.

    Regards
    Willy Bach

  30. SJ
    February 20th, 2006 at 19:26 | #30

    Willy Bach Says:

    As for waiting for elections to correct this situation, we shouldn’t hold our breath for Labor to raise the issue of ethics, as it will rebound on them when and if they regain power.

    I guess that’s the conventional wisdom, after Greiner’s experience with the ICAC. (Greiner campaigned strongly on anti-corruption in 1988, following on from a series of Labor corruption scandals culminating with the jailing of Rex “Buckets” Jackson, the Corrections Minister, in 1987. Greiner established the ICAC in 1989. In 1992, Greiner was forced out by the ICAC’s finding that the appointment of former Education Minister Terry Metherell to a government position was an act of corruption).

    However, unless the fed Labor party establishes some point of distinction from the Libs, it’s obvious (though apparently not to them) that they’re never going to get elected at all.

  31. Andrew Reynolds
    February 20th, 2006 at 19:44 | #31

    SJ,
    I think that you are right. The current ALP leadership would be no improvement over the current government, and almost certainly a step backwards. Unfortunately, I also think that, given their recent performance in selecting adventurous leaders, they are likely to go for the small target (metaphorically at least) strategy every time.
    Looks like we are going to get Costello as PM for some time to come…

  32. SJ
    February 20th, 2006 at 20:08 | #32

    Unfortunately, I also think that, given their recent performance in selecting adventurous leaders, they are likely to go for the small target (metaphorically at least) strategy every time.”

    I’d quibble a bit with that. They were doing well in the run-up to the last election, until they did the reconciliation with Beazley (and his followers) and made Beazley the Foreign Affairs spokesman. That killed off a lot the ALP’s platform, because Beazley hardly disagrees with Howard or Downer on anything. So I’d see the “small target” thing more as a pre-existing problem, rather than as something arising from the choice of Latham as leader.

  33. SJ
    February 20th, 2006 at 21:22 | #33

    P.S., Andrew, I can’t leave this unremarked: “Looks like we are going to get Costello as PM for some time to come…

    I’ll believe when I see it. Australians like Costello almost as much as they liked Keating.

    It’s more likely that in 2019 we’ll be discussing whether it’s time for the 80 year old Howard to resign, or whether the new quantum reality-processor he just had fitted will see him successfully through to 2022.

  34. February 21st, 2006 at 15:27 | #34

    I doubt things will change much until we work through educational and training institutions to improve individual and organisational integrity on the basis of our current scientific knowledge of our world and of the human mind. Trust-enabling technology could be used to facilitate this.

    In the meantime, how about a concerted campaign to encourage and protect whistleblowers by, say, guaranteeing them legal representation and a job in an educational or training institution for a year?

  35. thommo
    May 6th, 2006 at 19:07 | #35

    I am doing a research paper for uni now on the relevance of the AWB scandal to government accountabiility.

    I cannot believe that our constitution does not explicitly spell out the ideals of responsible government and what is expected of our governments.

    The only safeguards to ensuring government accountability appear to be Question time in parliament, and the ballot box.

    We need to reform our constitution urgently. Without such reform, there is very little to ensure our government is accountable.

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