My opinion piece in yesterday’s Fin (over the fold) was about Ministerial responsibility, drawing on the discussion we had here. My central point was that Ministers should be esponsible 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.
Today comes the news that Howard’s office got a cable about the AWB scandal in 2000, but neglected to tell him about it.
The Westminster system of ministerial responsibility is in a bad way in Australia. The days are long gone when ministers took the blame for errors and wrongdoing by junior officials. On the other hand, Peter Shergold, head of the Department of Prime Minister and Cabinet has proposed a new doctrine, so thin as to be almost invisible.
On Shergold’s view, ministers should resign only if they personally ordered public servants to breach the law or “or if a minister had their attention drawn to matters and then took no action�. So, provided a minister never talks directly to public servants or others who might draw inconvenient matters to their attention, they can never go wrong. The success of the Howard government in riding out a string of scandals that would have produced resignations under any previous government, or even in Howard’s own first term, shows how well these lessons have been learned.
Economists analyse this kind of problem using the theory of principal-agent relationships. The principal is someone paying to have a job done, and the agent is the one who does it. In the case of government services, the ultimate principals are the people of Australia. They elect a Parliament to act as agents, and the government appointed by the Parliament selects public servants and others who act, in turn, as their agents.
The problem is that the agents are not perfectly disinterested souls, seeking only to promote the interests of their principals, the general public. They have interests and objectives of their own. Politicians want to be re-elected, public servants want to expand their empires or enjoy a quiet life, and so on. The central concern of principal-agent theory is to show how incentives and accountability can align the interests of principals and agents more closely.
The simplest form of agency contract is one where the agent bears all the risk associated with bad outcomes. This type of contract, was embodied in the traditional Westminster system where, at least in theory, ministers were responsible for any action, and particularly any failure by their department.
The problem is that there are many risks that are outside the control of the agent. Making agents bear all the risk will promote excessive risk aversion. If ministers are personally responsible for every action taken by a junior clerk, they will enforce favor rigid rules and hierarchical procedures to ensure that nothing out of the ordinary is ever done.
The solution standardly prescribed by principal-agent theory is that risk should be assigned to the party best able to manage it. What does this mean in the case of ministerial responsibility?
This question may be answered, in part, by focusing on the notion of personal responsibility. Ministers are in a strong position to manage the actions of those agents whom they personally appoint and direct. Importantly, this includes departmental secretaries. The dispute over the dismissal of the Secretary of the Defence Department, Paul Barratt in 1999, made it clear that a minister can dismiss a departmental secretary without giving any grounds beyond a personal lack of confidence.
The treatment of the minister’s personal staff is equally important. Since the election of the Whitlam government in 1972, the role and importance of ministerial offices has grown. Having grown up between the cracks of the system, ministerial staff are effectively accountable to no-one except the minister. They can ignore the Parliament and are not subject to the controls of the Public Service.
Principal-agent theory suggests a simple solution. The Westminster doctrine of absolute ministerial responsibility should be restored with full rigour, but it should apply only to the actions and omissions of ministerial offices and Departmental secretaries. Failures at lower levels may lead to adverse judgements about the skill with which a portfolio is managed, but should not be regarded as being the personal responsibility of the minister.
In particular, on this interpretation, ministers should be assumed to be aware of any information that has been transmitted to their staff or their Secretary, and responsible for any errors of omission or commission by them.
It is all very well to suggest reforms of this kind, but no long-serving government is likely to implement changes that increase its accountability to the public. The only hope for reforms of this kind is that they will be adopted as policy by the Opposition and implemented immediately after an election victory, when the corrupting effects of power have not had sufficient time to work.
John Quiggin 
Your last paragraph says it all. Where there are no principles, there can be no recognition that anything is wrong.
Bravo John!
I’d have included more on the history of the Westminster ministerial reponsibility doctrine and the way your proposal is actually the functional equivalent of the way it originally worked, but that’s just the silly old historicist lawyer in me talking.
On another matter, while I don’t necessarily object to including Secretaries in your proposed doctrine, I do think there is a difference between a Departmental Secretary and Ministerial staff. My experience in the Commowealth public service is that the Secretary is far more removed from the Minster than the staff.
john, any thoughts on expanding uranium mining in australia, good /bad, indifferent
Hi Atticus, more to the point, you’re talking like somone without a 750-word limit. I wanted to include that point (which I think you raised in discussion last time) but I just couldn’t fit it in.
More background… The contracts for ministerial and electorate staff at both federal and state levels explicitly provide that staff may be dismissed at the absolute discretion of the minister ‘for any reason or for none’. The Members of Parliament Staff Act 1984 (Cth) makes similar provision. The principle of unfettered dismissal right was upheld in the unfair dismissal litigation taken by a former member of staff against the otherwise unremembered South Australian Democrat Senator John Coulter back in 1990.
John: Ah! I see. It’s a long time since I worked in the media (1996!) and I now live with the luxury of twenty *page* word limits…
Hal: I’d forgotten that. And it provides added strength to John’s argument. It might be unfair for a Minsiter to be strictly responsible for the acts of public servants that he may not have conrfidence in and cannot sack except for some limited causes. By contrast, it is fair that a Minsiter has an absolute power to dismiss staff on whose actions his/her career would (under john’s doctrine) live or die.
As an added point, IIRC, the Barrett (?) case (regarding the dismissal of the Secretary of the Defence Department) established that Minsiters may sack Departmental Secretaries in whom they have lost confidence. This would support John’s proposal to include Departmental Secretaries in the strict liability part of his doctrine.
PS: Please excuse typos and sexist pronouns in the previous post.
Atticus & Hal, the Barratt case was an important part of my reasoning regarding Departmental Secretaries. I wasn’t aware of the Coulter case, which is v helpful.
Atticus, could you point me to references on the C19 history?
stricttly speaking the Barratt case was about procedural fairness. It actually found in favour of barratt, but was somewhat of a pyhrric victory because it established that ministers could dismiss departmental secretaries for whatever reason they wanted (including “i don’t like you”) provided they gave the secretary that reason before dismissing them.
All I could point you to at the moment would be the classics: Bagehot’s The English Constitution (1867) and Dicey’s An Introduction to the Study of the Law of the Constitution (1863) and JS Mill’s Considerations on Representative Government (1861). Mill, in particular, gives you a flavour of the thinking at the time.
There are a couple of High Court judgments by Gummow J that discuss the issue and might be useful sources. I’m pretty sure Re Patterson is one of them. I’ll have a look over the weekend if I get a chance. If you want to check yourself, do an AustLII (www.austlii.edu.au) search of High Court judgments on the terms “ministerial responsibility” or (boolean) “responsible government”. The discussion itself might not be precisely on point (though it might) but the footnotes will be a goldmine for other references (always trust High Court judges’ associates to be almost tragicaly nerdish in the obsessive comprehensiveness of their footnotes).
There were also a couple of papers on the issue presented to the Gilbert+Tobin Centre for Public Law conference in 2005. I’m afraid I only have them in dead tree form (and then in packing boxes), but they should be on their website at http://www.gtcentre.unsw.edu.au.
“In particular, on this interpretation, ministers should be assumed to be aware of any information that has been transmitted to their staff or their Secretary, and responsible for any errors of omission or commission by them.”
Sounds good in theory John, but did I hear somewhere correctly that the PM’s office gets 30,000 cables a week like Ms Moules one? If you have every second public servant wanting to ‘cover their butt’ with any whiff of concern they have about anything, by sending a cable/email, etc, how would your version of ministerial responsibility ever work practically? In a very short time there’d be noone left in the parliament to be ministers.
I think you’re referring to the statement that “”One hundred and thirty thousand cables go to the foreign minister’s office every year.”
That’s a bit over 2000 a week, which certainly implies that Downer would need some staff whose job it was to read cables and alert him to anything important, but doesn’t suggest that a doctrine of responsibility is untenable. Howard’s office would only get the important ones, as in the AWB case.
As a comparison, I typically get 300 emails every week (not to mention blog comments), and manage to deal with them, and this is a subsidiary activity, not my main job.
Having worked in and around ministerial offices for a while, I can offer the following. Typically in a ministerial office the senior adviser/chief of staff would go through the incoming correspondence – letters from the public, from other ministers, departmental briefs, invitations to functions etc – daily and sort out the ones that need to be brought to the minister’s attention. This might be discussed with the more junior staffer responsible for the relevant part of the portfolio to make a more considered assessment of significance. At least twice a week the chief of staff then goes through the assessed important mail with the minister. None of this is recorded anywhere in writing. What happens to an incoming piece of correspondence in terms of record-keeping is that the chief of staff annotates it with instructions (usually in the form of a ticked box) about what is to be done – eg prepare response for minister’s signature, or prepare brief on the issues raised, or departmental officer to respond on behalf of minister. In the case of routine correspondence, this is done without consulting the minister. In the case of significant matters, the chief of staff’s notation in fact represents the minister’s instructions, but there is no record kept of the fact that the minister has seen the correspondence and determined appropriate action. From a departmental point of view, it is implicitly assumed that all instructions from a ministerial staffer, and particularly those from the chief of staff, represent the minister’s wishes.
So in other words, the responsible minister can always deny having seen or been advised about something, but the irresponsible staffer’s instructions to departments are taken as holy writ.
As with most issues in government, genuinely significant decisions are never taken on written advice, and discussions creating what is often an illusory recorded context for those decisions are rarely recorded by participants. This is why governments at federal and state levels like to populate the senior ranks of the bureaucracy with officials who toe the government party line – such people can be relied upon not to keep records or memories of discussions about, say, kids overboard. The lackeys and hacks at the senior levels then convey the instructions about what briefs to write and what policies to recommend down to the troops. A comforting fug of vagueness about who actually decided what and on what basis is easily created by these layers of unrecorded conversations between ministers and staff, and staff and senior bureaucrats. But it is the junior level officers in departments, ie those who know least about the whys and wherefores of policy, who are then held accountable for any lapses in the pret-a-porter recorded ‘advice’ that issues from the system.
Occasionally a dinosaur pining for the days when public service meant, er, public service is foolhardy enough to buck the system by keeping records and remembering the content of discussions with ministers and their staff. Exemplary punishment is meted out to such throwbacks – eg the summary dismissals of Qld Health’s CEO and senior lieutenants who had the temerity to tell the truth – in reponse to a direct question from a Parliamentary committee – about what the minister knew and when he knew it.
Most informative Hal.
The Fug of Vagueness appears to work better than the Cone of Silence as a means of passing on secrets while at the same time protecting the holders of those secrets from the consequences of knowledge of those secrets.
Ministers and their staffs appear to be largely immune to embarrassment for exhibiting the arrogance of executive power.
If the Prime Minister decides to hold the line against demands for resignation, then only fear of electoral consequences for protecting crooks, incompetents and falsifiers of the public record will move him to action.
The verdict of the ballot box is the ultimate sanction against executive arrogance. However, governments today are highly skilled at portraying their breaches of public trust as being in the national interest. And if that fails governments spin their maladministration as being in defence of politically important sectional interests.
Thus the old Whig formulation of the political nation as the legislature representing the public interest suspicious of the propensity of the executive to undermine the rights of the legislature is now more or less defunct.
If this Whig formulation lacks sufficient proponents, both inside and outside the political nation, then the concept of ministerial responsibility is merely a quaint conceit.
Instead, we are left with something akin to Thomas Hobbes’s Leviathan.
And the quicker we stop kidding ourselves about whiggish fables about responsible government, the better.
Indeed. Another consequence of the evolved system is that historians of the future will have nothing of value to find in the archival record. The carefully constructed paper trail now bears little or no resemblance to the factors actually considered in the decision-making process. Keeping of historical data like the video record of GW Bush being advised about the likely damage to New Orleans hours before hurricane Katrina struck would never happen in Australia. Neither are we likely to see ministerial staff appearing before committees of the legislature to answer questions about what and when they knew, as also routinely happens in the US. We seem to have inherited the very worst features of the Northcote-Trevelyan and US systems of public service, and jettisoned the redeeming ones. I think the rot set in with the demise of public service boards around the nation in the late 1980s, subjecting departmental staffing arrangements to much more direct political control. Soon thereafter senior departmental official positions went from permanent to short-term contract, with concomitant boosts to pay and perks, along private sector models.
Prior to Howard, a high proportion of ministerial staff were seconded from departments a la Yes Minister’s Bernard Wooley. This seems to have turned around under Howard and the clone army of Labor premiers, with most positions being filled from outside – particularly from the ranks of party hacks elevated from electorate staff. These ministerial staff are then often recruited to senior public service positions, which seems a hangover from the days when such people were career public servants in the first place. The career prospects of junior career public servants have been drastically truncated as a result, and we have developed a class of partisan political appointees at senor bureaucratic levels – like the US but with no oversight by the legislature or formal acknowledgement that it exists.
Hal, you paint a depressing picture. In some way this is related to electoral accountability.
If the scale goes from Leviathan authority to Whig responsibility, perhaps the position on that scale would mainly depend (in Australia) on whether or not the government party has a majority in the upper house.
Increased accountability involves a passing of power from the politicians to the people. Why ever would politicians, who are professional power brokers, do such a thing? Logic and experience tell us they do everything they can to reduce popular power. Why would a majority in a legislature stick up their hands and say “aye� to relinquishing power to the people? JQ says, “The only hope… is policy by the Opposition and implemented immediately after an election victory…� but that is overly pessimistic. For example, a minor party “balance of power� holder in the upper house can achieve reform if it is prepared to “do deals�.
In general, I think a majority in the legislature votes to transfer power to the people when a particular circumstance prevails, namely when it sees it can take some modicum of power away from the minority, and yet (for some reason) it is not able to actually take that power for itself. So it gives the power to the people rather than leaving it with minority.
To my mind this is the systemic explanation for the improvements in democracy (in the West) which have occurred over the last 150 years.
“Why ever would politicians, who are professional power brokers, do such a thing? Logic and experience tell us they do everything they can to reduce popular power. Why would a majority in a legislature stick up their hands and say “ayeâ€? to relinquishing power to the people?”
I’m feeling your pain Mike, but the problem lies in your observation (a correct one in my opinion) that politicians are “power brokers”.
Under Whig theory, elected representatives of the people stand up to executive power. Under Australian practice, elected representatives are proxies for the executive.
Nothing short of a cultural revolution that entailed the majority of the voters of Australia rethinking their relationship with executive government and rethinking their expectations of their elected representatives will bring about change that is welcome to you.
Thus, the Australian electorate is complicit in the enormous power of executive government. This is what the people want.
No Katz. I have no pain. It may be my faulty expresssion but you have surely misunderstood me.
I do not know if there ever was this worthy culture you speak of. I assume pollies are necessarily professional power brokers, that they’d never get there if they weren’t. It was more an observation than a criticism. I suggested that there is a systemic mechanism, broader and more optimistic than the one advance by JQ, to account for how such people nevertheless do give away power (without a culture change).
It is not a common event and yet there are many, many instances. For example in a couple of hundred legislatures (100 in the USA, 100 elsewhere) over the last 150 years or so a majority has voted on several occasions to advance the rectitude of the electoral system – franchise, boundaries, general design. Each time they gave away power to the people.
Each occasion was painful to the pollies, sometimes exceedingly so. Very often they thumped their chests and boasted of an extension of democracy but that was rhetoric. What they were really doing was getting the jump on rival politicians but in a situation (a coalition perhaps) that precluded actually snaffling for themselves the power they were wresting from the rivals.
“Each occasion was painful to the pollies, sometimes exceedingly so.”
Doubtless filthy politics as usual operated behind the rhetoric of reform. This is particularly true of the Reform Act of 1867. Disraeli played a very cynical game.
However, not all politicians were averse to extending the popular franchise. The Whigs were principled supporters. The Tories led by Disraeli, on the other hand, played “chicken” with their opponents.
And there was considerable political pressure for reform. To oppose it outright invited popular dissatisfaction.
It is true that the voters did not bring about systemic change in Britain. Popular franchise proved to be a damp squib. This was unexpected to most, with the exception of Disraeli.
The point is, however, that Tories feared change and Whigs welcomed it — therefore no uninamity in the response of “pollies” a condition necessitated by your formulation quoted above.
This situation was neither “worthy” nor “unworthy”. It simply speaks to the reality of the consciousness of the conflict between the executive and legislative branches of the political nation.
Katz
“therefore no uninamity in the response of “polliesâ€? a condition necessitated by your formulation quoted above.”
I don’t know what you mean. I don’t postulate any unanimity. I also don’t know how to interpret “played chicken”.
Disraeli’s aim was to get the jump on the Whigs – right? If so, it’s a confirming instance of what I was saying. He didn’t want to do it but he thought it would be better for the Tories if he did it than if he didn’t.
I think Bismarck, on the same side of politics, did much the same thing at much the same time for the same reason: to outmanouvre political rivals.
If they are confirming cases, then Disraeli and Bismarck perceived some power in their political enemies and saw that the only way they could undermine this power was to give power to the people.
“Disraeli’s aim was to get the jump on the Whigs – right? If so, it’s a confirming instance of what I was saying. He didn’t want to do it but he thought it would be better for the Tories if he did it than if he didn’t.”
But the point is that there was a critical mass of Whig parliamentarians who did want the change.
If those folks hadn’t existed then Disraeli would have been extremely unlikely to have supported any reform.
Thus the efficient reason for the coming of reform in 1867 was the power of the opposition Whigs, not the premiership of the Tory Disraeli.
Bismarck may well have learned from Disraeli, but it would be incorrect to assert that British political culture and German political culture were closely related. German liberalism was notoriously weak and stunted, and remained so at least until after the end of WWII.
The notion of “loyal opposition” had little traction in nineteenth-century German political thought. Subrtact that notion from political culture and you have a very Hobbesian political environment.
Reforms like Freedom-of-Information legislation, which have become a feature in many Western democracies since the 1970s serve as a check on the executive.
I agree with Hal that the status of responsible government is very dubious in Australia. However, it is a left-handed compliment to Australians that the Howard government still feels compelled to lie or at least to prevaricate.
This suggests that the the government believes there are limits to the tolerance that Australians have for executive arrogance.
It’s curious, Katz.
You are not understanding what I have tried to say. You are just not understanding it. For example your first three paras here are irrelevant. They are not germane.
If the German political culture was very different and yet the same thing occurred there (ie the pollies gave power to the people) then any explanation that includes the English Whigs cannot possibly be the general explanation as to why pollies give away power. It may be a/the particular explanation but it cannot be the general one.
The problem is how accountability can be increased. Which is a problem of how the pollies can give away power to the people. Disraeli and Bismarck are two among thousands (?) of cases. Under what conditions do men whose whole lives are dedicated to accumulating and holding power, give it away to the people?
They are obviously extremely reluctant and in those three posts I offered an explanation which involves a quite peculiar circumstance.
Looking through your posts I think you have some view that public dissatisfaction plays a role. Well, sometimes – like the Whigs or any other particular thing. But in general not. Most shifts of power from pollies to the people have occurred without the people even knowing about it.
Mike,
I think the missed connection began here:
“Why ever would politicians, who are professional power brokers, do such a thing? Logic and experience tell us they do everything they can to reduce popular power.”
I thought that this was a throwaway line. But your repetition of the sentiment indicates to me that you believe it.
It is a broad, but baseless, generalisation.
Politicians come in many shapes:
Some, like Bismarck, owe their first allegiance to executive power.
Some, like Disraeli, owe their first allegiance to some definition or another of constitutionalism.
Some, like Jefferson, owe their first allegiance to some definition or another of popular sovereignty.
Some (perhaps many) are simply self-interested placemen.
Thus there is no single explanation of politicians’ motivations.
“Politics as usual” attracts conservatives or the principled, authoritarian, or self-interested sort.
But every now and then, when conditions are right, proponents of some definition of popular sovereignty attain influence and shift the political culture toward representativeness and responsibility.
You say:
“Most shifts of power from pollies to the people have occurred without the people even knowing about it.”
I’d like to know of one case when no people knew about such a shift.
“proponents of some definition of popular sovereignty attain influence and shift the political culture toward representativeness and responsibility.”
Garbage. Fatuous faith.
“I’d like to know of one case when no people knew about such a shift.”
Rewriting this misquote to “…when the people did not know…”
There are hundreds of them. Virtually all improvements to electoral systems. Maybe thousands – I said it already. The public don’t understand it and aren’t interested. There might be somewhere an exception (I can’t think of any) but this improvement to democracy is for afficionados only.
When Victoria changed its upper house to PR I remember Terry Lane moaning that it got only a small entry in the middle of the newspaper. This will change the governance of the state as it has changed other places. It is a BIG democratisation but the public wouldn’t have a clue.
You think Bracks did this motivated by a desire for popular sovereignty? Ludicrous.
1. But by definition Terry Lane knew. QED
2. There are several types of politician. Bracks may be of the type not motivated by a desire for popular sovereignty. So What?
Actually Katz, I’d like to know of any case where power was devolved to the people and it did not give (or look like giving) an advantage to the legislative majority which voted for it.
Easy MP,
Amongst many:
In the 1870s the Japanese aristocacy abolished themselves as a class.
Commonwealth Aboriginal enfranchisement, 1962.
(Queensland, habitually dilatory in such matters, enfranchised Aborigines in 1965.)
F W de Klerk’s abolition of Apartheid, supported by the South African National Party
Various votes in Post-Saddam Iraq. These votes, held under US scrutiny, have returned a pro-Iran theocratic majority.
The first Reform Act actually reduced the franchise in some parts of the West Country, where it had been inherited and did not rest on a property qualification for the actual voter (even though he had to have had a wealthy ancestor to have obtained the freedom of whichever borough in the first place). The imposed uniformity of Reform Acts generally reduced actual and effective democracy, e.g. by eliminating multi-member constituencies.
I believe the British 19th century electoral reform process, tending to enlarge the franchise generally but indifferent to actual voters (e.g in disqualifying some), was driven by an analogue of agency costs encouraging a dilution of equity. That’s quite regardless of any pure motives of spokesmen, rather the fact that it went through despite being apparently against existing vested interests. The answer is that it was against the interests of existing voters, but not of representatives. I see the same tendency at work today, in matters of immigration policy.
Note that this internal dynamic has nothing to do with whether any of the developments are right or wrong, in either an ethical or pragmatic sense.
The Scottish parliament abolished itself in the 1700s.
Yes, PML, that’s why I didn’t use the First Reform Act as an example.
Let’s skirt the serpentine entanglements involved with measuring “actual and effective democracy” (whatever that is).
It is unarguable that the First Reform Act established forever in its abolition of rotten boroughs that SOMEONE had to elect MPs to the House of Commons.
This is a not inconsiderable advance for the principle of popular sovereignty.
Well, interesting. Thanks.
The examples be a lot more persuasive if they were not so weird. Of all the hundreds and hundreds of hum-drum improvements to democracy in the last 150 years in the West, you have to come up with these things. I admit I don’t see that my thesis should not apply to them but I don’t know anything about them so I can’t judge. And I don’t know that any of them would be models of greater accountability that JQ started this discussion with.
Just a quick run through:
I’ll have to take your word for the Jap aristocracy. If you’re right then they were noble high principle types – an exception to my rule.
The Aboriginal enfranchisement didn’t cost the pollies any power – it just made them look good (like giving the women the vote).
Did FW have a real choice or was it his shrewdest option? I don’t know.
If the pollies of Iraq are acting altrustically I can only say how wonderful. You know, I don’t.
Ditto the Scottish parlt in 1700. You want to submit the case of the Qld upper house abolishing itself in 1922? Bet you don’t. Swedish upper house? Danish upper house? NZ upper house?
Here in Australia, where there are good records, and no war, our parliaments have given away power on – what? – 100 distinct occasions over the last 150 years? Maybe more. Electoral improvement, FOI, ombudsman and probably others where the pollies lose power and the people gain it.
Prominent examples would be making those five upper houses PR since 1949.
I say that in all cases they did the deed because the parliamentary majority that voted for it saw political advantage over the minority which voted against. All of them. None of them did it because they wanted to improve democracy or give away power.
Essentially they always did it to maximise power, usually through gritted teeth, but seeing it as their least-worst option.
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