Burns’ Big Blue

[republished from today’s Northern Territory News]

The political wash-up from the recent coronial inquest into the death of Margaret Winter at Royal Darwin Hospital in December 2006 is proving messy indeed. Claims this week by Health Minister Chris Burns that he was lied to by his own department about the reasons for a shortage of nurses at RDH might end up being seen as one of the biggest political mistakes ever made in NT politics.

To understand why its necessary to know some recent political history. The CLP began the week demanding that Minister Burns resign because of serious mismanagement at senior levels of the Health Department revealed by Coroner Greg Cavanagh. The demand was never going to be met.

In Australia, Ministers are only expected to resign for serious personal misbehaviour, or misleading Parliament and failing to correct it at the first available opportunity. Worse still is misleading and embarrassing ones own Parliamentary Leader, as new NSW Police Minister Matt Brown discovered this week. He wasnt sacked for allegedly semi-naked simulated sex acts with a female MLA colleague at a post-budget shindig, but for telling porkies about it to Premier Nathan Rees.

However, the Australian version of Westminster democracy has never included an expectation that Ministers must carry the can and resign because of serious shortcomings in the administration of their department, at least in the absence of direct Ministerial complicity. That was once the convention in the UK, but even in Britain it has long been honoured mostly in the breach.

Australian governments at both federal and state levels long ago put in place mechanisms designed to ensure that senior public servants could be counted on to remain silent, avoid implicating the Minister and loyally implement the governing partys policies while keeping their departments firmly in line.

In 1984 the Hawke Labor government implemented public sector reforms which created the Senior Executive Service. The secure permanent employment conditions of senior public servants were replaced by a performance-based structure where sacking was much easier and the Ministers power over his department greatly enhanced. The reforms were touted at the time as intended to strengthen transparency and accountability to the public. The real purpose was to remove the ability of conservative Public Service Mandarins to engage in Yes Minister-style obstruction of government programs and ensure as far as possible that departments didnt embarrass their Minister by giving politically inconvenient advice.

The SES model was subsequently adopted in all States and Territories including the NT. It has certainly resulted in the public service being less obstructive, but has also seen creeping politicization of senior public service ranks.

Executive level public servants are expected to possess mental antennae finely attuned to the political needs of the government of the day. This not only includes giving the sort of advice the Minister wants to receive, but also understanding what advice not to give and what facts it would be best for the Minister not to know to avoid possible public embarrassment. Ministers can then adopt a strategy of plausible deniability if politically embarrassing facts or developments later become public knowledge.

This Orwellian phenomenon was farcically emphasized in the wake of the Children Overboard saga, where PM John Howard was able to continue demonizing boat people to great political effect throughout the 2001 federal election. When it later emerged that no children had in fact been thrown overboard at all, Howard and his fellow Ministers were able to deny that they knew anything about it even though just about all public servants and ministerial advisers had been told within a couple of days. The public servants understood that this was information the Minister didnt need to know, and that telling him would be a very bad career move.

The events surrounding the Australian Wheat Board scandal similarly demonstrated the workings of plausible deniability. Many public servants knew or suspected that the AWB was paying bribes to the Saddam Hussein regime in Iraq, but they all knew that this was information Foreign Minister Alexander Downer and Trade Minister Mark Vaile definitely didnt want to know.

However, the game of plausible deniability only works if the senior public servants know that they will be protected and not scapegoated for keeping quiet and covering the Ministers backside, especially when a situation comes under sustained public scrutiny. John Howard always played a dead bat in such situations, scrupulously avoiding criticism or punishment of the departments and public servants concerned and sticking with bland protestations of Ministerial ignorance.

Public servants, even on insecure SES contracts, are hardly likely to carry the can for doing exactly what the Minister (implicitly) wants if they know the Minister will use them as a sacrificial lamb if anything goes wrong. Indeed several of the federal public servants who failed to inform their Ministers about Children Overboard and AWB were subsequently quietly rewarded with promotion.

NT Health Minister Chris Burns has acted quite differently, even though there is little doubt that senior Health Department bureaucrats were acting in general terms in accordance with the Ministers interests and implicit wishes. The Health budget is perennially in danger of blowing out, and the Ministerial career of Burns predecessor Jane Aagaard was prematurely terminated after she failed to control a multi-million dollar Health budget blowout in 2002-3. Moreover, salaries are by far the largest component of the Health budget, and controlling the salary bill is the only feasible way of preventing health budget blowouts. It would no doubt have seemed politically safer to keep a cap on the nurses wage bill than that of doctors. It was safer still for the Minister not to know that his senior public servants were keeping him insulated from Jane Aagaards fate by sitting on job applications from new nurses and leaving the Minister free to keep claiming that the nursing shortage resulted from the Departments inability to recruit enough of them.

By allowing his Departmental CEO to accept the resignation of Peter Campos (the officer who sat on the nurses job applications) and by claiming aggressively in Parliament that his departmental officers had lied to him, Minister Burns has metaphorically torn up the unwritten rules that allow plausible deniability to work in the interests of the government of the day (if not the rest of us Territorians).

The short-term result is likely to be extreme anger in senior public service ranks and a decreased willingness to protect Ministers backsides. The longer term outcome may well see a dramatic increase in the number of anonymous but politically embarrassing leaks to the media. Thats why Burns actions may end up being seen as one of the biggest political mistakes ever made in Territory politics.

The willingness of former RDH Director of Nursing Professor Di Brown to publicly accuse both Burns and former Chief Minister Clare Martin of fobbing her off when she tried to tell them about the RDH nursing crisis may well be the first shot in the war Burns has unwittingly declared between the Labor government and the NT Public Service.

About Ken Parish

Ken Parish is a legal academic, with research areas in public law (constitutional and administrative law), civil procedure and teaching & learning theory and practice. He has been a legal academic for almost 20 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in the early 1990s.
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clarencegirl
13 years ago

Nice to see public servants publicly biting back and not relying on the usual anonymous leak to get the info out! A little transparency is refreshing.

marks
marks
13 years ago

All very well as long as:

“…there is little doubt that senior Health Department bureaucrats were acting in general terms in accordance with the Ministers interests and implicit wishes….”

But whether that is so or not is one thing that will come out in the wash.

Next, given that the NT is rather small and info gets round by word of mouth. Is there any evidence of:

“…extreme anger in senior public service ranks and a decreased willingness to protect Ministers backsides….”?

Because if the outcome of this is a decreased willingness to protect Ministers’ backsides, it might be a very good one for the NT.

There is of course the possibility that some senior public servants maybe ‘overestimate’ the need to protect Ministerial posteriors, and maybe, just maybe some Ministers actually do want to do their job. I know it is not fashionable to say that Ministers sometimes actually do want to do their job, and if there is a problem, they might want to know about it so they can help fix it.

Not all pollies are as venal as the article suggests. Jusst human beings like the rest of us.

I should say at this point that I have met Dr Burns several times (although not in any health related field), and he struck me as being honest and hard working, and was someone looking out for problems rather than ducking them.

Sinclair Davidson
13 years ago

Is this such a bad thing? I have been thinking recently that not enough (if any) politicians or public servants end up going to jail. Fewer cover-ups and more accountability would result in fewer stuff-ups and, ultimately, less government.

Nicholas Gruen
Admin
Nicholas Gruen(@nicholas-gruen)
13 years ago

Ken,

Very interesting. Great post.

In contrast, my only contribution is a bit of quibbling.

However, the Australian version of Westminster democracy has never included an expectation that Ministers must carry the can and resign because of serious shortcomings in the administration of their department, at least in the absence of direct Ministerial complicity

I can’t quote chapter and verse, but I think the word ‘never’ is pretty brave. I would have thought this was the convention in Australia and the UK until around the 1970s.

In 1984 the Hawke Labor government implemented public sector reforms. . . . The[ir] real purpose was to remove the ability of conservative Public Service Mandarins to engage in Yes Minister-style obstruction of government programs and ensure as far as possible that departments didnt embarrass their Minister by giving politically inconvenient advice.

I don’t believe that. Firstly it could be read to imply that there was something worthy about the service they inherited. I don’t think pretty much complete security of tenure for senior public servants unless they can be convicted of misbehaviour is tenable. Secondly the Hawke Govt had no problem that I can think of with advice with which they didn’t agree, though no doubt they wouldn’t have wanted it leaked.

You’re projecting and generalising the instincts of the Howard Govt back where it doesn’t belong. I’m happy to be corrected, but ‘plausible deniability’ didn’t emerge as a major means of managing government until Honest John took the reins.

JC
JC
13 years ago

At present the balance is far too heavily skewed in favour of an almost all-powerful political executive.

But isn’t that what you want though and at least it’s more honest. Any party that forms government ought, like in the American system, get to choose the important slots in the executive they want.

Exactly how one would go about constructing a system of governance that provieds adequate checks and balances to ensure accountability and a reasonable level of transparency, while still retaining the elected governments ability to implement its policies effectively, is a fascinating question which we should workshop one day at Troppo or elsewhere.

Which is the weakness of the present system where the heads of the executive are also the political leaders.

Nicholas Gruen
Admin
Nicholas Gruen(@nicholas-gruen)
13 years ago

Ken,

Governing for it’s own sake is alive and well in Victoria I assure you – though the Victorians have a better government than most – as they did when Kennett was in power. (Perhaps this has something to do with the fact that Victoria has started out performing NSW economically. Who knows? One would have thought that NSW had all the advantages with its greater population and lower level of exposure to manufacturing.)

But that’s different from asking public servants not to give you their best advice, something you’ve got little to fear if it doesn’t leak and much to gain from. Kennett didn’t want the advice he wanted to hear from his bureaucrats. He wanted the best advice they could provide and then he’d decide whether or not to take it.

John Hasenkam
John Hasenkam
13 years ago

Now come on, cover ups are common. I know of another death at that hospital where the management clearly attempted to cover up the staff shortfalls. In fact there was some evidence to suggest they were trying to scapegoat one of the staff. The minister cannot be held responsible because hospital management was lying to upstairs. This is so much like the Doctor Death fiasco at Bundaberg. Sinclair is right, jail the public servants.

John Hasenkam
John Hasenkam
13 years ago

Exactly how one would go about constructing a system of governance that provieds adequate checks and balances to ensure accountability and a reasonable level of transparency, while still retaining the elected governments ability to implement its policies effectively, is a fascinating question which we should workshop one day at Troppo or elsewhere.

One of the first things we have to do there is reward whistleblowers. Must be substantial and real, not a medal or crap like that. Money, promotions, that sort of thing.

marks
marks
13 years ago

The first thing might be simply to ensure that whistleblowers (acting in good faith) should not be persecuted.

Rewards of any type would be icing on the cake.

derrida derider
derrida derider
13 years ago

“Public servants, even on insecure SES contracts, are hardly likely to carry the can for doing exactly what the Minister (implicitly) wants if they know the Minister will use them as a sacrificial lamb if anything goes wrong.”

My goodness, no. That’s what Ministerial advisers are for.

Bailey's Mother
Bailey's Mother
13 years ago

“He had only held the Health portfolio for a couple of months at that time, having inherited it from Marion Scrymgour…”

Are you sure Marion Scrymgour ever held the Health portfolio, Ken? She certainly inherited Family Services and Disability and Seniors from Jane Aagard when appointed to cabinet in 2004 but Health?

marks
marks
13 years ago

Sorry about this, my memory must also be going.

Isn’t the difference here (say from ‘kiddies going overboard for a swim’) the fact that there has already been a coronial inquest? And did not that inquest name names None of which started with Bur**?

So was not Burns in a significantly different position because, in effect, the Coroner had aready pointed the finger and concluded who was at fault.

Personally, I think Burns would have been better to adopt the approach that ‘the Coroner has spoken, pointed out where the deficiencies lie, and I’m a’gonna fix it all for ye’.

wanderer
13 years ago

As clumsy as Dr. Burns was, there are two other issues worth noting. Firstly, capping salaries is an unsatisfactroy was of controlling a health budget blowout, as this case shows. Curtailing services is the safer way. Perhaps Darwin is too small for this tactic. Secondly, it seems that Prof Brown approached Dr Burns, and was ‘fobbed off’, at the weekend markets, which suggests at the least, the proper communication lines had broken down. A messy affair indeed.