Shining a light in the basement attic of responsible government

Justin Madden – boofhead, retired AFL hero, Labor Minister and perhaps soon to be unwitting definer of the bounds of Westminster democracy

A dispute has arisen in Victoria’s Upper House of Parliament which seems to show some promise of throwing legal light on a dim aspect of Australia’s evolved version of Westminster responsible government, namely whether and to what extent an Upper House can compel a Ministerial officer to give evidence.

Before explaining why the answer to that question remains obscure, although many would imagine it should be clear and long-settled, the context in which the issue arises is explained in an article in The Age yesterday:

An inquiry on the planning process behind the Windsor Hotel redevelopment descended into farce yesterday after Planning Minister Justin Madden tried to appear without being invited.

Sitting in a seat reserved for his former media adviser, Peta Duke, whom the committee had subpoenaed, Mr Madden attempted to answer questions on her behalf.

”Excuse me, chair, I’m the responsible minister and I’m prepared to answer questions today,” he told the inquiry.

But committee chairman Gordon Rich-Phillips wanted to have a closed-door discussion about whether to hear from Mr Madden.

There was some loud disagreement among the committee before Labor MP Matt Viney shouted: ”You want to close this down and have a secret hearing so you can have your … McCarthyist witch-hunt.” Opposition MPs then walked out.

Outside, Mr Madden denied he had provoked the breakdown, saying it was appropriate for him to answer questions on behalf of his staff.

The inquiry, instigated by the upper house Finance and Public Administration Committee, is investigating the Windsor Hotel planning approval process after a media plan written by Ms Duke was accidentally emailed to the ABC.

The plan outlined a strategy to manipulate public opinion to help the government halt the proposed $260 million redevelopment of the Windsor. A development application was lodged last year and is under consideration. Mr Madden has said Ms Duke came up with the plan and that it was wrong, leading him to remove her from his office.

You can readily see why the Opposition is interested in exploring the issue.  Moreover I suspect most thoughtful political observers would think the matter is one of genuine public interest and importance.  Was this just a hare-brained scheme hatched by a renegade ministerial staffer?  Or was there a strategy endorsed by the Planning Minister to subvert the planning process for which he is responsible by orchestrating public opinion?  Obviously the Minister would deny the latter interpretation (although interestingly he hasn’t yet done so, at least judging by his words quoted in The Age article), hence the upper house committee’s enthusiasm to see what the sacked ministerial staffer might have to say.

The Brumby government’s response to this upper house committee is the standard one exemplified by other federal and state governments:

[Madden] defended Ms Duke’s decision not to answer the committee’s subpoena, saying Attorney-General Rob Hulls had directed her to stay away.

Mr Hulls said the subpoena breached parliamentary conventions and called the inquiry a ”tawdry political stunt”. ”As Attorney-General, I am standing up for the conventions of Parliament and for the principles of natural justice,” he said.

Similarly, the Greens members of the committee exemplify a typical Opposition stance:

Greens MP and committee member Greg Barber said Ms Duke may have to be ”dragged” in front of the committee. ”Our legal advice says there is no question Parliament can demand any document, person or thing,” he said.

Similarly opposed stances were taken federally when a similar issue of compellability of ministerial staffers arose during the Senate inquiry into the “children overboard” affair under the Howard government, albeit with the major parties’ respective stances opportunistically reversed:

A spokesman for the Prime Minister, John Howard, says the normal arrangements for Senate select committees will apply.

The Opposition and minor parties are keen to question two staff in the former defence minister Peter Reith’s office, his media adviser and his military adviser.

The Government’s decision also exempts the Prime Minister’s foreign affairs adviser Miles Jordana.

During the election campaign, Mr Jordana was told of doubts over photographs that had been released and was given defence and foreign affairs information on the matter.

The spokesman says it is normal practice not to allow staff of MP’s to appear before Senate inquiries.

Then Opposition spokesperson John Faulkner adopted the position the Libs and Greens are currently pursuing in Victoria:

“The powers of a Senate select committee are very strong in this regard,” [Faulkner] said.

“I do think such a committee I think it’s unarguable that such a Senate select committee does have power to subpoena witnesses.”

However, while Faulkner struck a pugnacious pose, Labor didn’t ultimately press the point during “children overboard”, an outcome Faulkner foreshadowed at the time:

The Federal Opposition says Senate powers to subpoena ministerial staff to answer questions on the child overboard affair will only be used as a last resort.

Committee member and Labor Senator John Faulkner says legal processes will be only be used if other means fail.

Of course, all other means did fail, in that it was never established exactly what Ministers knew or when they knew it, but Labor never proceeded to the “last resort” of forcing Miles Jordana et al to give evidence. At least at federal level, both Labor and the Coalition operate on a Mutually Assured Destruction approach to Senate powers: they each avoid establishing a precedent for forcing ministerial staffers to give evidence lest it later be used against them when they’re in government.

Fortunately their State colleagues have occasionally been less restrained in looking to the long term consequences of inflicting short-term political pain on an opponent.  That’s how Australian constitutional law came to acquire the only two relevant court decisions on the extent of upper house powers.  Egan v Willis (1998 High Court) and Egan v Chadwick (1999 NSW Court of  Appeal) both arose from a Mexican stand-off between the Carr Labor government and an Upper House it didn’t control.

Upper House Minister Michael Egan was required by the Legislative Council to produce government documents but refused, was ejected from Parliament and sued in trespass, claiming that the upper house didn’t have the constitutional power to require him to produce documents (and that therefore ejecting him from Parliament was an actionable trespass). The High Court held that the Legislative Council prima facie did have the power to require a Minister to produce documents, rejecting a Carr government argument that the Westminster doctrine of responsible government required ministerial responsibility/accountability only to the lower house where governments are made and unmade.  The High Court ruled that ministerial accountability was to Parliament as a whole, and that upper houses had always performed a role in requiring production of government documents and the like.

However, the High Court did not determine what might be the legal outcome if a Minister claimed some form of evidentiary privilege from disclosure, most likely Cabinet immunity, or the slightly less exclusionary Crown privilege (now more commonly called public interest immunity), or even legal professional privilege.  Egan attempted to claim all three of these privileges, and it was those claims that were heard and determined by the Court of Appeal in Egan v Chadwick.

I won’t explain the way the Court disposed of Egan’s  claim to legal professional privilege here, because it isn’t relevant to the current situation in Victoria.  Nor is the issue of Cabinet immunity strictly relevant either in the present situation (because the document Ms Duke prepared isn’t a Cabinet document on any view), but you need to understand it to comprehend the broader  legal/constitutional issue.  On Cabinet immunity, the Court drew a distinction between documents that disclosed the actual discussion and proceedings in Cabinet, which were absolutely immune from disclosure, and other “Cabinet documents” like briefing papers prepared to inform Cabinet about matters it needed to decide.  It was held that the latter type of document should, like public interest immunity claims generally, be subjected by the Court to a “weighing” exercise between the public interest in disclosure in the particular situation and the public interest in maintaining the confidentiality of documents prepared to inform Cabinet deliberations.

That sort of weighing exercise would not always lead to a decision in favour of disclosure.  Cabinet briefing papers generally outline a range of possible policy options for consideration.  Most of them typically never receive any but the most cursory consideration by Cabinet and only one is actually adopted.  However, if disclosure is ordered, Oppositions can always be counted on to attempt to whip up a scare campaign in an endeavour to convince gullible voters that the government has a “secret plan” to introduce the rejected measures at some later stage.  Hence the public interest on balance might well militate against disclosure of documents of that sort lest public confusion be needlessly created and effective Cabinet government impeded.

However, the evidence sought in the current Victorian situation is not of that type.  We already know what the document Ms Duke prepared says, because someone accidentally sent it to the ABC.  What we don’t know is whether it outlines a strategy that the Minister himself knew about and endorsed.  It seems unlikely that sort of information would be the subject of a successful claim of public interest immunity.

However, both Egan v Willis and Egan v Chadwick were about whether production of government documents could be compelled by an upper house. They didn’t concern the current situation of whether a ministerial staffer can be compelled to give oral evidence before an upper house committee.  They do, however, contain some general propositions that might help us to make an educated guess.

In Egan v Willis, Gaudron, Gummow and Hayne JJ emphasised the centrality of “accepted precedent” in determining the scope of upper house powers:

… the long practice since 1856 with respect to the production to the Council of State papers, together with the provision in Standing Order 29 for the putting to Ministers of questions relating to public affairs and the convention and parliamentary practice with respect to the representation in the Legislative Council by a Minister in respect of portfolios held by members of the Legislative Assembly, are significant. What is `reasonably necessary’ at any time for the `proper exercise’ of the `functions’ of the Legislative Council is to be understood by reference to what, at the time in question, have come to be conventional practices established and mentioned by the Legislative Council.

Given that Oppositions have not until now attempted to press the point on subpoenaing ministerial staffers and that governments have never conceded that point, it must be regarded as somewhat doubtful whether upper house powers extend that far.((For clarity, it’s clear that upper houses have the power to subpoena witnesses generally, and that probably includes ministerial staffers even though no federal or state government has ever conceded that. What is more doubtful is whether the power extends to compelling a ministerial staffer to answer questions about what advice she gave the Minister and what his response might have been. One can make a plausible argument that compelling such answers is inimical to responsible government, which requires Ministers to be able to receive advice in confidence and deliberate about that advice without a court or the Opposition looking over the Minister’s shoulder. In Egan v Chadwick the Court remarked in that regard: “However, in my opinion, it is not reasonably necessary for the proper exercise of the functions of the Legislative Council to call for documents the production of which would conflict with the doctrine of ministerial responsibility, either in its individual or collective dimension. The power is itself, in significant degree, derived from that doctrine. The existence of an inconsistency or conflict constitutes a qualification on the power itself.” ~ KP))  Moreover, courts have always tended for good democratic reasons to be very reticent about ruling on parliamentary powers and privileges.

On the other hand, Gaudron, Gummow and Hayne JJ also said:

A system of responsible government traditionally has been considered to encompass “the means by which Parliament brings the Executive to account” so that “the Executive’s primary responsibility in its prosecution of government is owed to Parliament”. The point was made by Mill, writing in 1861, who spoke of the task of the legislature “to watch and control the government: to throw the light of publicity on its acts”. It has been said of the contemporary position in Australia that, whilst “the primary role of Parliament is to pass laws, it also has important functions to question and criticise government on behalf of the people” and that “to secure accountability of government activity is the very essence of responsible government”.  …

One aspect of responsible government is that Ministers may be members of either House of a bicameral legislature and liable to the scrutiny of that chamber in respect of the conduct of the executive branch of government. Another aspect of responsible government, perhaps the best known, is that the ministry must command the support of the lower House of a bicameral legislature upon confidence motions. The circumstance that Ministers are not members of a chamber in which the fate of administration is determined in this way does not have the consequence that the first aspect of responsible government mentioned above does not apply to them. Nor is it a determinative consideration that the political party or parties, from members of which the administration has been formed, “controls” the lower but not the upper chamber. Rather, there may be much to be said for the view that it is such a state of affairs which assists the attainment of the object of responsible government of which Mill spoke in 1861.

Application of this accountability approach might lead to the conclusion that ministerial staffers should be regarded as compellable to give evidence before an upper house inquiry, at least in some circumstances. It is difficult to conceive of a more stark case than the current one in Victoria, where the question is whether or not a Minister is complicit in a political strategy to undermine the proper and regular functioning of his own portfolio responsibilities entrusted to him by Parliament.  Madden will certainly persist in the Sergeant Schultz defence, so that evidence from former Madden staffer Ms Duke might be the only way democratic accountability can ever be achieved.

Afterthought – Like the better known constitutional lacuna flowing from reserve powers and highlighted by the Whitlam dismissal in 1975, the drastic uncertainty surrounding the powers of upper houses (both federally and at state level) illustrates that the truism about Australia’s constitutional system – “if it ain’t broke why fix it? – is dangerously complacent and seriously misconceived.

What would happen if Peta Duke continues to obey the Attorney-General’s direction not to answer the upper house’s subpoena?  Could the upper house send its presiding officer to arrest her and bring her before the Legislative Council?  What if she continued to refuse to answer questions?  Would the Legislative Council resolve to imprison her for contempt?  What would the government-controlled Legislative Assembly then do? Pass a resolution declaring the Legislative Council’s action to be unlawful and send its presiding officer to release her?  What would the Governor then do?  Decide that the government is acting unlawfully and exercise reserve powers to dismiss it?

Existing constitutional law and practice simply don’t provide the answers to any of these questions.  Moreover, the events bear more than a passing similarity to those in Britain in 1839-40 in the series of cases known as Stockdale v Hansard, except that they involved a stand-off between parliament and the courts rather than between the two houses of parliament.  Anyone who thinks that such constitutional crises can’t happen is ignorant of history.  It would be a brave person who would be utterly confident that Tony “Mad Monk” Abbott wouldn’t push the political envelope of Senate powers beyond breaking point if he stays Opposition Leader for long enough to get the chance.

The British system of responsible government works (or has done historically) for two main reasons: (a) the political classes have at least until recent times been sufficiently homogeneous, even since the advent of Labor, that they could always count on the fact that they were ultimately thoroughly decent English chaps who would negotiate a workable compromise when push came to shove; and (b) if they couldn’t then the Monarch would intervene and sort it out for them and they’d live with the result.  Neither of those fail-safe assumptions necessarily apply in Australia’s modern political system. …

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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Nicholas Gruen
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Nicholas Gruen(@nicholas-gruen)
11 years ago

At least at federal level, both Labor and the Coalition operate on a Mutually Assured Destruction approach to Senate powers: they each avoid establishing a precedent for forcing ministerial staffers to give evidence lest it later be used against them when they’re in government.

We’ll see Ken. My guess is that conservatives will be the first to break this convention. They’re more relaxed about such things. Always have been. Always will be.

Paul Frijters
Paul Frijters
11 years ago

hmmm, all this is heavy legal stuff for a mere economist, but if I get you correctly you are essentially saying that parliaments could make life much more difficult for ministers and their staff than it is at present, and that they refrain from doing so because of reciprocal relations between the major political parties. Surely this can only work if behind the scenes the political parties do share the information that would come into the limelight, allowing them to make the judgement call that each individual case simply does not have enough short-term political gain to warrant the break-up of the reciprocal relation? If there wouldnt be this behind the scenes revelation it would seem too tempting not to break the convention. Is there any knowledge on whether such an information safety valve indeed exists?