Every now and again I’m asked to contribute to The Mandarin as part of their Brains Trust. Here’s my latest contribution in seeking to answer this question:
Where is the boundary between their designated public duty and the apparent expectation by some ministers that it’s ok for public funds to be spent on political objectives like garnering votes for pre-selections or funding programs skewed to marginal seats?
“The principles are fairly straightforward at least in principle. Political staffers act for the minister and the minister should be accountable for staffers’ actions. This follows from the basic common law principle that principals are responsible for those who act as their agents. Sadly, for decades now, there’s been a tacit bipartisan agreement to leave things as they are. This effectively prevents any effective accountability regime being established over staffers. And over time this is increasingly degrading the accountability of ministers who are increasingly using their staff as deniable ministerial proxies.
“Regarding public servants, they should assist their political masters administer programs including exercising their ministerial discretion according to law. They should obviously not be drawn into assisting them to exercise that discretion in politically partisan ways, and it is likely that this would be beyond ministers’ power under the legislation they administer.
“The problem, however, is one of interpretation. Ministers will deny acting improperly. Public servants should not assist or coach them in making disingenuous claims, but if ministers can figure out how to cover their tracks and assert their probity unless a public servant has clear evidence that they are acting improperly, it is difficult for them to do anything other than assist their ministers in their work.
“If it seems highly likely the minister is acting improperly, the next step according to the book is for the public servant to write to the minister: informing them that, in the department’s professional view, the proposed action is ultra-vires or beyond the minister’s power; and seek a formal written direction from the minister in response. One can see an exemplary letter of this kind written by a senior British civil servant recently at this link.
“Unfortunately, however, after the widespread sackings that cleared the public service decks on the ascension of new governments in 1996 and 2013, and the summary removal of Paul Barrett and Paul Grimes each for giving unwanted advice, these values are imperilled. It would be nice to be bipartisan in offering such admonitions. But the fact is that it’s the Coalition that has perpetrated virtually all these heavy blows against our Westminster heritage which evolved in England and then Australia over centuries. It’s ironic that such people call themselves ‘conservatives’.”