The government’s defence of Bridget McKenzie and the prime minister’s call for advice from the head of his department reveal a remarkable misunderstanding (or, less surprisingly, a remarkable misrepresentation) of the respective roles of ministers and administrators.
In defending the actions of his deputy, Bridget McKenzie, National Party leader Michael McCormack said:
if we only ever do what bureaucrats tell us, we don’t meed ministers.
The Attorney-General Christian Porter backed him up:
what I fundamentally don’t accept is that ministers should not be involved in final approval of projects. That’s their job.
On Wednesday at the National Press Club, Prime Minister Scott Morrison spelled out what he saw as the strengths of ministers and politicians as decision-makers, saying that in contrast to public servants,
at the end of the day politicians, members of parliament are elected. We face our electors. We are part of our communities. We live in them. We engage there every day.
A former Coalition sports minister, Jackie Kelly, has been less diplomatic. She used an appearance on ABC’s The Drum to deride “unaccountable public servants” who she said had “their own axe to grind”, unlike elected members of parliament who understood community needs and were accountable to their electorates.
Public servants are entirely accountable
My fear is that these statements reflect misunderstanding – not just wilful misrepresentation – both of the respective roles of ministers and public servants and of respective accountability arrangements.
Of course ministers - if legally authorised to decide on grants - may exercise discretion and are not required to accept the recommendations of public servants.
However, their first role is setting the criteria for the allocation of the funds: sometimes by introducing legislation, and other times by articulating the objectives of programs which form the basis for public service decisions or advice.
Having set up frameworks, ministers may be legally empowered to make final decisions (depending on the legislation involved), but can be expected to be constrained by those frameworks just as much as public servants. They will also be required to give reasons, consistent with the frameworks, for rejecting public service recommendations.
The public service is accountable for the advice it provides and the decisions it makes. The Audit Office would quickly highlight a finding that advice was not consistent with the framework the parliament or the government had established.
Where authority for decisions does lie with the public service, the public service is subject not only to the provisions of the Public Service Act (including impartiality) and those of the Public Governance, Performance and Accountability Act (including value for money and performance management) but also to administrative law.
This includes the provisions in the Administrative Decisions (Judicial Review) Act (which effectively define “impartiality”), the capacity for decisions to be subject to legal review, and the requirements under the Freedom of Information Act that ensure (with identified exceptions) public access to documentation.
Ministerial advisers, scarcely at all
Under the Constitution, ministers are responsible for the administration of departments. But for a long time, perhaps since Federation, the convention has been not to hold them personally accountable for their department’s administrative failures unless they are personally involved.
This makes the idea of an “unaccountable” public service a figment of the imagination of some politicians and their advisers. If there is a group within the executive arm of government that is unaccountable, it is ministerial advisers, not the public service.