Why we need greater accountability measures for ministerial staff

The revelation that a ministerial staffer pressured public servants into recommending a particular course of action (in the current case before Queensland’s Crime and Misconduct Commission a sports grant), without the knowledge of the minister, sound eerily familiar.

For some time, others and I (e.g., Kimber, 2000, 2004, 2006; Kimber & Maddox, 2003; Ehrich, Cranston & Kimber, 2004) have argued that the realities of an expanding system of ministerial staff mean that the question of their accountability must be addressed. Public servants have been reporting the potential of ministerial staff trying to direct them.

Why is this bad if the role of a ministerial staffer is to provide their minister with political advice? It is bad because the role of public servant is to provide their minister with expert advice in a frank and fearless manner (yes, I know this phrase is cliché but it is true). Thus they must at times provide the minister with advice that the minister might not want to hear. They are afforded tenure and anonymity to ensure that they can provide advice without fear or favour (yes, I know another cliché). It is bad because the power balance must favour the minister because the minister is the elected representative.

Public servants are now covered by a range of ethical requirements including codes of conduct, post-separation employment conditions, and whistleblower protection. In many cases ministerial staff are not covered by similar provisions.

While the Merri Rose affair indicates that ministerial staff should be afforded some protections (e.g., Tiernan), these protections should not condone their usurping both the role of the public servant and the role of the minister. It is when ministerial staff pressure public servants and act without the knowledge of their minister that governments must act to reduce the power of ministerial staff. They must increase the accountability of ministerial staff. They must increase the power of public servants so that they can interact with ministerial staff on a level playing field.

In previous research I have offered the following as means of enhancing the accountability systems covering ministerial staff.

- Code of conduct similar to that for public servants, but contains recognition of the distinct political role of ministerial staff.

- Ensure that the behaviour of ministerial staff as well as ministers and parliamentary secretaries is fully covered by the Integrity Commission.

- Ensure that ministerial staff can be called before parliamentary inquiries

- Develop positive relationships between staff and the department – the minister and the head of department

- Ministers, senior ministerial staff, and department heads model ethical behaviour

- Department heads ensure that ministerial staff understand the role of public servants

- Department heads ensure that public servants understand the role of ministerial staff

- Ensure that ministerial staff as well as public sector employees are covered by whistleblower protection legislation.

To these I would add that post-separation provisions could be enacted and a limit on the numbers and roles of ministerial staff be considered. We need to accept that twenty-first century ministers will obtain political advice from staff, but we cannot accept that this role extends to directing public servants and acting without the knowledge of ministers, as these actions are far from consistent with the principles of responsible parliamentary government.

Accountability and integrity reforms in Queensland

The Queensland Premier’s moves to cap political donations, cap election spending and move towards the public funding of elections, enhance the powers of the Integrity Commission, and ban success fees for lobbyists are to be applauded.

Yet this donations cap, and it must be remembered that donations are not purely monetary, cannot be something that is purely imported from another jurisdiction. It needs to be adapted to the specifics of Queensland and a federal system, where political parties operate at federal, state and local levels. Policies that are not adapted to the specific context in which they are being implemented sometimes have a habit of failing.

These expanded powers for the Integrity Commission need to be backed by financial and staffing resources, and by ongoing modelling of ethical behaviour.

Some reforms to Parliament are also needed, such as voting method or set seats for minority groups similar to the seats for Maoris in New Zealand parliament. Reinstituting an upper house is likely to expand the number of politicians. The party system is too entrenched for a reinstated upper house to act as a house of review.

It is now incumbent on the federal government, and other state and territory governments to follow suit. The perception of corruption is sometimes higher in those systems of government that have extensive integrity system such as that which exists Queensland. This perception is because those who work in these systems are better at identifying it, exposing it, and hopefully eradicating it. It is those governments in which these integrity systems do not exist that concern ought to be directed at.

The week in review (or why I don’t like Twitter grammar)

Accountability has been on the agenda at both federal and state level this week. On 4 September the Queensland Premier gave a speech to the National Press Club in which she repeated her call for a cap on political donations and a return to grassroots politicking. Unfortunately, only Crikey and The Australian appear to have reported the speech. Australian political culture is very much a face-to-face culture and grassroots politicking was an important element in Maxine McKew’s win in Bennelong in the 2007 federal election. Meanwhile, yesterday, federal parliament voted to reduce printing allowances (http://www.brisbanetimes.com.au/national/mps-pay-for-misusing-perks-20090909-fg9i.html), which have, at times, been abused.

While capping political donations (and donations are not necessarily monetary) and reducing printing allowances are important accountability measures, more is needed. They need to occur in all jurisdictions and not just one or two (given the federal nature of political parties). All jurisdictions could have lobbyist registers and ban success fees. Queensland’s lead to make lobbyists who also hold positions on government boards to choose between the board and the lobbying could also be adopted in other jurisdictions. Without an upper house (and the re-introduction of one is probably unfeasible) more could be done to enhance Queensland’s Legislative Assembly. While some commentators have argued that what works in Canada or New Zealand needs to be applied, it is important to note that these initiatives are guides. Policy initiatives need to be adapted to the jurisdiction before they can be adopted.

Yesterday, it was announced that crack teams would go into ‘poor performing’ Queensland schools to fix literacy problems. If additional help is being offered to students, then this move might prove positive. Yet poor school outcomes are sometimes linked to systemic issues that need to be addressed first. The fact that this move has been announced several days before the NAPLAN results are released is intriguing. Is this policy a knee-jerk reaction? Does it invite wider questions about the use of high-stakes tests such as NAPLAN as a means of holding teachers to account? This latter point raises the question of league tables, and the multitude of issues that come with them. There is a growing pile of literature pointing to and demonstrating the problems that come with high-stakes testing and league tables.

 In an attempt to draw the two strands of this blog together, I turn to Twitter. I do not like Twitter grammar. The lack of apostrophes, overuse of exclamation marks, and absence of full stops is somewhat disconcerting. Whoever writes Premier Bligh’s Twitter appears not to know the difference between ‘its’ and ‘it’s’. Perhaps the Premier’s crack literacy team could start here?      

Politicans’ use of Twitter could be an extension of the face-to-face personal political culture that exists in Australia, if they are indeed twittering themselves, as it could serve as a conversation between politician and constituents. In this way, the Internet clearly has become a significant element of political communication in Australia and thus it to might need to be subject to accountability measures.

We must be eternally vigilant

Tony Fitzgerald is right – we must be eternally vigilant. The Crime and Misconduct Commission (initially the Criminal Justice Commission established out of a recommendation from the Fitzgerald Inquiry) and the Integrity Commission are significant aspects of our armoury. The role of lobbyists must be watched closely. Political donations should be declared in a very timely manner. A case could be mounted for election campaigns to be publically funded. This might be costly but it might very well be a small price to pay for openness, accountability and a more level playing field for minor parties.

On a related matter, in an interview with Kerry O’Brien on the 7.30 Report on 29 July 2009, CMC Chair, Robert Needham, drew attention to a number of points. I want to deal with two. The first was that perception often matters more than the reality. Integrity systems might be thought of as important here and the way that the media reports certain actions is clearly significant. The perception and the reality are important in the conventions of ministerial responsibility, and the roles and values of public administration within this system of representative and responsible parliamentary government. Whenever we act we need to think of how our actions would be perceived by a member of the public. Would a citizen consider what we are doing as ethical, and, if not, don’t do it (eg., IPAA Queensland, 2008).

The further point that Needham raised was that of ‘noble corruption’. Those who hold this position could, to some extent, be thought of as articulating consequentialist ethics. Here the ends or the consequences could be ethical but it does not matter so much about the means. Needham pointed out that this position can, in time, result in more insidious forms of corruption based on self-interest. It might be opportune to remind ourselves that utilitarianism is perhaps the most prominent example of consequentialism and self-interest can be seen as a key element of utilitarianism. It could be argued that this form of ethics could be associated with the current economic rationalist/managerialist paradigm.

From the standpoint of virtue ethicists, for instance, ethics is just as much about the means as it is about the ends. Ethics is about character – good character. Other virtues include justice, care, loyalty, trustworthiness, honesty, and prudence (practical wisdom) – there are, of course, many more. Kane and Patapan (2006) have written a very interesting and thought provoking article on the subject of public administration and prudence, particularly given that managerial reforms have placed more public servants in situations where they will be required to resolve ethical dilemmas. Ethics is about doing what is right. In the case of public officials, doing what is right might be thought of as being connected to the public interest. In a previous blog I argued that citizens expect public officials to be accountable and to act ethically. Personal integrity is essential.

Interest Registers Versus Personal Integrity

The conviction of Gordon Nuttall on corruption charges raises questions about personal integrity and integrity systems for public officials. One issue that is of significance is that if pecuniary interest registers versus personal integrity. Nuttall failed to declare payments on the register (e.g., McKenna & Elks, 2009; Fraser & McKenna, 2009; Bentley, 2009a). It can be argued that such a register is designed to increase accountability (and ethical behaviour).

Under the convention of individual ministerial responsibility, a minister who acts inappropriately is required to resign (eg., Kimber, 2000). There have been a number of cases at federal level in Australia where ministers resigned or ought to have resigned but did not, the most recent resignation being that of Joel Fitzgibbon. One of these resignations was Ros Kelly in 1994 for what has become known as ‘the Sports Rorts Affair’. Kelly, then the Sports Minister, could not adequately account for grants to sporting bodies. The case has been intriguing because of the use of a whiteboard to record the process of decision making in the minister’s office (eg., McKemmish, 1999). At federal level, other cases have included the Travel Rorts Affair, where several ministers resigned, and, in 1999, the failure of Parliamentary Secretary, Warren Entsch to declare three directorships on pecuniary interest forms. One of these companies won a government contract (Australian Broadcasting Corporation, 1999. For a full list of ministerial resignations at federal level since 1972, see Beale, 2002).

Returning to Queensland, Premier Bligh, initially, did not register her house sitting for Ros Kelly. While it is debatable whether Bligh needed to register an activity such as house sitting for a friend, Nuttall’s and Bligh’s responses to cross-examination highlight the importance of personal integrity. Nuttall is reported to have stated that ‘nothing is for nothing’. Bligh is reported to have said that she ‘probably would’ declare a conflict of interest and leave the Cabinet room if discussion or decision-making regarding the company Kelly is associated with came to Cabinet (Bentley, 2009b).

What these responses suggest is that an interest register might not ensure ethical behaviour but that personal integrity could be more likely to do so. Someone with high personal integrity might act ethically regardless of the existence of a pecuniary interests register. Someone with low personal integrity could act unethically despite the existence of measures designed to prevent such behaviour. Indeed, Ehrich (2000) and Keating (2003) both argue that we cannot legislate for ethical behaviour or integrity. An ethical culture, leaders modelling ethical behaviour, resources, and on-going education about ethics and ethical decision-making are significant in ensuring that members of an organisation – whether that be parliament, a business or a school – act ethically (e.g., Cranston, Ehrich & Kimber, 2003; Kimber, Ehrich & Cranston, 2003).

In Terms of Trust, John Uhr (2005) makes a similar point. Uhr (2005) argues that public officials with high personal integrity can make the organisations that they work for more ethical. Trust is fundamental to our political system – we trust that our representatives will act in the public interest, we trust that they will be accountable to us, and we trust that they will carry out their duties in an ethical manner. Yet we would be wise not to forget that nothing corrupts like power. Thus anyone in a position power must ensure that they act in an ethical manner at all times.

Professor Ross Homel and former Queensland Integrity Commissioner, Gary Crooke, are two people who are suggesting that another Fitzgerald-type inquiry might be warranted (Stateline, 2009). Such an inquiry might centre on relations with business and include the money business pays to attend lunches, etc with politicians from any political party. We need to ensure that we, as citizens, and our elected representatives are enculturated to act in an ethical manner. Perhaps the Integrity Commission should be given more resources and a wider brief?

References

Beale, R. 2002. Ministerial Responsibility for Administrative Actions: Some Observations of a Public Service Practitioner, Agenda, 9(2), pp. 291-304.

Bentley, A. 2009a. Nuttall found guilty, brisbanetimes.com.au, http://www.brisbanetimes.com.au/queensland/nuttall-found-guilty-20090715-dl8h.html. Accessed 20 July 2009.

Bentley, A. 2009b. Bligh takes witness stand, brisbanetimes.com.au, 30 June. Accessed 19 July 2009.

Cranston, N., Ehrich, L. & Kimber, M. 2003. The ‘right’ decision? Towards an understanding of ethical dilemmas for school leaders, Westminster Studies in Education. 26 (2), 135-147.

Ehrich, L. 2000. Principals as morally accountable leaders’, International Journal of Educational Reform, 9 (2).

Fraser, A. & McKenna, M. 2009. Reality strikes 36 times, The Australian, http://www.theaustralian.news.com.au/story/0,25197,25789042-5017272,00.html Accessed 20 July 2009.

Kimber, M, Ehrich, L. & Cranston, N. 2003. Theorising Public Sector Ethics: An Excursion into Australian Public Sector Ethics. Paper Presented to the Australasian Political Studies Association National Conference, University of Tasmania, Hobart, 29 September -1 October.

Keating, M. 2003. In the Wake of ‘A Certain Maritime Incident’: Ministerial Advisers, Departments and Accountability. Australian Journal of Public Administration, 62(3), pp. 92-97.

Kimber, M. 2006. Ministerial Minders Making Mayhem: Ministerial Advisers and Public Service Politicisation, The Public Interest, September.

Kimber, M. 2004. Ministerial advisers: guardians or usurpers of responsible government?, Paper presented to the Australasian Political Studies Association National Conference, University of Adelaide, Adelaide, 28 September – 1 October 2004.

Kimber, M. 2000. The Australian Public Service Under the Keating Government: Managerialism Versus Democracy. Armidale, University of New England, Unpublished PhD thesis.

McKenna, M. & Elks, S. 2009. Corrupt ex-minister Gordon Nuttall in jail facing extra charges, The Australian, 16 July, http://www.theaustralian.news.com.au/story/0,25197,25789041-601,00.html. Accessed 20 July 2009.

McKemmish, S. 1999. The Smoking Gun: Recordkeeping and Accountability, http://www.infotech.monash.edu.au/research/groups/rcrg/publications/recordscontinuum-smoking.html. Accessed 18 July 2009.

Australian Broadcasting Corporation 1999. Howard Government fights probity issues on two fronts, 7.30 Report, 9 June, http://www.abc.net.au/7.30/stories/s28555.htm. Accessed 18 July 2009.

Uhr, J. 2005. Terms of Trust: Arguments over ethics in Australian government. Sydney, UNSW Press.

VanVonderen, J. 2009. Government Fallout. Stateline, 17 July, http://www.abc.net.au/stateline/qld/content/2006/s2629419.htm. Accessed 18 July 2009.

Public accountability

The question of public accountability has been brought into focus by the recent Utegate affair in Australia. While it may have served as a distraction from the debate over the emissions trading scheme, it directed attention to the integrity of ministers and of public servants, and to the accountability relationships that exist in a post-Children-Overboard-world. In a Westminster-type polity like Australia, parliament is central to holding the government to account — and this is a key reason why part of the controversy centred on whether parliament had been misled. Ministers are accountable to parliament through the conventions of collective and individual ministerial responsibility. Public servants are required to provide ministers with impartial and expert advice in an apolitical manner. They and their ministers are subject to the rule of the law, like any other citizen. A question in this case is: did a public servant act in a manner contrary to these roles and values?