By Ken Wolff
In October Attorney-General Senator George Brandis got into a stoush with Solicitor-General Justin Gleeson which ultimately led to Gleeson’s resignation. At one point Brandis attempted to turn the issue into an argument about what constituted ‘consultation’ but the real issue was that Brandis had decided his office should have control of what advice could be offered by Gleeson — Gleeson would not have been allowed to provide advice unless the request for advice was first approved in Brandis’ office.
The Solicitor-General acts as the first counsel of the commonwealth and in 2013 and 2014, appeared in matters involving constitutional law, extradition, migration, native title, trade practices, taxation, corporations, customs, international arbitration and criminal law.
Section 12 of the Law Officers Act 1964 sets out his/her functions:
The functions of the Solicitor General are:
- to act as counsel for:
- the Crown in right of the Commonwealth;
- the Commonwealth;
- a person suing or being sued on behalf of the Commonwealth;
- a Minister;
- an officer of the Commonwealth;
- a person holding office under an Act or a law of a Territory;
- a body established by an Act or a law of a Territory; or
- any other person or body for whom the Attorney General requests him or her to act;
- to furnish his or her opinion to the Attorney General on questions of law referred to him or her by the Attorney General; and
- to carry out such other functions ordinarily performed by counsel as the Attorney General requests.
Part (b) does not rule out independently providing advice to people listed under (a) but simply specifically spells out that the Solicitor-General must provide advice when requested by the Attorney-General. While Brandis as Attorney-General is the ‘first law officer’ of the land, his decision to effectively control what advice Gleeson could provide, and to whom, clearly has political implications and that comes about largely through the number of political staffers who now occupy ministers’ offices.
Paul Grimes, Secretary of the Department of Agriculture, resigned in March 2015 after a letter to his minister, Barnaby Joyce, that questioned the minister’s integrity. It arose from an incorrect statement Joyce had made to the House. Joyce quickly corrected his statement (on the same day) but the issue was that changes were also made in Hansard to Joyce’s original incorrect statement. Joyce blamed a ‘rogue’ staffer. It is standard procedure that parliamentarians are allowed to amend draft Hansard records but this is meant to be primarily for grammatical and similar errors — in other words, just tidying up their sentences. It is not meant to allow substantive changes to what was originally said. As in Barnaby Joyce’s case, errors of fact are corrected by an additional statement to the parliament.
I can certainly imagine that a junior staffer may have been given the task of ‘tidying up’ the minister’s statement in the draft Hansard and taken that a step too far. The question, however, was whether or not the minister knew, or had even directed, that the substantial change be made. Grimes’ letter suggests that he thought Joyce was directly involved. Even if not, Joyce should at the very least have accepted responsibility for what was done in his office because the changes would certainly have been cleared by a senior person in the office (as would have been done in the public service, so that such a change would never have seen the light of day).
The Joyce episode shows the modus operandi of political staff in ministers’ offices, where protecting the minister is always the first priority. A classic example was the ‘children overboard’ affair. Staffers in the office of then Prime Minister Howard kept from him the public service advice (from the Department of Defence) that the original interpretation of events, that refugees were throwing their children into the water, was wrong. That allowed ‘plausible deniability’. Howard could truthfully claim he had not lied because he was not advised of the new information — his staffers had made sure of that!
Although the people in ministers’ offices are often simply referred to as ‘staffers’, as a former public servant I take the view that for the most part they are ‘political staffers’ — they are both appointed politically and provide politically oriented advice. Their first allegiance is to their minister and their primary role is to protect him or her and ensure their minister is presented in the best light (they use ‘spin’). Their increasing role since the 1990s has to a significant extent overtaken the advisory role of the public service. The old system was not perfect but neither is the new system.
Historically the public service provided ‘frank and fearless’ advice to ministers. That was possible for a number of reasons. One was that departmental secretaries had permanent tenure. There are arguments for and against that but in its favour was that secretaries could give advice a minister may not like and not feel vulnerable for having given it. Secondly, for a long time departments saw their major client as the people for whom they had portfolio responsibility — during my time in the public service that was, for the department and agencies in which I worked, Aboriginal and Torres Strait Islander people — which meant the advice often provided to a minister was intended to assist those ‘clients’, not necessarily the minister. I can’t recall exactly when, but around 1990 that began to change with public servants being told their primary responsibility was to the minister and yet this at a time when political staffers, already with a primary responsibility to the minister, were growing in number and power. Thirdly, ministers’ offices were originally staffed by public servants from the minister’s department, many just undertaking administrative and secretarial tasks. But there was usually a departmental PPS (Principal Private Secretary) to the minister whose major role was as a conduit for two-way advice flowing between the department and the minister. They were usually up-and-coming relatively senior people and that PPS role gave them insight into the political requirements of a minister’s office, which stood them in good stead for future promotion. I had a boss during my time who undertook that role and he was later often consulted by the departmental secretary on the political implications of advice we were proposing and/or a political strategy we may need to pursue to have it accepted. So it wasn’t as though the public service ignored political ramifications but, at the time, saw them as of lesser importance than ‘sound’ advice. And after weighing the advice, or even ignoring it, the minister always had the final say.
All that changed.
It was Paul Keating in 1994 who did away with permanent tenure for departmental secretaries. He was of the view that the public service should pay more heed to ‘the will of the government’. No doubt Labor’s history contributed to that view. When the Whitlam government was elected in 1972 it inherited a public service that had known nothing but Coalition governments for 23 years. For that reason Whitlam and his ministers did not trust the public service. It could be argued that the Whitlam government may have lasted longer if it had taken more notice of public service advice but, on the other hand, that may also have slowed its reform agenda. And when the Hawke government was elected in 1983, the public service had had Coalition governments for 31 of the past 34 years — not something to instil confidence in the public service for a new Labor government.
Keating’s changes paved the way for Howard, after 13 years of Labor governments, to wield the axe when he was elected in 1996. He removed six departmental secretaries, or a third of the total number at the time. If they did not already know it, secretaries were then made well aware that their job depended on providing appropriate advice, not frank and fearless advice. Rudd did not remove any when elected in 2007 and Abbott kept it to only three on his election in 2013. While the public service has often been criticised by government ministers, of all political persuasions, for being ‘risk averse’, the uncertainty regarding the security of secretaries was only likely to make that more so.
At the same time the number of political staffers was on the rise. During the Howard years, from May 1996 to May 2006, the number of ministerial staff increased from 294 to 445. On AIMN Kaye Lee also quoted another set of figures from Adam Creighton (in The Australian’s ‘Business Review’ of June 2014) that from 1984 to 2014 the number of staff for federal parliamentarians had more than doubled to 590 — including about 420 for ministers and 88 for the opposition (which is traditionally given 21 per cent of whatever the government has). On top of that there were 925 electorate staff whose main task is ensuring the re-election of their member of parliament (including ministers) — so that is another political role. A minister then has three key sources of advice, his political staffers, his electorate staff (who can also provide information on local community views) and the public service but two are definitely political and the third, the public service, has become more political in recent years. Of course, lobbyists also come into this as another source of ‘advice’ although it comes from a clearly partisan and self-interested perspective.
At the start of his prime ministership, Howard restructured the prime minister’s office, creating his own Cabinet Policy Unit (CPU) of political appointees. He also made the Secretary to Cabinet a political position whereas previously that role had been filled by the Secretary of the Department of Prime Minister and Cabinet.
Turnbull has an advisory structure in his office that includes five main areas: international affairs, including foreign and national security policy; social policy; climate, water, infrastructure and cities policy; innovation and higher education policy; and economic policy. He did, however, appoint a public servant as his Chief of Staff, which was an acknowledgement of previous practice.
Since the Keating years, the prime minister’s office has grown from about 30 staff to over 50. Other ministers have between 10 and 20 staff on average.
While policy may still be determined by Cabinet and ministers, advice now comes from many sources and is generally interpreted by the political staffers before it lands on a minister’s desk. Even advice from the public service that implementation of a policy may create problems can often be ignored in favour of advice from political staffers that the policy may be a ‘political winner’.
There is no need to revisit the history of Peta Credlin in Tony Abbott’s office except to say that she portrays the ultimate power of a political staffer. She attended Cabinet meetings, advised Abbott on policy, controlled access and advice to Abbott and also exercised a degree of control over other members of Abbott’s party. Even many of those who supported Abbott thought that was a step too far.
The ‘children overboard’ affair showed one way in which these political staffers protect their ministers: politically damaging or risky information may never appear on a minister’s desk — they are basically deciding what information it may be ‘dangerous’ for a minister to know. Nowadays they also influence the advice the public service provides as advice will often not reach a minister unless it has been endorsed by the political staffers. I know from experience that, in some situations, public servants have virtually to negotiate with the political staffers what advice will go to a minister. What has advice come to when it has to be ‘negotiated’!
Operating that way, political staffers have even undermined ministers having the final say on policy issues. If ministers do not see appropriate advice, both pro and con a policy position or potential problems with implementation, how can they make a legitimate decision? Decisions simply become echoes of political views.
The Barnaby Joyce example shows, at the least, that political staffers may not fully understand parliamentary procedures (let alone public service checks and balances). Departments have people skilled in those procedures and processes of checking to ensure little goes wrong. At worst, it was an example of blatant over-riding of those procedures, whether by the minister or his office, all in the name of protecting the minister.
The Brandis situation exemplifies the efforts to politicise advice, no longer wanting independent or frank and fearless advice but only that advice suiting the political agenda or ‘the will of the government’, to use Keating’s words.
It seems to me that the changes that took place simultaneously within the public service and in ministers’ offices were the wrong changes at the wrong time. Surely the growth in the number of political staffers should have provided more scope, not less, for the public service to provide frank and fearless advice, leaving it to the political staffers to assess the political implications and advise the minister so that she or he could then make a balanced decision. Instead, the public service was also changed so that the advice it provided already took account of many of the political aspects. There seemed no one left who was considering the interests of the people for whom departments were responsible.
If voters are dissatisfied with politics, I suggest one reason is because most policy now is driven by politics rather than basic or frank and fearless advice about what may be good policy for particular groups of people. If both the public service and political staffers advising ministers now consider the minister is their most important ‘client’, it is little wonder that people feel left out. It is because they are!
What do you think?
Do ministers need as many as staff as they have when they also have whole public service departments to advise them?
Where does the balance lie between political advice and ‘frank and fearless’ advice?
Is it right in suggesting that the politicisation of policy advice has effectively removed people from the equation?
This article was originally published on The Political Sword
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