The Cole Inquiry into the AWB is partly about who knew what when and who should have known. If the Inquiry manages to shed some light on the passage of information through Ministers offices then it will be more fortunate than the Parliament, because there is a key group of players — Ministerial advisers — who are not examinable by parliament.

Prior to the Public Service reforms of 1984 Australia had a fairly classical Westminster system. Ministers collectively set the strategic directions of the government of the day. Individual Ministers exercised the powers given to them by the legislation they administered and gave directions to their Departments as they saw fit, keeping in mind that they were answerable to their colleagues, the Parliament and the public.

Thanks to Bill Leak.

Under this system there was a standing, professional, apolitical machinery of government — the Department and it officers. Winning office at a Federal election conferred the right to determine the strategic direction of that machinery.

The 1984 amendments to the Public Service Act and the parallel introduction of the Members of Parliament (Staff) Act introduced major confusion into the respective roles of Minister and Secretary, because they provided that Ministers were to be involved in managing the Department, rather than simply giving it strategic direction and leaving the Secretary to manage. 

This introduced into Commonwealth public administration a diffusion of responsibility, a reduction in the accountability of both Minister and Secretary, and confusion about the roles and accountabilities of Ministerial staff, the numbers and roles of whom were enlarged at the same time. 
This role confusion was carried through into the Public Service Act 1999.

Ministerial staff are now successfully competing with Departments for the Minister’s ear. Regrettably, they are not subject to satisfactory public accountability procedures.

The single most important measure to improve the accountability of Ministerial staff would be to return to a system where all substantive communication between the Minister, Ministerial staff and the Department is in writing. Reliance upon oral communication exposes the nation to three principal areas of risk:

• authority: who is actually issuing this instruction? Is it the Minister or is it someone else?
• accuracy: who is being asked to do what, for what purpose, with what resources, and by when, and what is the response of the Minister or Department to these communications?
• accountability: who did what, when, for what purpose, and on what authority?

Where there is no auditable paper trail, accountability becomes far more problematic, as the AWB inquiry is discovering.

All of the above-mentioned areas of risk seem to have been present in the affair known as A Certain Maritime Incident, better known to the public as the Children Overboard affair.

A fair rule of public administration would be that instructions that are not in writing do not exist. This is not a trivial matter. Such a regime would mean that no officer or Ministerial staffer could claim the protection of having acted in accordance with a lawful instruction of the Minister unless they can produce a written instruction signed by the Minister. In cases of genuine emergency it should not be difficult to provide promptly written confirmation of instructions. Without written instructions officers would be acting at their own risk and would be accountable for having done so.

It might be argued that this would be a cumbersome and old-fashioned approach, but when a choice has to be made, effectiveness is more important than efficiency in managing the affairs of the nation. Getting it right first time and knowing who is accountable for what transpires has a lot to commend it. For Departmental officers to require written direction before taking significant and irreversible steps would seem to be a minimum requirement for acting with the “care and diligence” required by s13(2) of the Public Service Act. It is hard to argue that the abandonment of these traditional approaches has led to an enhancement of the quality of our public administration. Values Statements or Codes of Conduct will have no impact without a paper trail to underpin accountability. Accountability depends upon the capacity to systematically ascertain the facts.

In even the most minor transactions in our daily lives we rely upon credentials backed by signatures. Even a minor purchase on credit or a minor withdrawal from a bank account requires a signature; and whether we purchase on credit or with cash, we expect a receipt. How strange it is, then, that some officials seem prepared to act upon oral advice from a staffer that the Minister wants something done or something prevented from being done. It was certainly the practice of at least one of my senior staff in the Department of Defence to commit oral instructions to writing, transmit them to the Ministerial staff by e-mail, and await confirmation before acting on the instruction. Perhaps it was only coincidental that it did not take long for the Minister’s name to be used less frequently.

It is intolerable that Ministerial staff can give oral instructions to Departmental officials that purport to be instructions from the Minister, which being oral are susceptible to claims that the Minister was not aware of them, and yet the staff member concerned cannot be touched by due Public Service or Parliamentary processes. 

Similarly, if information or advice is provided to Ministers’ offices by Departmental staff, only one of the following two approaches is tenable:

• The information or advice having been received by the Minister’s Office, it is deemed to have been received by the Minister him/herself, there being no distinction made between the Minister and the Minister’s staff, or
• There being a distinction made between the Minister and the Minister’s staff, members of the Minister’s staff are liable to be tested as to what they did with the information or advice, and when.
Addressing these issues is a matter of high importance. They are the first line of defence for the Parliament and public in safeguarding our political system against a culture in which Ministers can operate in an environment of plausible deniability.

This issue of plausible deniability is not some hothouse fantasy of conspiracy theorists. A single anecdote will serve to illustrate the potential for Ministerial staff both to seek to manipulate the advice that is provided to the Minister, and then to play games in relation to the advisory process.

In late 1998 I was directed by the then Defence Minister to give him a comprehensive report on the history of the Collins Class submarine and the matters that remained to be dealt with in order to bring the submarines into naval service. It was appropriate for advice on this subject to be signed by both the Secretary of the Department and the Chief of the Defence Force (CDF).

The CDF and I prepared and signed our joint advice and in early December I rang the Minister’s Chief of Staff to say that I was sending it to the Minister in that morning’s deliveries. I was asked not to. “Why not?” I asked.

“Because it mightn’t be what we wanted, and if it got out that we had received it and sent it back to be changed, that could be embarrassing for everyone.  Just send it over ‘informally’, we’ll have a look at it, and if we need any changes we will get back to you”.

I informed the CDF of this turn of events and said that I was not prepared to play this sort of game. As the Minister was visiting the Department in two days’ time, I decided to hand it to him in person then.
The day came and I did just that — handed the advice to the Minister in the presence of the CDF and the Minister’s Chief of Staff.  This was 16 December 1998.  It is a sign of the world now occupied by some Ministers that, weeks later, on 21 January 1999, the Minister told Max Moore-Wilton that he was still waiting for the report,  and an article in The Age on 7 February 1999 referred to it as something “soon due to be delivered”. 

The rationalisation for this position can only be that the advice was not sent through the Department’s Ministerial Correspondence Unit, and was therefore provided “informally”.  So signed written advice handed from Secretary to Minister in the presence of the CDF can still leave the Minister able to say that he has not been told.