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[JULY 2009]

30 T H E P U B L I C S E C T O R I N F O R M A N T

[POLITICS: RICHARD MULGAN]

Public opinion remains the wiser judgeMinisterial responsibility

Courts have no place in decidingwhether a minister should stayon the front bench

Ministerial responsibility has never requiredministers to take the blame for the actionsof subordinates when such actions werebeyond their reasonable knowledge orpersonal responsibility

M inisterial respons-ibility is regularlypronounced dead, or atleast moribund. But

events of the past month haveconfirmed its continuing potency asan accountability mechanism. Oneminister, Joel Fitzgibbon, wasforced to resign while another,Wayne Swan, was severely buffetedand is not yet completely in theclear. Taken together, theseincidents reinforce the central fea-ture of ministerial responsibility:that its conventions are primarilypolitical in interpretation and appli-cation. Constitutional experts cantry to encapsulate the principles ofministerial responsibility intotextbooks or into codes of conduct.But how the principles play out inpractice always depends on thepolitics of the moment, on publicperceptions of ministerial culpa-bility and on the prime minister’sjudgment of potential damage to thegovernment’s standing. The trigger

for Fitzgibbon’s resignation wasevidence that his office staff hadorganised and attended a meeting inthe minister’s office between theminister’s brother and other healthinsurance executives. The purposewas to discuss Defence Departmenthealth contracts. The minister hadnot been told of the meeting. He hadearlier told his staff that he could notbecome involved with any of hisbrother’s business dealings. PrimeMinister Kevin Rudd immediatelyreferred the issue to then specialminister of state John Faulkner, thegeneral keeper of the Government’sconstitutional conscience. After dis-cussion, Fitzgibbon agreed, in hisletter of resignation, that he ‘‘wasnot satisfied that [the meeting]leaves it clear that I have entirelyconformed with [the] MinisterialCode of Conduct’’.What is most striking about this

case is the admitted tenuousness ofthe fault. The minister admits hisguilt very indirectly – it was notclear that the code was conformedwith – a form of words that leavesopen the possibility of doubt. It wascertainly not clear that the code hadbeen actually been breached. More-over, placing the emphasis on apossible breach of the code ratherthan on the supposed improprietyitself, suggests further doubt about

the minister’s culpability. If theminister had clearly acted impro-perly, as for instance in actuallyseeking an advantage for his brotheror in misleading Parliament, thatwould have been given as the reasonfor his resignation. Instead, Rudd,sensing that the fault was moretechnical than actual, sent Fitzgib-bon off to the architect of the code,Faulkner, for a legalistic interpret-ation and penalty.The real reason for Fitzgibbon’s

resignation, as generally recognised,lay elsewhere. The meeting in hisoffice, though not a hanging offencein itself, was the last straw in a longline of indiscretions. He had alreadycome under attack for failure todisclose gifts and hospitality as wellas for his dealings with Helen Liu, abusinesswoman with Chinese gov-ernment connections. Another inci-dent, however minor and contest-

able, would be a further distractionfor the Government. All in all,Fitzgibbon had become a liability.If evidence of a similar meeting

had been used to incriminate one ofthe Government’s key ministerswith no previous personalblemishes, such as Julia Gillard orLindsay Tanner, we can easilyimagine the response. The meeting,we would have been told, had beenheld by members of the minister’sstaff on their own initiative behind

the minister’s back and against theminister’s express instructions. Thestaff responsible had been dismissedand all remaining staff reminded oftheir professional obligations. Nobreach of the code of ministerialconduct would have occurred.Responsibility for the acts of

ministerial staff remains a grey area.Labor, in opposition, criticisedministers in the Howard govern-

ment who sought to avoid respons-ibility by passing the buck tounaccountable advisers. Ministers,it was argued, should accept fullresponsibility for the actions of theirstaff. The code of ministerial con-duct, however, is less categorical. Itmerely requires that ministersensure that ‘‘the conduct, represen-tations and decisions of those whoact as their delegates or on theirbehalf are open to public scrutinyand explanation’’. Ministers shouldnot shield their staff from scrutiny.But they need not take responsibilityand shoulder possible blame for allthe culpable acts of their advisers.Such a position makes sense.

Ministerial responsibility, despiteperennial claims from misguidedpurists, has never required ministersto take the blame for the actions ofsubordinates when such actionswere beyond their reasonable know-ledge or personal responsibility.When departmental officials are atfault, ministers must answerquestions and impose remedies, butthey do not need to accept personalblame, still less resign.Given the current size of minis-

terial offices, this principle nowneeds to be extended to advisers aswell as to departmental officials. Itwas open to Rudd to let Fitzgib-bon’s staff take the fall. That he

[JULY 2009]

T H E P U B L I C S E C T O R I N F O R M A N T 31

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Judgement day: Joel Fitzgibbon makes his way to the back bench after resigning as defence minister last month.

made Fitzgibbon himself resignindicates a judgment that publicopinion had turned against theminister. Further support wouldprove unpopular and offer easypickings for the Opposition.

In some respects, the case ofSwan leaves less wriggle roomthan Fitzgibbon’s. The heat

over the OzCar affair has been onhim personally rather than on hisstaff. Did he intervene to makespecial representations on behalf ofLabor supporter John Grant? If so,did he lie to Parliament about it?Swan’s statements to the House areequivocal and omit reference to aphone conversation with Grant.Unlike Fitzgibbon, however, Swanis a minister the Government cannotafford to lose, especially over theGrant connection, which would alsodamage the Prime Minister.Swan has also been lucky, in that

the Opposition’s attack on Rudd,based entirely on the notorious fakeemail, failed so spectacularly.Indeed, Rudd audaciously added anew variation to the conventions ofministerial responsibility, urging theOpposition Leader, Malcolm Turn-bull, to resign. Of course, onlyministers have a constitutional res-ponsibility to Parliament. Oppo-sition members have no obligation

to offer explanations or to acceptconsequences such as resignation.Their role is to ask, not to answer.Yet in the gladiatorial theatre ofParliament, where alternativeleaders stand trading blows toe-to-toe, mutual demands for resignationcarry a certain symmetry. Certainly,Turnbull could not afford to denyRudd’s right to seek his resignation.The Auditor-General has been

left to deal with Swan’s actions overOzCar, but in the much widercontext of looking at all represen-tations to Treasury on this matter.

Much will depend on what view theAuditor-General takes of thescheme and of how arm’s-lengthministers should have remainedfrom its administration. Represen-tations via ministers are a constantfeature of government, as attested toby the multimillion-dollar lobbyingindustry. If a company is big andpowerful enough, ministerial help isno problem. If it is acceptable tohelp GM Holden, what is wrongwith helping a car dealership?Another complicating factor is

that politicians often exaggerate

their influence in order to boost theirlocal reputations. Ministers andtheir staff pretend that represen-tations from the minister will makeall the difference when, in fact,decisions are made by officialsusing strict guidelines. The reporton OzCar will require all theAuditor-General’s tact and will beworth waiting for!

That decisions on ministerialresponsibility are ultimatelypolitical reflects the com-

plexity and uniqueness of each case.

The prime minister makes the finalcall after weighing up all individualcircumstances. But the effectivedecision is often made less by theprime minister than by the public atlarge, as the punters either endorseor reject the opposition’s attack. Itwas public opinion, in the end, thatdetermined that Fitzgibbon shouldgo and that Swan should stay, atleast for the time being.The court of public opinion is

greatly to be preferred to a court ofjudges. In NSW, constitutionalexperts are looking anxiously at thelegal case being brought against thestate government by sacked ministerTony Stewart. Stewart wasdismissed on the basis of a reportcommissioned by Premier NathanRees, which found he had intimid-ated a female staffer. Stewartcontests the report’s conclusionsand has produced witnesses whosupport his version of events. If hisclaim is upheld, he could havegrounds to be reinstated as aminister. Giving ex-ministers theright to sue for unjust dismissalwould be fun for lawyers but chaoticfor governments.

Richard Mulgan is a former professor

at the ANU’s Crawford School of

Economics and Government.