By all accounts, this is a government that can get away with anything

5 Jul 2006

The actions and services of government are increasingly hidden by an almost impenetrable screen, writes Jack Waterford

THE Howard government is the most accountable since Federation. We have John Howard’s own word for this - while he was repudiating an opposition attack on his reducing the role of Senate committees and on the passage of legislation making our electoral system more corruptible.
It is certainly the most powerful since Federation, given the effect of its unrelenting centrism, the increased significance of welfare (whether through social security or the tax system) in people’s lives, and the increased importance of discretion and political whim in how government delivers goods and services.
But it is almost impossible to argue that this increased power has been accompanied by increased checks and balances, by a willingness to give an account of how power has been exercised, or by corrective mechanisms which underline the public interest and the rule of law.
This is not to postulate some other, earlier government as being more accountable - or accountability minded - so much as to say that in the non-stop drift towards greater and greater executive power, accountability falls further and further behind.
The high-water mark of formal accountability was probably in the 1980s, after the Fraser-era passage of the various administrative law packages (judicial review, the Administrative Appeals Tribunal, the Ombudsman and Freedom of Information legislation), the financial management reforms of the Hawke era, and the widened scope of audit and parliamentary committee review.
Not one of these developments is in better shape today, and not a few important other parts and institutions of the accountability system are also in greater disarray.
Result? Executive government can do more and get away with more without anyone, particularly at the top levels, having to explain or being likely to be held responsible.
More and more actions and services of government now are pulled behind an almost impenetrable screen, with no one at all - except, sometimes, a hapless junior public servant - ever carrying the can.
It is not only Howard’s fault. Some of it is the opposition’s. When Howard was boasting of the accountability of his government, for example, he meant little more than that he and his fellow ministers answer more questions without notice in the House of Representatives than any previous government, and certainly many more than the Keating government.
He’s right, but the problem is that the opposition hardly bothers to ask questions, certainly about facts, because the government does not bother to answer them. Rather, a rhetorical topical proposition is advanced (the thrust of which is that the minister is a liar or a fool) and the minister answers it at large by counter-bombast. Meanwhile, the government prepares a set of tame questions (platforms from which it can blast the opposition) to be asked by willing government backbenchers. No information is sought; none is provided.
Fake theatricality is provided by synthetic outrage at (inevitably) partisan rulings by Speakers, who make little effort to enforce standing orders against the government. No information, and no accountability, is provided by question time. The three best government bovver boys (Howard, Costello and Abbott) are comfortable enough with the system (which has matured since the Hawke era) that they have no impetus to change.
But it could be changed, if, say, Wayne Swan and Stephen Smith and other supposedly brilliant Labor tacticians were taken out into the South China Sea and sunk, and if Kim Beazley and remaining frontbenchers swore solemn oaths that they would never again ask a question inviting the government to express an opinion or to make an inference.
If that happened, the Speaker might feel constrained to require ministers to deal with facts, and, given that the implications of facts are usually fairly obvious, to sweat a little.
Meanwhile, the process of making parliament itself a mere talking shop continues apace. There is less time for debate and for committee stages of important legislation, and even less pretence of ministerial willingness to respond to questions or to the drift of debate.
It has always been true that party discipline has always been strong in the House of Representatives, but there was a time in which some parliamentarians actually listened to argument and made an attempt to deal with questions, or, sometimes, to persuade the minister to respect a decent point.
Any pretence that the Representatives would further develop its committee system has been halted. The main committee process has some merits, but can hardly be said to have freed the main chamber for bigger debates on more fundamental issues of policy and principle.
With the Senate, the major consequence of the government’s acquisition of a majority has not been so much the folding up of old committees, or putting all of them under the control of pliable chairs. It is the virtual impossibility of getting up a Senate inquiry into any issue the government does not want raised. This does not prevent questions being asked in estimates committees - which were usually, in any event, the more effective at drawing out information from public servants. But the time allowed for the estimates process has been reduced.
So has the quality and quantity of time devoted to high policy issues by parliamentary committees of any sort. On almost all legislation or resolutions passing the parliament, backbenchers have little opportunity, other than from their personal initiative or from their own party committee systems, to gather information capable of contradicting the material put to parliament by the government.
Needless to say, the resources of the parliamentary library are being reduced, and, as ever when parties become smug in government, the utility of allowing such a research service is more and more questioned. That the government operates a very well-resourced (and publicly funded, to a higher degree than the parliamentary library) political intelligence service, entirely unaccountable to the public, reduces its own demand on such resources.
Meanwhile, government has entrenched ministerial advisers into the system in a way that has considerably frozen the public service out of top-level decision-making. This may, to a degree, protect public servants from politicisation. But it hardly enhances government accountability, given the way government has winked about systemic failure of minders to properly record their actions, and the way that government forbids advisers to account for their actions or advice to parliament.
In no western system, whether of the Westminster or the Washington model, are the actions of executive advisers, or the operation of the patronage system, subject to less public or parliamentary scrutiny.
The retreat from the operation of boards and corporate models back to direct ministerial supervision has also reduced the flow of information, other than spin, about what is going on.
Meanwhile a parliament entirely cowed by the executive has further emasculated itself by accepting a changed appropriation system whereby it has no idea whatever what it is giving money for, and even less idea afterwards, of whether the money has been spent, or well spent. Almost all the benefits of switching to an accrual accounting system have been lost by the complete legal and political unaccountability of vague or meaningless purpose statements.
There is almost no imaginable purpose the government could not spend money on tomorrow without being able to say the expenditure was authorised under an appropriation already made, including, say, a private yacht for the prime minister or a $500 million gift, free of conditions, to Rupert Murdoch. It is that utter lack of accountability which allowed government to spend more than $100 million on partisan advertising to create a case for industrial relations law, and which allowed Howard to spend an ad hoc $1billion to create his Pacific Solution for boat people.
This reduction to meaninglessness of one of the most important constitutional accountability guarantees has the full blessing of a High Court which, so far as promoting the accountability of the government is concerned, is the weakest, in moral and intellectual terms, since Federation.
Not a single judge has executive or administrative experience - and it shows. Only a few judges are preoccupied with issues of rights of the citizen against an ever more powerful state, the balance of rights between different layers and levels of government, or the importance, in real as opposed to self-serving theoretical ways, of the separation of powers. Their concerns are inward, and their relevance to the accountability debate is diminishing.
The quality and quantity of judicial scrutiny of government action has significantly declined, partly as a self-inflicted wound by arguably the worst decision in the court’s history, which castrated the Federal Court and reduced it, almost, to hearing immigration appeals.
Meanwhile executive government has been relentless in trying to reduce the scope of judicial review, and to increase discretion to ministers and public servants, particularly in the immigration sphere. There are constitutional limits to how far such restriction can go, but then again, when a High Court will happily approve detention forever for asylum-seekers unable to be deported anywhere, some wonder whether residual rights are worth much anyway. By any account, the High Court is less of a check and balance, and less likely to hold government power to account, than at any time in its history.
Administrative tribunals have been weakened, in powers, in independence, and in scope of review, even as the scope for public service discretion, not least in the new welfare-to-work regime, has been increased. A further blanket has been put over the accountability net by the practical contracting out of many of the service-delivery functions, in ways that additionally reduce the chance of any review.
FOI legislation has been rendered so complicated and expensive - and so subject to novel and arbitrary exclusions, such as the need to protect a minister from possible embarrassment that it now plays almost no role in the accountability system. This could change as a result of a matter before the High Court, but, given the government’s (and the attorney-general’s) devotion to administrative law, most cynics expect that any inconvenient judicial decision will be overridden by a tame parliament and by fresh administrative obstructionism.
AT LEAST three senior independent public officials - the auditor-general, the ombudsman and the public service commissioner - have important roles to play in the accountability system. All treasure their independence and are fine people, but it would be fair to say none has given government the slightest amount of trouble in recent years, and not for want of issues upon which they might have done so.
The auditor has issued some very critical reports, but few have involved systemic problems and, in almost cases, all criticism has fallen well short of the minister or the government as a whole. Gone, perhaps forever it seems, has been any sense of mission of being the people’s watchdog, or the own-motion analysis of whether the public, and the public interest, are getting value for money.
The public service commissioner’s annual reports show declining faith by public servants in the probity of the system in which they work. They show particular concern about interaction with the minister’s office, and about the complete unaccountability, to the public at least, of the ever-burgeoning and more powerful ministerial adviser. If there are any private confrontations with government to protect the integrity of the service, no one knows. The commission seems content to play a largely passive role in such matters, as well as in carrying out its functions over senior appointments and promotions. This power has shifted, in this vacuum, to Finance and to the secretary of Prime Minister and Cabinet.
Reports on the immigration scandals came out under the aegis of the ombudsman, but it would be quite unfair to him to ascribe to him any initiative in the matter. Originally, indeed, the report was commissioned from a former police commissioner with no relationship to the ombudsman’s office; it was shifted there only so as to make clear the powers of the inquiry. Since the first explosive reports - from the outsiders - the ombudsman has issued many more, equally damning, reports. But it is perhaps a reflection of the office’s distaste for publicity and shyness about embarrassing the government that they have received little attention. Even then, however, the reports, formally at least, have helped get the government off the hook, since they have conveniently found all the manifest faults to be those of usually very junior public servants and a bad culture in the department.
They have avoided any discussion of the obvious role of various ministers or the cultures these imposed. The ombudsman could retort that he is precluded from investigating the actions of ministers. But that, perhaps, underlines the fact that he is hardly putting government under any deep stress - in immigration or anywhere else.
One could go into purely political zones, of only passing interest to public servants. There is the complete disappearance of ministerial codes of conduct, the rewriting of ministerial responsibility rules to the point where anything now goes. The scandalous way in which ministers jump from the public trough to enriching themselves by selling access to and influence over their old colleagues. The attacks of amnesia and paralysis by ministers over what they knew, or could recall, or whether they were told anything over matters such as the wheat-for-oil scandal.
It is rather hard to divine from any of this that government is crushed by the burden of being called to account. Or even that, were it being enforced by a master who believed in accountability, it could be a crushing burden. All that one can be reasonably sure of is that the next government, of whatever complexion, will have even less zeal to account, and, probably, be under less pressure to do so.

Jack Waterford is editor-at-large of the Canberra Times. This article first appeared in the Public Sector Informant section of that newspaper.

Photo: Andrew Jeffrey

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