What lessons can we draw from the leaked tapes crisis?

Yee-Fui Ng

Yee-Fui Ng

by Yee-Fui Ng 

The resignation of Ted Baillieu as premier of Victoria has once again brought ministerial advisers into the spotlight.

There is little doubt the events leading up to Baillieu’s resignation, which involved ministerial adviser Tristan Weston; Police Minister, Peter Ryan; the leaked tapes to the Herald Sun; and the resignation of the then premier’s chief of staff, Tony Nutt, had some effect on the stability of the leadership.

It was enough of an issue for Baillieu that he referred the matter to the Victorian anti-corruption agency, the Independent Broad-based Anti-corruption Commission (IBAC).

Technically, through the concept of ministerial responsibility, ministers are individually responsible to Parliament, including for the actions of public servants and their advisers. However, the convention of ministerial responsibility has been weak in practice in Australia and very few ministers have resigned due to the actions of their department or ministerial advisers. Ministers and ministerial advisers are more likely to be held accountable through the media than other accountability mechanisms.

Baillieu’s resignation was not primarily brought about because he wanted to take responsibility for his chief of staff’s actions. Rather it was because he found himself in a politically untenable position due to unique circumstances: he was besieged by the leaked tapes and the possibility of a hung parliament after a parliamentarian’s resignation from the Liberal Party... all within the same week. Nevertheless, the leaked tapes were directly linked to Tony Nutt’s resignation.

IBAC: a weak accountability mechanism

IBAC is a new accountability mechanism that can be employed against ministerial advisers. IBAC may decide to investigate the actions of Tony Nutt and Peter Ryan. However, there is a high threshold that has to be satisfied before an investigation can be conducted: IBAC must be reasonably satisfied that the conduct it is investigating could amount to “serious corrupt conduct”.

At best, a tenuous argument can be made that IBAC’s jurisdiction is satisfied here because Tony Nutt’s conversations indicate a conspiracy to utilise Weston as a scapegoat to take the fall on behalf of his minister for the Simon Overland incident and to reward Weston for this. This seems like a long bow to draw and IBAC’s jurisdiction is vulnerable to legal challenge.

The saga is still unfolding, however IBAC’s findings have no legal effect and sanctions will be through parliament or the police. In short, IBAC is a very weak accountability mechanism.

Ministerial advisers: power and accountability

The current accountability frameworks governing ministerial advisers are deficient at both the Victorian and federal level. There is no ministerial adviser code of conduct in Victoria. At the federal level, although ministerial advisers are subject to a code of conduct, sanctions under the code are handled internally by the executive through the Prime Minister’s Office. This means that any breaches of the code by ministerial advisers would be handled behind closed doors, without the scrutiny of parliament or any external bodies. 

In addition, the code seems to suggest that ministerial advisers have a limited role and are merely conduits between the ministers and the public service. However, political practice has now outstripped the legal and constitutional rules. As the number of ministerial advisers has grown, advisers have taken on increasingly extensive roles. Tony Nutt, in the leaked conversations to the Herald Sun, summed it up colourfully: “a ministerial adviser deals with the press. A ministerial adviser handles the politics. A ministerial adviser talks to the union. All of that happens every day of the week, everywhere in Australia all the time. Including frankly, the odd bit of, you know, ancient Spanish practices and a bit of bastardry on the way through.  That’s all the nature of politics”.

Significantly, there are instances where ministerial advisers act on behalf of their minister.  Harry Evans, a previous Clerk of the Senate, has stated that “[ministerial advisers] act as de facto assistant ministers and participate in government activities as such”. Further, a Senate Committee found that “it can no longer be assumed that [ministerial] advisers act at the express direction of ministers or with their knowledge and consent. Increasingly, advisers are wielding executive power in their own right”.

Closing the accountability gap

There have been previous scandals involving ministerial advisers such as the ‘children overboard’ incident and Hotel Windsor incident. In these cases, there was an accountability gap: the government managed to escape accountability because they refused to allow ministerial advisers to appear before parliamentary committees. Ministers and public servants are subject to elaborate accountability mechanisms through the courts and parliament, however ministerial advisers, who are also publicly funded, escape these forms of accountability.

If it were not for the leaked tapes to the media, a similar situation could have eventuated in the police tapes crisis; the ministers had distanced themselves from Weston and could have emerged completely unscathed.

We cannot be complacent about the current regulation of ministerial advisers. Reforms are needed to bolster the accountability framework. In particular, Parliament and the Government should agree for ministerial advisers to appear before parliamentary committees based on negotiated guidelines.

Without reform, there will be a perpetual battle of wills between parliament, with its strong powers, and the government of the day, with its fondness for political escapism. In addition, the Code of Conduct should be updated and legislatively enshrined, with enforcement procedures outside of the executive. 

These measures will reduce the accountability gaps that currently exist within our political system. We cannot afford to continue leaving accountability to chance.

Yee-Fui Ng is a lecturer and PhD candidate in the Monash University Law School.