Inside Story

Who’s minding the minders?

The government’s planned regulations aren’t tough enough to bring ministerial staff under control

Paddy Gourley 14 September 2023 1535 words

A legal code of conduct would provide a clear statement of expectations about minders’ behaviour in Parliament House and elsewhere. CraigRJD/iStockphoto

It’s a pity that public administration is usually seen as a tedious subject. As robodebt and too many other scandals have shown, the quality of government and the wellbeing of society depend significantly on the effectiveness and efficiency of public service departments.

Ministerial staff, on the other hand, have provoked much greater curiosity. In the 1970s, principal private secretaries Ainsley Gotto and Junie Morosi carved swathes during the Gorton and Whitlam governments, though few have since matched their flair. Much less colourful as an adviser was the current prime minister, who cut his political teeth on the staff of Tom Uren, local government minister in the Hawke government, and Bob Carr, premier of New South Wales.

Whether in the Gotto–Morosi or the Albanese mould, ministerial staff still grab a headline or two, if sometimes for the wrong reasons. They inhabit an area of the public service where accountability is minimal but proximity to power gives a sense of dash, even of gravitas — whispering in ministers’ ears, digging their leaders out of strife, telling senior public servants what to do, flitting around sometimes in VIP planes and perhaps glugging on a beaker or two of pinot grigio in a Qantas Chairman’s Lounge.

So when things go wrong with ministerial staff, people prick up their ears. And things have gone wrong with them, and with their ministers and other members of the federal parliament — wrong enough for the Human Rights Commission to be asked to review the scene. Its 2021 report, Set the Standard, made many recommendations about how Parliament House could be smartened up as a workplace.

One consequence of that report is legislation to create a new statutory body, Parliamentary Workplace Support Services, which will deal with staffing, complaints, education and training, and related matters affecting Parliament House’s denizens.

Set the Standard also recommended a review of the Members of Parliament (Staff) Act, now fondly known as the MOPS Act, which provides a legal base for the employment of MPs’ staff. The review, recently completed by the Department of the Prime Minister and Cabinet, is important because ministerial staff have become a linchpin between ministers’ offices and the public service. Where that connection has not worked as it should, things have often turned sour.

Before I say any more about the bill, though, a little history.

In 1983, Labor offered voters a pre-election policy on, of all things, the public service. That policy proposed reserving a proportion of senior executive service positions for political appointments, a move — however well intentioned — that would have disastrously compromised merit staffing.

The MOPS Act was designed as an alternative to Labor policy. (I confess I played a role in advising on and implementing it.) It allowed ministers, under certain conditions, to engage ministerial consultants who could be employed within departments. But it avoided a further politicisation of the public service by limiting the tenure of consultants to the period for which the appointing minister was in charge of the relevant department. Almost as an afterthought, the MOPS also gave ministers and other MPs legal power they’d not previously had to employ their office staff.

The MOPS legislation came into effect in 1984 and it has not been materially changed since then.

Now, based on the review by the Department of the Prime Minister and Cabinet, comes a bill that would materially change the MOPS Act. Some of the proposed changes are for the good, some are not, and some that should have been made have been left on the shelf. The MOPS Amendment Bill might not be as bad as the ridiculously inadequate Public Service Act Amendment Bill, also now in parliament, but it could have been a lot better.

On the positives, the MOPS Amendment Bill would do three important things. It would introduce employment principles designed to improve the behaviour of MPs and their staff. It would better define the employment responsibilities of ministers and other MPs, and elucidate different categories of staff. And it would clarify and improve termination arrangements in association with provisions in the Parliamentary Workplace Support Services Bill dealing with dismissal, grievance procedures and so on.

Given that the optimistic assumptions about the behaviour of MPs and their staff that underpinned the MOPS Act have been invalidated over the years, these changes are welcome. Unfortunately, though, the MOPS Amendment Bill heads south from that point on.

The bill would cut the heart out of the MOPS Act by removing the ministerial consultant provisions. It is as if the bill’s designers have taken fright at the word “consultants” (now an eleven-letter swear word) and simply reacted by removing it from the bill. Their explanation is that the provisions have not been used and are therefore “obsolete.”

But the consultant provisions were never intended to be greatly used. Their purpose was to protect against any return of Labor’s notion of reserving a proportion of senior executive service positions for political appointment, and to block insidious, backdoor pressures from ministers to insinuate their nominees into the public service. Any ministers trying such tricks could be deflected by the consultant provisions.

The fact that they’ve not been much used is not a sign of obsolescence; it’s a sign of success. Their planned demolition ignores the deterrent value of many little-used laws. Indeed, getting rid of laws because they’re not much used would probably wipe out half of what are now on the books.

As the MOPS Amendment Bill errs in what removes, so too is it deficient in what it fails to include.

The administrative code of conduct for ministerial staff has been around for many years. Because it doesn’t seem to have done much good, the 2019 Thodey review of the public service and the robodebt royal commission recommended it be replaced with a legislated code. The government has squibbed on those recommendations; the MOPS Amendment Bill doesn’t propose a code for ministerial staff or one for other MOPS staff.

That’s a shame because a legal code of conduct would provide a clear and unavoidable statement of expectations about proper behaviour and a solid base for keeping staff up to the mark, including with disciplinary measures.

For these reasons parliament has put a legal code of conduct for departmental and agency staff into the Public Service Act. For the government to refuse to do likewise for ministerial staff is hypocritical. If it is not to join the government in this two-faced mire, parliament should insist on legislated codes of conduct for ministerial and all other staff employed by MPs.

For all their value, legal codes of conduct are at risk if recruitment procedures allow ratbags to be employed. The MOPS Amendment Bill includes a provision requiring ministers and MPs to assess whether staff they wish to employ have the appropriate capability. That too-small step is typical of this bill.

True, it provides for the prime minister to regulate what kinds of staff can be employed and to establish related arrangements and conditions, but the powers are unspecific. For ministerial staff, the government (or the prime minister) should be required to establish by delegated legislation suitably tight procedures for selecting ministerial staff, for receiving independent advice on appointments, for security and other vetting, and for induction and training.

Unlike recruitment to public service departments, current procedures for ministerial staff are opaque and vulnerable to shady dealing. While ministers (and other MPs) need scope to employ staff with whom they can get on, more open recruitment procedures would promote public confidence and minimise the ratbag risk.

During the Hawke government, many senior positions in ministers’ offices were occupied by public servants on secondment, a factor contributing to a high point in productive relations between ministers and the public service. While those days are long gone, ministers would do themselves a favour by seeing that their offices include a reasonable seasoning of competent public servants.

There is, however, a disincentive for public servants to sign up with ministers’ offices. In doing so they effectively rule themselves out of promotion within the public service, often for years. With the Hawke government this disincentive was reduced by arrangements whereby public servants returning from ministers’ offices could be reintegrated into their department at a level appropriate to the length of time they’d been on secondment and the kind of work they’d done during it. These provisions should be brought back.

Finally, the Parliamentary Workplace Support Services Bill’s provisions for reporting on employment under the MOPS Act are insufficient. It should be up to the government itself (or the prime minister) to report on the employment of ministerial staff; after all, those given statutory powers by parliament should account directly for their exercise rather than rely on others to do so. Points of authority and accountability should match up.

It’s a pity the MOPS Amendment Bill is so modest and weak, errs significantly in removing the ministerial consultant provision, and omits more important provisions than it contains. Timidity, public service incapacity, an unwillingness or inability to see what’s important in the historical background and a sheer lack of imagination continue to dog attempts to improve the Commonwealth public service. •