Pearls and Irritations

Trust is a crucial element of government, in two different but related ways.

The way we normally think of it is: do we trust the government (and/or people in it). The other meaning of trust is a centuries-old concept borrowed from the law – the notion that government is a public trust – that people who hold public office such as ministers, members of parliament and public servants owe a duty to the public similar to that owed by a person who is a trustee – they are required to act in the interests of the public, not in their own personal interests.

 As for the first meaning, trust in government in Australia is at an all-time low. According to the ANU’s election study last year, just one in four Australians surveyed believe people in government can be trusted.

 As for the second meaning, the popular verdict is even more damning. The number who think government is run for all the people is just half that – one in every eight. More than half think government is run for a few big interests.

 This appalling (for those who value democracy) state of affairs is being further eroded, and at a disturbingly rapid rate, by the actions and words of the Morrison Government in Canberra.

 The public trust doctrine is at the heart of the document detailing the standards supposedly required of ministers in the Morrison Government – standards which it is up to the Prime Minister to enforce.

 The principles state:

 In recognition that public office is a public trust, therefore, the people of Australia are entitled to expect that, as a matter of principle, Ministers will act with due regard for integrity, fairness, accountability, responsibility, and the public interest, as required by these Standards.

 And then:

 1.     (i)  Ministers must ensure that they act with integrity – that is, through the lawful and disinterested exercise of the statutory and other powers available to their office, appropriate use of the resources available to their office for public purposes, in a manner which is appropriate to the responsibilities of the Minister.

2.     (ii)  Ministers must observe fairness in making official decisions – that is, to act honestly and reasonably, with consultation as appropriate to the matter at issue, taking proper account of the merits of the matter, and giving due consideration to the rights and interests of the persons involved, and the interests of Australia.

 If these principles had been applied by the then Minister for Sport, Bridget McKenzie, she would not now be the subject of an adverse audit report, an examination by the head of the Prime Minister’s Department into her actions, or a study by the Solicitor-General of whether the law was broken and how it can be (retrospectively) fixed.

 As time has gone by, journalists have discovered (and/or been provided with) more and more details of the smellier aspects of the funding rort. All the more reason why the Prime Minister should be regretting his initial and continuing defence of the Minister (no doubt in part because she is the Deputy Leader of the National Party – but that’s one of the hazards of coalition government).

 The Audit report, in its summary, said in part:

 7. The award of grant funding was not informed by an appropriate assessment process and sound advice.

10. …The Minister’s Office drew upon considerations other than those identified in the program guidelines, such as the location of projects, and also applied considerations that were inconsistent with the published guidelines. It was this assessment process that predominantly informed the Minister’s funding decisions, rather than Sport Australia’s process. This resulted in the assessment advice to the Minister being inconsistent with the approved program guidelines.

 That should have been enough, given the requirement in the Ministerial Standards that the Minister should ‘act honestly and reasonably, with consultation as appropriate to the matter at issue, taking proper account of the merits of the matter, and giving due consideration to the rights and interests of the persons involved, and the interests of Australia.’ Morrison should have at the least stood her aside while the Solicitor-General and his Departmental Secretary did their work. Or maybe he knew that his own office might have had a finger in the sports rorts pie? Not to mention the approval by him and his cabinet colleagues of additional funding for the exercise one it was underway.

 We are accustomed with this government (and many of its predecessors) to have Ministers who do not adhere to the strict requirements of the public trust doctrine. That’s one of the reasons for not trusting them. However, there is actually something in the Audit report of even more concern.

 The report said, ‘while the program guidelines identified that the Minister for Sport would approve CSIG funding, there are no records evidencing that the Minister was advised of the legal basis on which the Minister could undertake an approval role, and it is not evident to the ANAO what the legal authority was.’

 It should be understood that ANAO was (not-so-subtly) telling us that the Minister was acting completely without legal authority. Checking such things is one of ANAO’s functions. But it has to be careful about providing a legal opinion – even though this particular area is well within its area of legal expertise.

 Another strike on the ministerial standards list – Ministers have to act ‘through the lawful and disinterested exercise of the statutory and other powers available to their office’. Lawful?

 The ANAO report says: ‘There are no records that evidence that the Department of Health or Sport Australia advised the Minister on the legal basis on which the Minister could undertake an approval role for the CSIG program.’

 Then this:

 2.17 In early June 2018, Sport Australia recorded that adherence to the ASC Act required that it, not the Minister, approve the award of CSIG funding. In late June 2018 the Department of Health identified that, in the event the Minister was to be the approver, legal advice may be required on the use of the section 11 directions power in order for the Minister to be able to undertake this role. The Department of Health advised the ANAO in November 2019 that this legal advice was not sought.

Why not? At what level in the Department was it decided that ignorance is bliss – that it would be best not to know, officially, that what the Minister was doing was not supported by any law?

 It is bad enough when Ministers, aided and abetted by their ministerial political staffs, act contrary to the public trust required of them,  but it is absolutely disgraceful when a public service department, having notice that a Minister may be acting outside her legal authority, decides to turn a blind eye to what she is doing.

 ‘Frank and fearless’ advice may have gone out of fashion. But we have a right to expect public servants to do their duty and act in accordance with their public trust obligations.

 Regrettably, it seems that may not always be the case with Mr Morrison’s government.

 David Solomon is a former legal and political journalist. He was Queensland’s Integrity Commissioner 2009-2014.