There has been enough talk about ministerial staff in the Commonwealth government over the last couple of years to sink a battleship. It’s now time to do something.
The fundamentals of the contemporary ministerial office can be traced to the Whitlam government. Until then these offices had been predominantly staffed by public servants on secondment; Whitlam ministers brought in people from other places both to assist with policy and politics. Few could have envisaged how Whitlam’s legacy would play out or imagine the pits to which the system sunk under Morrison’s rule leading to several reviews and a welter of commentary, some of it sensible and well informed.
Much of the chat has been around the quaintly titled Members of Parliament (Staff) Act, popularly known as the MOPS Act. It was introduced in 1984 to provide a proper legal basis for the employment of ministerial staff and the staff of all parliamentarians. The Act also thwarted an ALP pre-election policy that would have formally politicised the public service by giving ministers the power to make appointments to a proportion of Senior Executive Service positions. The Act has been an important and enduring reform.
In a sense, however, the MOPS was a child of its times and was premised on assumptions about the bona fides and behaviour of Ministers and their staff whose sunny optimism has been dimmed by lamentable experiences during the Morrison era when the number of ministerial staff swelled to almost 500, eight times the number in Whitlam’s time.
Nevertheless the Act’s fundamentals remain sound. Its basic structure should be maintained, including its provisions for ministerial consultants which are an important bulwark against further attempts to politicise senior appointments in the public service. At the same time, Ministers should continue to have considerable freedom in the selection and tenure of staff for their offices. However, to better fit with modern times the MOPS can usefully be augmented.
Some have suggested including a code of conduct for ministerial staff in the MOPS Act. That’s fine but it would achieve little of itself. If the risks of repeating recent history are to be minimised, the Act should provide more specific regulation of the basics – the selection, discipline and tenure of staff.
In the first place, to minimise the possibility of ratbags getting into ministerial offices, section 13(2) of the MOPS should be expanded to require Prime Ministers to determine by delegated legislation procedures for recruitment and selection including selection criteria and the provision of independent advice on appointments of ministerial staff and their security and other vetting, induction and training and discipline, grievances and termination. That would preserve a parliamentary role in approving procedures while allowing them more readily to be amended as necessary. The Act should also require the Prime Minister to provide a detailed annual report to Parliament on the operation of these procedures and all other matters relating to ministerial staff.
Second, section 16(5) of the Act should be expanded to give the Prime Minister a power to overturn Ministers’ decisions to dismiss their staff in any circumstances and not just those now specified in section 16 (1) and (2). This would put a brake on cavalier actions by Ministers, provide time for the consideration of any grievances and allow better opportunities for staff no longer required by one Minister to be redeployed to another’s.
Third, in order to minimise disincentives for public service staff to be engaged in minister’s offices, the MOPS should include provisions for their return to the public service including the use of an independent panel to determine the level at which they should be re-integrated.
Fourth, an independent authority should be established to consider any grievances from ministerial staff and provide advisory reports to the Prime Minister and the Public Service Minister. Such an authority could perhaps be a part-time statutory officer located in and supported by the staff of the Public Service Commission.
A matching although slightly different code of conduct and personnel procedures could be provided for the staff of non-ministerial members of Parliament.
In addition to these changes in the MOPS Act, governments should keep the numbers of ministerial staff to the absolute minimum – it is impossible rationally to justify the almost 500 employed by the Morrison government. Further, Ministers should be encouraged to include more public servants in their offices, not just as departmental liaison officers but as people who can assist with the consideration of public policies and their administration, these being abilities often not abundantly possessed by those principally engaged in political management.
For some months the Department of the Prime Minister and Cabinet has been conducting a review of the MOPS Act. A report was due to be given to the Prime Minister at the end of September. If that report contains recommendations similar to or consistent with the suggestions above, it should immediately be acted upon.
The report should be referred to the recently appointed Secretary of Public Service Reform. Improving the MOPS Act should be at the top of his priority list. He in turn should ask one of his middle ranking public servants to prepare a draft Cabinet Submission, a task that could be completed in a day with a view to a prompt government decision, the passage of legislation before the end of the year and full implementation early in 2023.
The critical role of ministerial staff in the proper connection of Ministers and the public service should be properly fostered by the law so the MOPS should be adjusted to the best form possible. The time for talking is over – action is now required. This isn’t difficult so there’s no reason for delay.