JACK WATERFORD. The sports rorts will taint the Canberra air for a long time.

Feb 11, 2020

We need an inquiry into how public service stewards provide dubious alibis for ministers

The sports-rorts affair continues to amaze and delight, and this week, claimed its first resignation. I predict that it will not be the last, at either the ministerial, the minder, or the bureaucratic level. All the more so given that the senate, where the government does not have the numbers,  has resolved to conduct an inquiry into what happened.

The government has no power to shut it down. Trump-like efforts to order staffers to refuse to cooperate or to appear, or orders to frustrate production of documents will make the appearances – already dreadful –worse. They will also prevent the government’s having any control over the affair’s continuing power to show impropriety of conduct, failure to give opponents a “fair go,” and the slippery ethical standards of senior members of the administration.

False arguments invented for the occasion – such as that reports into ministerial adherence to standards are regarded as cabinet documents, conventionally not made public – are being used in efforts to deprive the affair of extra oxygen. In fact they give it more, and not only within that so-called Canberra bubble where questions of adherence to process, and disinterested and impartial delivery of government grants and services are particularly important. The essential rort in the sports-rorts is easy enough for the ordinary punter to understand – particularly in the pub.

Really it would have been better if ministers had copped immediately the adverse, if neutrally phrased criticisms of the scheme from the Auditor-General. They could have hoped to have the embarrassment – either of being seen to be rorters or being caught at it — go away in the middle of the national focus on bushfires.  As ministers have been keen to point out, the skewing of grants for partisan advantage has long been a bipartisan sport, and senior Labor figures, from the Leader of the Opposition down, have been criticised without having suffered much. The National Party has always been the worst, but has never suffered before from exposure. Indeed it is ironic that Bridget McKenzie is the first National to have to do the walk of shame over the practice. That’s a match with Ros Kelly of Labor for her sports-rorts affair: given the prevalence of such rorting is there something sexist about the casualties only being women?

The memory of the Ros Kelly affair – nearly 30 years ago – also reminds of some striking parallels with the VIP affair 52 years ago. That also damaged the reputation of an otherwise well-regarded  PM&C head, Jack Bunting. But it also exposed the political and bureaucratic folly of digging in, rather than ‘fessing up when one has made a dreadful mistake.

The danger to Scott Morrison is not only his inability to control how, when and where Labor, Green and independent senators choose to grandstand on the matter. Each time it will be with innuendo about Morrison, his office and Liberal Party staffers being intimately involved in organising and planning the raid on the public purse. Words used by Morrison and other ministers attempting to excuse and justify the barefaced abuses of process will come back to haunt them. So will entirely specious claims that ministers always control how public money is dispensed, and that they are always at perfect liberty to “adjust” independent and professional assessments according to their own properly held views about relative priorities. Or spurious claims that  reports on adherence to ministerial standards are always cabinet papers. What about Christopher Pyne or the newly virtuous Julie Bishop?

It comes particularly from the Nelsonian eye of Phil Gaetjens, who was apparently unable to detect within the practical administration of the scheme any elements of an attempt to divert money to party campaign purposes. This was probably (we do not know) by sophistries suggesting that Labor seats did equally well from the minister’s exercise of her supposed “discretions”. Of course Labor did – the purpose of the exercise was to allow Liberal or National candidates in marginal Labor seats to claim credit for any grants to community organisations. Or, as the hapless and hopeless Georgina Downer claimed, when standing against Rebekha Sharkie for Mayo and delivering government grants to bowling clubs,  that it was her intervention, not that of the Centre Alliance that had secured the grant. The nasty and spiteful smell was aggravated by the conscious failure to notify or invite Labor Members when money was dispersed in their seats.

It also comes from the use made of secret legal advice, whatever it actually was, from the Solicitor-General, as mediated through the office of the Attorney-General, “clearing up” doubts expressed by the Auditor- General about the power of McKenzie, as minister, to take over and abuse publicly announced merit processes.  Like the advice of Phil Gaetjens, Secretary of the prime minister’s department, the advice has been kept secret, and one can deduce its contents only from such clues as have been given by a prime minister frequently given to gilding reports no one else can see.

No doubt there is some constitutional principle about the ultimate authority of ministers over public servants and the job that they do in the minister’s service. In the modern age, however, that authority is far from absolute, because parliament, by legislation and regulation has closely circumscribed the power of ministers, and imposed processes, legal criteria and what a former Chief Justice, Sir Gerard Brennan, developed as a doctrine of legal expectations to set proper and constitutional limits on ministerial discretion in decision making. The auditor-general was using understatement and coyness when he expressed doubts about McKenzie’s powers to intervene in, participate in, or override decision that were supposed to have been made by members of the Sports Australia board, after due consideration of whether and to what extent applications met published criteria. In one sense the advice from the senior law officers is moot, since they, and the prime minister, now apparently accept that in future cases grants in such matters should be done at arms’ length, and in accordance with general principles laid down for the fair and disinterested consideration of applications.  (It was, of course, a conscious and deliberate anomaly that Sports Australia was accidentally omitted in the schedule when the government promulgated reforms requiring common processes across government agencies in such matters).

Without seeing the advice, it is impossible to know how much the opinion was tailored for the government’s immediate political interests, but it gives every appearance of it. This is a modern day tendency at odds with the old tradition that the law officers, in giving advice, stood detached from immediate political issues and offered a cool and professional view, not a temporarily convenient one, of what the law, tradition and the public interest suggested. Of course Christian Porter, the Attorney-General, has views about transparency and accountability – as well as an almost monarchical view of a right to appoint cronies and toadies to public office.

The first duty of the secretary of the prime minister’s department is to protect the prime minister – if need be from himself or herself. It is an intrinsically political role, even when performed by an independent and professional public servant rather than a hack with a tendency to see the world through party political spectacles. A secretary needs to be alert to words or actions with the potential to get the minister, or the government, in political trouble, and advice about what is proper, appropriate or expedient will necessarily contain some open consideration of the government’s political interests.

Over the past 30 years we have developed an informal rule allowing new prime ministers to have the departmental secretary of their choice on coming to office. They think they will be better served by someone sharing their broad views and priorities. Since Dr Mike Keating took over as head of PM&C from Mike Codd on Hawke’s resignation, few secretaries have long outlived the prime minister who appointed them.

But before that, such a patronage relationship was the exception rather than the rule. Bob Hawke worked well with Geoffrey Yeend, who had been appointed by Malcolm Fraser.  Fraser worked for a year with John Menadue, who had been closely involved with the Whitlam years. Whitlam worked comfortably with Jack Bunting, a Menzies man. Menzies himself worked for nearly 10 years with Allen Brown who had been appointed by Chifley. Only John Gorton, in 1968, wanted his own man as secretary; Bunting had a brief period in Siberia while Sir Lenox Hewitt, secretary of Education and Science, was brought in; but on Gorton’s fall, Bunting was back.

Having observed both practices, I am far from convinced that a prime minister is best served by having his or her own man or woman as head of the department. What one might gain from an understanding of common views one can lose from a lack of detachment, perspective and the gaps between aspirations and realities.

The head of prime minister’s is, more or less ex officio, the head of the Australian public service. He is supposed to lead, not only in promoting, properly, the agenda of the elected government, but the ideals and values of independent professional public service. He is not supposed to be an apologist for bad practice and bad politicians.

These days the role of public servants as repositories of experience and wisdom in developing policy is not stressed. That is regarded, at least by champions of the idea that public servants are more out of touch than ministers, as rather more a matter for minders and for ministers. The focus instead is on the bureaucrat as a manager of government resources, focused on achieving the goals and policies set by government.

In a sports rorts situation, for example, it would be for a minister (if she were acting within her powers) to set the broad criteria by which she thought grants ought to be given out to sporting organisation. If it were her department, rather than an independent agency, doing its job, it would be for public servants, professionally and conscientiously following those proper guidelines, who would decide who best deserved the grants. A part of the perversity of Sports-rorts, as Bernard Keane of Crikey.com.au has pointed out, has been that the minister took on the proper functions of the agency, while the agency tried (unsuccessfully) to carry out wishes the minister, or the government, might properly have expressed.

Phil Gaetjens’s background as chief of staff to Scott Morrison (and earlier Peter Costello) as  Treasurer does not of itself  suggest any  unsuitability for the job. Any  number of former PM&C secretaries – Geoff Yeend, John Menadue, Terry Moran and Michael Thawley, for example, who have worked in the offices of ministers and prime ministers without having their integrity impugned. Gaetjens himself served Labor prime ministers in senior positions during the early 1990s. But his role as secretary involves a more detached partnership than as a very politically conscious chief of staff.

I remarked two weeks ago that the report he wrote on Bridget McKenzie’s management of sports rorts would tell more about Gaetjens than it would about Ms McKenzie’s performance. I was right, and what we have been told suggests he has not really made the transition from staffer to steward. His reportwas a great disappointment, at least from what we know from Morrison’s self-serving summary.  In my opinion, the conflict of interest – membership of a sporting club in common with many others — was not profound, even if it would have been better had she declared it. It was no more profound or necessarily disqualifying, I should think, than Morrison’s practical relationships with some of the clubs favoured in his electorate.

What was objectionable was the minister’s taking over the process and decision making of distribution – over the objections of those entrusted with the job. Gaetjens, at least according to Morrison had no problem about this, to the astonishment of observers. Barefaced and improper political considerations had become the core rationale of the program, more important the the facilities to be provided. The announced criteria and merit were thrown out the window.

If Gaetjens could not see that the distribution was blatantly political, he should visit an ophthalmologist. If seeing it, he could not see anything wrong with it (Morrison’s summary is a bit vague on the point of distinction) he should consult an ethicist, a policeman or a bartender.

Either opinion would be unworthy of an experienced public servant. That they are ascribed to the most senior public servant – one looked to for example as well as leadership – is a disgrace, reflecting as much on Morrison as on Gaetjens.

No doubt there are public servants – even senior ones — who vehemently disagree with Gaetjen’s approach to the government’s moral confusion. But who, in these vindictive days, could expect any of them to be frank and fearless?

The irony for him may well be that ten years from now, his report will stand as his lasting monument – the only thing for which he is remembered. Just as,  I expect that memory of his predecessor, Martin Parkinson’s major legacy will focus on his publicly expressed indifference about the habit of former ministers prostituting their intimate understanding of the policies, practices and personnel of their old departments. Or selling inside assessments of the thinking and vulnerabilities of their old colleagues.

Phil Gaetjens should “share” his curious theories with public servants and the public, rather than hide behind his boss’s skirts.  As with so many things about the whole affair, the longer he delays, and the longer Morrison keeps secret his role and Gaetjen’s report, the more sport the opposition and the public will have from the whole sorry affair.

Jack Waterford is a former Editor of The Canberra Times.    [email protected]

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