This article was published in Crikey on 19th March 2010
By gate crashing a parliamentary committee inquiring into the notorious email of his media adviser Peta Duke, Victoria’s Planning Minister Justin Madden has made a scandalous situation far worse.
The email, from the office of the Planning Minister to the Office of the Premier, was also sent by mistake to the ABC, and is now public. It attached a strategy document which proposed the establishment of a sham public consultation process in relation to the redevelopment of the Windsor Hotel, in order to earn the government credit with voters in an election year.
Such a document calls in question the lawfulness and integrity of planning decisions made in the Minister’s office, and it is proper that the Parliament – the representatives of the people – should investigate it to see whether there is any abuse of the power which the Parliament, through the Planning and Environment Act, has conferred on Mr Madden.
The influence of ministerial advisers has grown enormously in recent years. These advisers, or “staffers” are on the public payroll, and can have real influence on the outcome of important public decisions. There must be appropriate accountability for their actions. The Canberra Times put it well in an editorial:
Increasingly, staffers are wielding executive power in their own right, and without reference to the minister... Staffers are taking it upon themselves to decide whether advice given is passed on to ministers, and ministers, from the Prime Minister down, flatly refuse to accept any responsibility for the office if they can claim not to have been told.
The Standing Committee on Finance and Public Administration summoned the media adviser to appear before it and answer questions about the document. She did not appear. Instead, the Minister sat in the witness’s chair and demanded to be questioned.
Committees of the Legislative Council, such as this one, hold the privileges of Parliament as a whole. Prima facie, unless there is some good cause for her non-appearance, Peta Duke’s disobedience to her summons appears to be a violation of well-established parliamentary privileges and may be a contempt of Parliament.
Parliament enforces its own orders and can punish a person for contempt, including by imposing a fine or a term of imprisonment. Parliament does not need to go to court to get an order. It can make orders itself. It will be a matter for the Legislative Council to determine what, if any, action is taken in this respect.
Both the Attorney General, Mr Hulls and the Premier, Mr Brumby, claim that there is a long-standing convention under the Westminster system that ministerial advisers do not appear before such committees. Leaving to one side the fact that in Westminster the upper house is the House of Lords – whose members are not elected and so do not represent the people – the fact is that ministerial advisers are in no different position from any other member of the public and have no immunity from appearance before parliamentary committees.
The “Children Overboard” inquiry in the Australian Senate considered the greatly expanded role of ministerial advisers, and tabled advice from the Clerk of the Senate:
...the Senate and comparable houses of legislatures have not recognised any immunity attaching to this category of office-holders. There is also no basis for supposing that they possess any legal immunity...
That inquiry also received detailed legal advice from Bret Walker SC, which concluded:
Ministerial staff have no immunity from compulsory attendance to give evidence and produce documents to a Senate committee.
As that inquiry pointed out in the 1970s the same arguments were made in an attempt to prevent public servants appearing before parliamentary committees – a practice which is now routine.
The Westminster system of government, which the Premier and the Attorney-General have cited, requires that the Executive arm of government (the Ministers and those who carry out their directions) should be accountable to the Parliament.
It appears that the Attorney General Rob Hulls either “advised” or “directed” Peta Duke not to attend the hearing: both terms have been used by the government. Any such advice or direction is a matter of serious concern.
The Attorney General should not offer legal advice to a private citizen in relation to any matter touching the government. The Attorney General is often regarded as “first law officer of the State” (Justin Madden was confused about this concept at his subsequent press conference, calling the Attorney “first law maker of the State”). It is the Attorney’s task to offer independent legal advice to the cabinet. The Attorney-General has a special responsibility to uphold the rule of law and to ensure that cabinet actions are legally and constitutionally valid.
With this responsibility to the State, the Attorney General is inevitably in a position of conflict of interest in offering any advice to a citizen in relation to the affairs of government. If such advice were given, it demonstrates that the Attorney has seriously compromised his duty to the State of Victoria.
If the Attorney used his authority to “direct” a media adviser not to obey a summons from Parliament, then Mr Hulls has committed a grave breach of his duty as Attorney General. The Ministerial adviser concerned did not work for him. He cannot provide a direction to her as her employer. He should not direct any person to disobey Parliament’s order, or to do anything which would undermine the rule of law in this way.
Mr Hulls claimed that the summons was a “denial of natural justice”. To any lawyer, the statement is ludicrous. “Natural justice” is a legal term which incorporates several principles – most notably giving a person an opportunity to be heard before making a finding touching their rights. Calling someone to give evidence is the essence of natural justice, not a violation of it.
By his crass tactics in derailing a properly constituted committee, the Minister of Planning has tried to deny the accountability of himself and his office to Parliament. The Premier and the Attorney General have supported this tactic.
This impropriety strikes at the heart of Parliamentary democracy and is a grave abuse of power.