Thu Apr 20

why Victoria’s IBAC report should concern all Australians

Written by: William Partlett, Associate Professor, The University of Melbourne

This week, Victoria’s Independent Broad-Based Anti-corruption Commission (known as IBAC) issued a finding ^[1] of “improper influence” on a public contract issued by the Victorian government in 2018.

IBAC did not find any “corrupt conduct” under the IBAC Act and no minister was directly involved.

On this basis, it might be possible to dismiss this report as the regrettable result of a complex governmental apparatus. After all, this was a small contract in the grand scheme of Victorian state spending, and you might think the news cycle should move on to focus on more important issues.

But this report should not be ignored. It casts important light on a growing threat to Australian parliamentary democracy: the exercise of public power by unaccountable ministerial advisors.

Operation Daintree

The Operation Daintree report ^[2] investigated a $1.2 million contract between the Victorian health department and the Health Education Federation (HEF) to provide occupational violence and aggression training to health workers. The contract was signed in the hours before Victoria’s government went into caretaker mode prior to the 2018 election (the government can’t sign contracts in caretaker mode).

Despite having no relevant experience in this kind of training, HEF received this contract without a competitive tender process.

IBAC found two ministerial advisors “improperly influenced” this contract. These advisors – who are employed by the premier under Victorian law – put pressure on key public servants to award the contract to HEF.

Former Health Minister Jenny Mikakos described ^[3] this pressure as a reflection of the interest of the “premier’s office” in “accommodat[ing] any union concerns”.

A threat to responsible government

Australian democracy is built on the concept of “responsible government” in which parliament holds governmental ministers to account through lawmaking and oversight. Although parliament doesn’t actually prosecute governmental misconduct, its role as overseer generates crucial information and publicity that holds these governmental ministers politically accountable.

Operation Daintree details an emerging gap in this traditional form of democratic oversight and accountability: the rise of powerful ministerial advisors.

Ministerial advisors are more powerful than ever at all levels of Australian government. For instance, former prime minister Tony Abbott’s chief of staff, Peta Credlin, was widely regarded as one of the powerful players in the federal government at the time. One Liberal Party insider said of her ^[4]: “She’s tough, she’s a player, she makes demands, she gives directions, she bawls people out.”

While these advisors play an increasingly powerful role in governance, they tend to operate in the shadows. In contrast to the rigorous standards of independence for public servants, ministerial advisors are political appointees who are largely accountable only to their minister. For instance, advisors are generally thought to be immune from testifying to parliament ^[5].

In this position, they can operate ^[6] in a way they think the minister would support, while providing plausible deniability to that same minister.

This problem isn’t unique to Victoria. It also emerged in the so-called “sports rorts ^[8]” scandal under former prime minister Scott Morrison.

In that case, Commonwealth grants were awarded to sports clubs in important constituencies in the upcoming election. The relevant minister, Bridget McKenzie, sought to deflect blame ^[9] for this allocation of money onto unnamed advisors.

Associate Professor Yee-Fui Ng at Monash University describes their rise broadly as contributing ^[10] to the “erosion” of ministerial responsibility.

Injecting accountability back into the system

How can we address this increasing problem of unaccountable ministerial advisors?

One option is expanding the Ministerial Staff Code of Conduct to cover more of their activities. This would go some way to bringing them out of the shadows.

But another vital reform is to shine more light on advisors. Parliament must hold ministers – including the prime minister or premier – responsible for the actions of their advisors. This should happen through an independent parliamentary committee that has the explicit legal authority to call both ministers and their advisors to answer for their actions.

IBAC hints at this very solution in the report. In the report, IBAC says the Victorian parliament may hold the premier “personally responsible” for “the conduct of his staff and its consequences, where he was aware of their actions or ought reasonably to have been aware of them”.

The obvious institution to do this would be an independent Parliamentary Ethics Committee, which IBAC and the ombudsman called for in the Operation Watts report ^[12] in 2022.

This committee should have the power to call witnesses and further investigate unethical conduct that does not meet the definition of corrupt conduct. This kind of parliamentary inquiry would shine important light on bad governance and serve as a powerful deterrent for further actions like this.

This solution carries broader lessons, too. It suggests that improving governmental integrity – particularly the kind of so-called “grey corruption ^[13]” at issue here – isn’t just the business of anti-corruption bodies. It also must be the business of parliament.

Independent committee scrutiny of unethical behaviour is just one example of parliamentary involvement. It could also include stronger legal requirements that ministers (including the premier or prime minister) respond openly to questions from parliament.

Overall, these reforms are critical in ensuring parliament is restored as the original integrity institution ^[14] in Australian parliamentary democracy.