Governing not by conventions, but by what you can get away with

By John Daley

Wednesday July 28, 2021

Conventions generally existed for good reason, and without them, governance has gotten worse,
Conventions generally existed for good reason, and without them, governance has gotten worse. (AAP Image/Lukas Coch)

Conventions lie between the black-letter rules of a constitution and legislation, and the realities of politics and administration. You cannot understand how government really works without understanding the conventions more or less accepted by all players about how the system should run.

Over the past 20 years, governments have eroded many of the conventions that were part of the fabric of Australian government. Those conventions generally existed for good reason, and so governance got worse. And poor governance is leading to the failure to adopt good policy, as shown in Grattan Institute’s new report, Gridlock: removing barriers to policy reform.

Conventions have many advantages over black-letter laws. Precisely because they are not legally binding, conventions focus minds on the underlying rationale rather than a particular formulation of a rule. And they allow for exceptions and variations when the situation really demands it.

Many conventions are maintained because players overwhelmingly believe in the system they create. The most fundamental is the peaceful transfer of power to a new prime minister after an election – although as January 6 in the US illustrated, we should never take that for granted.

Often, conventions are maintained because of a prisoner’s dilemma. Each major party appreciates that breaching the convention will be met with reprisals that leave everyone worse off. For example, both major parties continue to abide by the convention that ministerial advisers should not be called before parliamentary committees, despite the ‘black hole of accountability’ that this creates, because advisers from both of the major parties want to avoid exposure.

But the weaknesses of conventions are exposed when a group decides that breaking a convention serves their self interest, even though it hurts the public interest.

The conventions of our democracy have weakened considerably over recent decades. Ministers are much less willing to resign for misleading parliament, for acting when there is a perceived conflict of interest, or for incompetence. No one, for example, has resigned for the robodebt fiasco, which has cost the commonwealth hundreds of millions of dollars, and probably contributed to a number of suicides as well as untold trauma among the most vulnerable communities in Australia.

Conventions once bound governments to appoint people who were best qualified for the role, irrespective of party affiliation. Yet one fifth of all those appointed to the AAT in the past six years have coalition connections. The coalition has routinely ignored the advice of the panel responsible for recommending appointments to the ABC Board. Governments have over-ridden the advice of the independent selection panel that recommends appointments to the boards of a variety of energy regulators. Government business enterprises tend to have a significant number of directors well-connected to the side of politics in power when they are appointed.

Pork-barrelling has been with us a long time, but it is becoming more widespread, larger, and more brazen. Twenty-five years ago Ros Kelly resigned as minister for her involvement in a sports rorts affair that seems tamer than more recent examples. Today, pork-barrelling is waved away so long as the election is won.

Governments once tolerated competent senior public servants even if they didn’t share the views of the government. But in the past 20 years, almost a third of all commonwealth government department secretaries have been sacked. Barnaby Joyce reflected that: “One of the only ways I could deal with [the bureaucrats] when I was the Ag minister was [that] I invited the head of the department up, brought him into my office and sacked him – just to remind him where the authority starts from. And then I got a lot more sense out of the rest of them.”

Governments once tolerated departments expressing their own views to parliamentary committees, even if they were not consistent with the views of the minister – or other departments. Today, ministers effectively forbid them, and the Treasury no longer publishes 12 articles a year of internal staff work in the Economic Roundup.

Similarly, conventions about open government have been closed. Cabinet-in-confidence and commercial-in-confidence exceptions are increasingly used to conceal details that governments in other countries routinely release without obvious problems. When governments make grants and sign contracts with those who are well connected to their party, this secrecy just reinforces the impression that governments are governing for their mates, rather than the country.

In general, there is a tendency not to play by the rules or the conventions but according to what you can get away with. For example, the federal coalition government appears to have paid scant attention to constitutional and legislative rules governing sports grants when there was no real prospect of legal challenge.

Governing a country this way weakens it. Many of the conventions that have been trashed aimed to protect the public interest from the self-interest of major political parties and the professionalised class of ministerial advisers, members of parliament and government advocates who depend on their party connections. With less focus on the public interest, governments are less likely to push through policy reforms in the public interest that run counter to public opinion or party tribal beliefs.

In an ideal world we would repair the damage by restoring adherence to conventions that put the public interest first, while maintaining flexibility. But for many conventions, too much damage has been done. For example, if one side of politics appoints its own to public office, then inevitably the other side does the same, if nothing else to ensure ‘balance’. Those best qualified in the middle never get a guernsey.

So we are now in a second-best world in which many conventions no longer guide behaviour, and need to be replaced by black-letter law. Such laws will be less flexible than the conventions they replace, but at least there is a chance that they will direct behaviour in the public rather than party interest. And they will only work if they are enforced – because mere political pressure is becoming increasingly ineffective. That’s why a functioning federal independent commission against corruption – with teeth – has become imperative.

Unfortunately, the behaviour of those involved in our system means that we cannot rely on conventions as much as we once did. Many of the new rules that we need will only be introduced if there is either public outcry, or independents holding the balance of power insist on them. It’s a far from perfect world. But it would be better than where we are.

Gridlock is John Daley’s last report for Grattan Institute, where he was the CEO from its creation in 2009 to 2020.

 

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