Tom Burton: how ‘independent’ is the AHRC anyway?

By Tom Burton

Thursday February 26, 2015

What was always a thin line of independence between statutory agencies and the central government became even more blurred when Prime Minister Tony Abbott declared the government had no confidence in the judgment of Human Rights Commission president Gillian Triggs.

There is a reality that exists for all statutory agencies — from the spaghetti soup of regulating acronyms like the ACCC, ASIC, APRA and ACMA, along with big government business agencies such as the National Broadband Network, Australia Post and the ABC. They all live in a strange “fauxness” — independent and protected by statute, but tied to government for funds, remit and, at the end of the day, appointments.

This gives these so-called independent agencies the right to make their own calls, but not control their destiny. In the real world this means these agencies invest extraordinary effort to not bite the hand that feeds them.

“… in day-to-day government there is no more important stakeholder than the minister and their department.”

In the trade of public administration they call it stakeholder management, and in day-to-day government there is no more important stakeholder than the minister and their department.

In theory these statutory agencies are free to make their calls and report through the palaver of annual and corporate reports, overlaid by the circus that is Senate estimates. In practice, good stakeholder management is about making sure there are no surprises and everyone in the “family” (the relevant portfolio) is happy.

Day to day that means many emails and phone calls (partly to avoid embarrassing freedom of information trails), squaring off any issues that might prove problematic for a minister. Words are relentlessly finessed and timings endlessly discussed between officers in a triangle of the agency, department and the MO (the ministerial office).

Not feeding controversy when Parliament sits or estimates hearings take place is one of the unwritten rules of good stakeholder management. Releasing materials under the radar (like on a obscure website page late in the day) are all part of the repertoire of finessing.

This is not to suggest sinister behaviour — a similar phenomena of relationship management exists between executives and corporate boards and analysts — but more to observe that there is a very close and highly managed relationship between these so-called independent agencies and their Canberra departments and ministers.

There is endless Vatican City-like politics between the big agencies and their mother departments.

Funding is a critical power game, with departments able to starve regulators of resources even as agencies are required to do more and more. Some departments relentlessly demand their portfolio agencies report in micro detail, and intervene on issues such as office location and even car parking.

Efficiency dividends are exempted for some (the ABC and ACMA enjoyed some respite under the previous government ) but not all. These are typically a ministerial call and a powerful reason to stay on the right side of the minister. The ABC now finds itself at the sharp end of a funding cut that was engineered by Malcolm Turnbull’s inquiry into comparative costs with other broadcasters.

The independence of agencies is further blurred by the relentless set of all-of-government reporting and other requirements. Portfolio red tape reduction targets are just the latest Canberra initiative, accompanied by the requirement to regularly report efficiencies. Regulatory impact statements are now mandatory for any new regulatory play, and these all have to be vetted by the Office of Better Regulation.

“The independence of agencies is further blurred by the relentless set of all-of-government reporting and other requirements.”

Appointments are another powerful lever Canberra uses to get its way. There is the obvious self-interest of a statutory office holder who seeks reappointment either to their own agency or another; these are typically well-paid sinecures without the stress and strain of private sector demands.

In the real world of statutory agencies the type of minister and the history also matters. Over at NBN Co, they have never made a substantive decision without running it past their minister. This was true under Stephen Conroy and perhaps even more so under Turnbull.

In the Communications portfolio Turnbull is known as the executive chair, such is his tendency to want to manage.

None of this is particularly new. Then-communications minister Helen Coonan and her chief of staff Peta Credlin (now the PM’s controversial office master) made it bluntly clear they did not want the ACMA to probe broadcaster Alan Jones’ coverage of the Cronulla riots in the mid-2000s. When the report came down adverse to Jones, Coonan was quick to support the shock jock.

Compared with the many previous prime ministerial interventions into media regulation, it was probably small beer. But what does seem to have changed is the degree of blatant destabilising that is now standard practice in Canberra.

Part of the explanation for the vindictiveness of some against Credlin is the belief — rightly or wrongly held — she has been at the forefront of briefings against her own ministers. How much of this is at her master’s call is what has driven much of the cabinet’s now endemic mistrust of each other and is fuelling a tit-for-tat war of leaks, background briefings and destabilisation.

In this hothouse of denigration it is an easy step to rationalise the same sort of activities against senior public servants — especially when it comes to those critical of one of the government’s signature achievements: stopping the deaths of thousands at sea.

More at The Mandarin: The minister, the job offer and the secretarial messenger

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