PM&C has ‘no power’ to enforce caretaker conventions on NBN Co

By Harley Dennett

Wednesday June 15, 2016

The Department of the Prime Minister and Cabinet has determined NBN Co chair Dr Ziggy Switkowski breached caretaker conventions by attacking Labor in his defence of a crackdown on an embarrassing leak.

But there’s nothing PM&C can do about that because the conventions have no legal force, its secretary Dr Martin Parkinson has told Labor’s finance spokesperson Tony Burke.

NBN Co initially sought clarity from the Department of Communications and the Arts about an opinion piece that eventually ran in Fairfax newspapers on May 28. Communications in turn asked PM&C for advice.

Parkinson found Switkowski had been “strongly” warned before submitting the article that it would breach caretaker conventions, he wrote in a letter to Burke published by Fairfax earlier today:

“The Department of Communications and the Arts sought, and received, advice from the Department of the Prime Minister and Cabinet that the publication of the article in that form was not consistent with the established practices associated with the caretaker conventions. I understand that view was strongly conveyed to NBN by the Department of Communications and the Arts, as was the view that the conventions apply to the chairman, as well as to the CEO and the company. Our understanding is that this view was passed to Dr Switkowski.

“However, the conventions and associated practice set out in the guidance published by the Department of the Prime Minister and Cabinet does not have legal force. This department does not have the power to enforce the observance of the conventions or practices. We provide information and advice to departments and agencies, but responsibility for observing the conventions ultimately rests with the heads of the relevant bodies.

“I can however assure you that the maintenance of the apolitical and impartial nature of the public service is a matter of the highest priority for me as the head of the public service.”

Parkinson did not explicate which parts of the offending article were most likely to undermine the conventions of caretaker period, but it is clear that Switkowski sailed close to the wind by accusing the government’s opponents of colluding with media outlets in “political rumoutrage — the circulation of misinformation to diminish an enterprise for political gain”:

“When dozens of confidential company documents are stolen, this is theft. When they are the basis of media headlines and partisan attacks, they wrongly tarnish our reputation, demoralise our workforce, distract the executive, and raise doubts where there is little basis for concern.”

He also probably courted controversy by disputing what was or was not revealed by the leaked documents:

“Contrary to media commentary, the documents did nothing to highlight poor management of the business. There are no “cost blowouts” or “rollout delays” to the publicly released plans – all one has to do is compare the data that is readily available. The documents show progress updates, options to ensure targets are met and ways to solve problems which are all normal parts of doing good business.”

In the 2010 election campaign, the shoe was on the other foot with nbn’s then CEO Mike Quigley being accused of stepping over the conventional line by the Coalition.

The government business enterprise maintains Switkowski’s op-ed was a legitimate way to maintain staff morale and defend the company’s brand and reputation.

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