Before the last election, a bureaucrat in the office of the Prime Minister and Cabinet attempted to embed ministerial blindness into the conventions of our government. Rex Patrick reports.
In December 2024, the Department of Prime Minister and Cabinet uploaded to its website a revised Guidance on Caretaker Conventions.
The Guidance is intended to declare and explain the longstanding conventions and practices of the caretaker period and to provide advice for the appropriate handling of business by Australian Government agencies during an election campaign.
Now, to be fair, the guidelines do offer the following caution, “The conventions are not legally binding, nor hard and fast rules. Their application in individual cases requires judgment and common sense.”
However, where is the common sense in this new advice in the guidance document?
2.6 Following the end of the caretaker period and once a new government is appointed, successive governments have accepted the convention that ministers do not seek access to documents recording the deliberations of ministers in previous governments.
One only has to think for about 20 milliseconds to realise how detrimental that advice would be. It’s akin to saying to a new CEO of a company that they cannot access the corporate history contained within their predecessor’s files. That would be a recipe for corporate disaster.
It’s advice that might be contrived if political imperatives were the driving factor, rather than good governance. And the thing is, the public service that published the guidance is not supposed to be political.
That the then Secretary of Prime Minister and Cabinet, Glynn Davis, allowed this political desire to be embedded into the guidance is a mark against his relatively good report card.
No Convention
The last sentence in the new paragraph, suggesting that there is a long-standing convention that ministers are not to see the deliberations of previous ministers, is just plain wrong.
Whilst there exists a well-established convention that new governments are not to see Cabinet documents from past governments, there’s no such convention suggesting new ministers cannot see (non-Cabinet) documents from past ministers.
Curious as to where the idea came from that there was a long running convention for new ministers not to have access to the corporate knowledge contained in documents and records of a previous minister’s reign, I directed a Freedom of Information (FOI) request to the Department of Prime Minister and Cabinet (PMC) for evidence that such a convention exists.
I got a nil return. All they found were documents relating to the Cabinet convention.
I also sought access to the documents that explained how the offending paragraph made its way into the Guidance on Caretaker Conventions, and got this:
Mr Ananijevski, the official who put the idea forward without citation, also recognised that the view being expressed “may not be a universal view.” Indeed, his ideas were at best conjecture; a well-informed reader of the guidelines might call it out for the BS that it is.
And yet it somehow made it into formal guidelines that are intended to explain how a responsible system of government works.
Perhaps Mr Ananijevski was oblivious to the fact the Commonwealth had adopted an argument in Attorney-General v Patrick [2024] FCAFC 126 that successive Ministers hold different offices, meaning there is no expectation that a document that was in the possession of a former Minister will be in the possession of a subsequent Minister (especially a Minister of a different government). The Full Federal Court wasn’t at all persuaded by the argument.
Rex Patrick v Mark Dreyfus court battle a big win for political integrity
Bad policy
Imagine building a new apartment block, and halfway through the build, the building site manager leaves the project. What possible benefit would flow from denying the new building site manager access to the documents and decision rationale of the old building site manager?
The documents of a minister are the documents of the office of the minister.
They are not the documents of the person who is appointed to the position of minister or, from time to time, performs the duties of the position.
In Patrick v Attorney General, Justice Charlesworth noted that information held by the Government is to be managed for public purposes and is a national resource.
No matter how much the Department of Prime Minister and Cabinet would like to please departing ministers and give a ‘nod and wink’ to new ministers, what has happened here is bad policy. It’s like they think their first duty is to ministers, and not the Australian public.
The truth is, I can only guess the motives behind what has happened. I’m left trying to guess just what was Assistant Secretary Branko Ananijevski thinking?
Rex Patrick is a former Senator for South Australia and, earlier, a submariner in the armed forces. Best known as an anti-corruption and transparency crusader, Rex is also known as the "Transparency Warrior."