The ‘Utegate’ affair and the constitution

In the so called “Utegate” affair the Treasurer, Wayne Swan, is accused of misleading the Parliament in relation to the degree of assistance given to a car dealer close to the Prime Minister. Calls for his resignation, and that of the Prime Minister and Leader of the Opposition have been made. This will no doubt be resolved through the political process.

There is one aspect of the affair which relates to our constitutional system. This is the role and function of Treasury officials and indeed the public service. In our system, the Australian Crown is the employer of the public or civil service, and not the ruling political party. The loyalty of the public servant must therefore be to the non political Crown and not to the politicians. This enforces the obligation of the public servant to act within and according to law, and to provide advice not influenced by, and indifferent to, political considerations.

But in the last few decades politicians have sought to undermine the independence of the public service. This has not been restricted to one side of politics.

In The Australian Glen Milne writes that former Treasury head John Stone, telephoned him “ genuinely upset” about what he had seen, and what had been reported regarding the fact that Treasury head, Ken Henry, had been kept in the email loop on the progress of the case of the motor car dealer alleged to have received preferential treatment. He told Glen Milne:

If, as secretary to the Treasury 25 years ago, I had received from Mr Grech the first email which he appears to have circulated on this matter, my immediate response would have been twofold:

First, to call Mr Grech and his immediate superior to my office and instruct them personally that no (repeat, NO) action was to be taken along the lines requested by the Treasurer's office (and according to Mr Grech, initially by the Prime Minister's office) until I had spoken personally to the Treasurer.

Second, to seek immediately a meeting with the Treasurer himself, with a view both to warning him, in writing, about the apparent impropriety of the requests being made to Treasury officers in his name, and stating to him my view that the actions requested on behalf of Mr Grant were well beyond the bounds of ethical acceptability on the part of Treasury officers.

If, in the course of such a meeting, the Treasurer should decline to accept the secretary's advice as tendered, the latter should seek from him a direction (in writing) that, the secretary's advice notwithstanding, Treasury officers are to pursue the course originally requested.

If such a direction is then given, the secretary should advise the Treasurer that he wishes his views on the matter to be placed before the Prime Minister for the latter's final determination.

If, that having been done, the Treasurer's original decision be upheld, the secretary should give serious consideration to resigning from his office.

What John Stone is raising is far more important than the stories which are exciting the media and the Parliament. This is how the politicians have compromised the independence of the public service.

The nonpartisan public service ...

The emergence of a nonpartisan public or civil service in Britain coincided with the withdrawal of the Crown from political activity and the emergence of the constitutional monarchy as we know it. In advice which was equally applicable to Australia, Walter Bagehot in 1867argued that, to assure popular rule, there were only two constitutional models available to Canada: the British or the American constitutional model.

Not only did he think a non-partisan public service did not prevail in the US, he believed it was impossible.

The contrast between the public services of the Commonwealth Realms and those of the US remains, even if in Australia in recent years there has been some regrettable blurring in the higher echelons. Few would doubt that the ideal of an independent public service should remain.

A constitutional monarchy is a fertile field for this because it is designed to allow an easy transfer of political power, the prime minister being untenured and at all times dependent on the confidence of the lower house.

But in recent years the politicians have gradually undermined this system. This is far more important then the "Utegate" affair.