Public Sector Informant | Richard Mulgan: Scott Morrison inquiry poses question about APS ability to speak truth to power

Minimally, according to the report of Justice Virginia Bell on the former prime minister's multiple self-appointments to a range of major ministries.

When faced with Scott Morrison's unprecedented and unheralded expansion of his powers, his chief public service advisers in the Department of the Prime Minister and Cabinet provided a limited and muted response.

The department accepted the original appointments to Health and Finance as being legal and justified by the pandemic crisis. Later, when further portfolios were added, its focus was on the prime minister's intention to decide applications for petroleum exports made to the department of industry.

A paper prepared by the head of the government division, pointed out the possibility of legal risks, including the risk of a successful legal challenge to a decision. It also offered various other options of how to achieve the same outcome without the need for the prime minister to control the portfolio.

On the broader issue of the propriety of the appointments, the official commented that they were "unusual" and later sent an email to the secretary, Phil Gaetjens, and all the deputies, indicating that the prime minister was about to be placed in charge of six of the government's fourteen portfolios. The term "unusual" was presumably designed to flag that there might be something questionable that was worth further discussion, as was the device of a widely circulated email. In the event, Gaetjens chose not to take the matter up.

But the appointments were not merely unusual. They were also unconstitutional. As every student of Australian government knows, key fundamental aspects of our democratic government, such as the responsibility of ministers to Parliament, as well as the role of the prime minister and cabinet, are not formally prescribed in the constitution but depend on time-honoured convention.

Appointing ministers without informing the Parliament to which they are publicly accountable is contrary to the principle of ministerial responsibility and therefore unconstitutional.

The prime minister should have been informed that his actions were in breach of the constitution, broadly understood.

In their defence, officials argued that publication of appointments was usually the responsibility of the prime minister's office. But this excuse, while valid to begin with, wears thin once the initial appointments remained unannounced. As Justice Bell makes clear, no-one in PM&C (or the Governor-General's office which relies on advice from PM&C) appears to have questioned the continuing secrecy of the multiple appointments.

It was only the subsequent opinion of the Solicitor-General, backed up by prominent constitutional lawyers, that alerted them to the importance of ministerial responsibility. That the public servants charged with warning the prime minister against unconstitutional action failed to notice this obvious risk amounts to a major failure of policy advice. How can they be expected to speak truth to power if they can't recognise truth in the first place?

The blindness of senior public servants to the importance of transparency may shock but should not surprise. PM&C has a long history of resisting public disclosure of its activities, as recently illustrated by its intransigence over documents from the national cabinet, even after an adverse finding from the AAT (administrative appeals tribunal).

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The failure is also attributable to a narrow interpretation of what procedural impropriety public servants should draw to the attention of ministers. The dominant view is that public servants should contemplate adverse comment only if a proposed action is clearly illegal.

Indeed, as the robodebt and sports rorts scandals have demonstrated, public servants will sometimes consciously avoid seeking evidence of illegality.

In justifying his approach to Justice Bell, Gaetjens rejected any suggestion that the public service should have "pushed back" against the decisions. In his view, provided a proposed course is legal and the government has decided on it, it is wrong for the public service "to overplay the risks" of the decision in order to prevent the decision from being implemented.

The argument poses a spurious dichotomy between saying nothing and exaggerating risks in order to prevent a decision. In practice, there are plenty of ways of "pushing back" by formally warning of risks without outright resistance. There also many risks of impropriety, including unconstitutional action, that do not involve actual illegality.

In this context, recent remarks by the new secretary of PM&C, Glyn Davis, are most welcome. He has reasserted the importance of free and frank advice and drawn attention to the new NACC (national anti-corruption commission) as demanding high standards of record-keeping and potential transparency. The NACC, we should remember, deliberately defines corruption more broadly than simple illegality. Public servants will no longer be able to claim (or believe) that if a proposed action is legal it cannot be corrupt.