Public servants have an obligation to operate within the ‘framework of ministerial responsibility’
One of the ethics values is that public servants, departments, other public service agencies and public sector entities, ‘accept and value their duty to operate within the framework of Ministerial responsibility to government, the Parliament and the community.’ (Public Sector Ethics Act 1994, s 8(1)(c)).
What is ministerial responsibility?
Ministerial responsibility is the individual responsibility of ministers to Parliament for the administration of their departments, and the collective responsibility of Cabinet to Parliament (and the public) for the whole conduct of government administration. See: FAI Insurances Ltd v Winneke (1982) 151 CLR 342 at 364. ‘Responsible government’ is the ‘system of government’ in Australia and it is achieved by making the actions of government accountable to Parliament and subject to parliamentary scrutiny.
This responsibility is reflected in the Constitution of Queensland 2001 (s 42, 44) which acknowledges that Cabinet is collectively responsible to Parliament, and authorises the Governor in Council to assign the public business of the State to each minister. Consistent with this, the Queensland Cabinet Handbook provides in part:
‘1.2 The Cabinet and collective responsibility
The Constitution of Queensland 2001 states there must be a Cabinet consisting of the Premier and a number of Ministers. Cabinet is the principal decision-making body of the government and currently comprises all Ministers. Cabinet’s decisions are given formal effect through Acts of the Parliament, actions of the Executive Council or the executive powers held by Ministers for the administration of their portfolios.
Cabinet is responsible for the performance of the government. Each Minister acts jointly with and on behalf of Cabinet colleagues in their capacity as Ministers. Not only does this ensure collective responsibility, but it also enhances collective adherence to all decisions made in Cabinet. …
Cabinet procedures in this Handbook are designed to support the convention of collective responsibility. …’
What does the ‘framework of ministerial responsibility’ mean for public servants in the performance of their work?
Public servants must give effect to government policies, give impartial advice and must not deliberately withhold relevant information from their minister. In the High Court decision of Comcare v Banerji (2019) 287 IR 302, Gordon J commented on the duty of public servants:
‘150 Within this system of responsible government, public servants work for Ministers, who are in turn responsible to Parliament. That work includes, for example, advising upon and implementing ministerial decisions – regardless of which party or parties have formed government. Ministerial responsibility to Parliament necessarily entails “loyalty of civil servants to Ministers, and by the same token their anonymity and neutrality”.’
Public servants have a duty to assist the departmental minister and to give effect to government policies and priorities. This obligation is enshrined in legislation and also reflects Westminster conventions.
The Public Service Act 2008 (PS Act) provides that a public service employee’s work performance and personal conduct must be directed towards ‘giving effect to Government policies and priorities’ (s 26(1)(c)) and ‘providing sound and impartial advice to the Government’ (s 26(1)(e)).
The PS Act also reflects this responsibility in s 100. Directors-General are subject to the directions of their departmental minister in managing the department, subject to a couple of exceptions, including where the Director-General is making a decision about a particular individual.
This includes implementing government decisions and giving departmental ministers honest and impartial advice. Public servants are required to give advice to their managers, Director-General and minister which is ‘objective, independent, apolitical and impartial’. See: Public Sector Ethics Act 1994, ss 6, 8.
Given the fundamental role of a minister in administering their department, subject to the possible operation of any specific confidentiality provision, there can be no information concerning the operations of the department and the conduct of its staff that must be kept confidential from the minister. This is reflected in s 38 of the Information Privacy Act 2009, which provides that ‘[a]n agency does not contravene the requirement under this Act that it comply with the IPPs or the NPPs only because it gives personal information to a Minister to inform the Minister about matters relevant to the Minister’s responsibilities in relation to the agency.’
If you have any queries arising from this article, please contact Karen Watson, Deputy Crown Solicitor (Public Law) on 3031 5810 or at email@example.com or Steve Marton, Chief Advisor for Crown Solicitor on 3031 5607 or at firstname.lastname@example.org.
The information in this publication is provided for general purposes only. It is not to be relied on as a substitute for legal advice. Crown Law and the Department of Justice and Attorney-General accept no liability for losses caused by reliance on the material in this publication. Formal legal advice should be obtained for particular matters.
Published: 17 August 2021
Author: Karen Watson and Steve Marton