In its report, the CMC had a lengthy section on the statutory basis for the investigation. However, it did not cite any existing precedents for such an oversight body to accept a complaint on an alleged breach of a convention for investigation. As described in Chapter 2, sanctions against breaches are usually moral or political. The CMC report acknowledged this in relation to allegations about the Premier and dismissed any possibility of criminal liability on the part of the Premier by citing the lack of legal standing of the caretaker conventions and concluded ‘an alleged breach of the conventions by a member of Parliament … is not a matter within the investigative or official misconduct jurisdiction of the CMC’ (CMC 2004, p. 3).
The CMC, however, believed that a ‘different standard applies to public servants’ (CMC 2004, p. 4) and a public servant who breached the caretaker conventions could come within section 14 [b][1] of the Crime and Misconduct Act 2001 (Qld) by acting ‘in a way that is not honest or is not impartial’. For that breach to amount to official misconduct, it must constitute a criminal offence or a disciplinary breach so serious as to warrant the person’s dismissal (CMC 2004, p. 4). The CMC also identified the possibility of a breach of the Public Service Act 1996 (Qld) which contained a statement of principles for the conduct of public servants including ‘providing sound and impartial advice to the Government’ (CMC 2004, p. 4). A contravention of that Act or departmental Codes of Conduct could be grounds for disciplinary action against an officer. Because the Director-General of the Department of the Premier and Cabinet circulated the caretaker conventions to all departments, a breach of these instructions could amount to official misconduct or grounds for disciplinary action under the Public Service Act 1996 (Qld).
On this formulation, the CMC decided that the non-justiciability of conventions was over-ridden by the provisions for impartiality vested in other Acts governing the conduct of the public service with the possibility of such a breach leading to official misconduct. Its actions can be seen as an example of encroaching legalism, where lawyers seek to make judgements about political norms.
The concerns of the Opposition were two-fold: that the actions of the Department of Main Roads officers were an implementation of a policy decision taken during the caretaker period, and that the content of the letter to affected residents was not impartial (CMC 2004, p. 7). The first allegation was made against the Premier for implementing a policy initiative against the caretaker conventions. As the CMC had decided the conventions were not legally enforceable against a Member of Parliament, the investigation focused on whether departmental officers had implemented a policy initiative during the caretaker period.
Departmental officers interviewed were quite clear the announcement was a new policy promise released during an election campaign and would not have bound an in-coming government (CMC 2004, p. 25). The CMC concluded the allegation could not be substantiated and there was insufficient evidence to support the view that departmental officers were implementing a new policy (CMC 2004, p. 26).
On the second allegation of lack of impartiality, the CMC found that the letter to residents had breached the conventions by displaying partisanship by omitting to mention that the road announcement was contingent on the Beattie Government being re-elected. The CMC then determined whether the breach of the caretaker conventions provided a basis for the recommendation of disciplinary action against any officer (CMC 2004, p. 26). It concluded that the evidence would not support a finding of misconduct against anyone because no officer ‘deliberately sought to flout the conventions or to otherwise act with the intention of advancing a political agenda’ (CMC 2004, p. 27).
The CMC’s test for the breach was whether officers had colluded to achieve a political purpose or that any officer had sought to improperly influence another concerning what the letter should contain (CMC 2004, p. 27). The CMC quite correctly looked beyond the wording of the letter for intent and concluded that the inappropriate wording arose from two causes:
an apparently inadequate understanding by those who drafted the letter of the scope and rationale of the conventions; and
the pressing timeframe that resulted in more senior officers having insufficient time to properly review the letter and give the relevant issues the consideration that the circumstances requires. (CMC 2004, p. 28)
The CMC concluded that for the letter not to breach caretaker conventions it should have included a qualification that the new route was contingent on the completion of a number of processes and the result of the election (CMC 2004, p. 28).
The interviews with Department of Main Roads officers highlight the challenges of juggling multiple stakeholders. The Director-General of the department received a phone call at 7.30 pm to inform him the Premier would be making an announcement the next day on the proposed route. The department was requested to inform the affected residents of the impact of the announcement on their properties. The focus of the department’s work was then on informing the residents personally before they heard the announcement through the media. Officers were quite clear that ‘out of courtesy, morally and ethically’, it was the department’s role to tell the residents of the announcement (CMC 2004, p. 18). The shortened timeframe meant that the normal approval and checking of the letter did not take place.
From the department’s point of view, officers were fulfilling their responsibility to be both responsive to the government as well as sensitive to stakeholder impact. The extremely truncated timeframe meant the letter was considered ‘close enough’ (CMC 2004, p. 20) as the department focused on the challenge of getting officers on the ground before the announcement. When interviewed, all departmental officers said they were aware of the provisions of the caretaker conventions and none of them thought, at the time, that they were not being politically impartial. In retrospect it was conceded that, although the department had been concerned to offer a ‘compassionate response to those 14 households’ (CMC 2004, p. 18), more care should have been taken with the drafting of the letter.
The Crime and Misconduct Commission made four recommendations about additional guidance and training on the operation of caretaker conventions. The recommendations were:
that all public sector agencies have an adequate training mechanism to ensure that staff are fully aware of the caretaker conventions and how they operate during election periods;
the CEOs of public sector agencies identify which staff should receive such training, having regard to their duties and how the conventions apply to such duties;
the CEOs of public sector agencies ensure that, as soon as the caretaker periods begin, all relevant internal officers receive advice summarising the conventions; and
that additional ways be found to reinforce the requirement on all public servants to avoid any appearance of political partiality during caretaker periods.
The CMC’s view was that further explanatory material to give guidance to departmental officers was required to prevent their actions—even if well-intentioned—from becoming politically controversial (CMC 2004, p. 32).
Yet, evidence from all of the officers involved showed they understood and were aware of the provisions of the caretaker conventions. The reality of decision-making in such a truncated and pressured timeframe did not allow for the normal consideration and approval processes that would be undertaken for such a sensitive letter. The focus of the Department of Main Roads was on informing the affected residents in a courteous and sensitive manner before the inevitable media onslaught.
The implications of the CMC report for the Queensland public service are many. The report clearly says that the conventions are not legally binding on politicians but that a different standard applies to public servants because of the principle of impartiality contained in the Public Service Act 1996 (Qld). This is the first time that an assessment has been made that public sector employees can be held to account for a breach of caretaker conventions in a way that politicians cannot, even if officers are responding to a request from a minister.
The realisation that public servants can bear real consequences for a breach of caretaker conventions has implications for responsiveness during an election campaign. The double standard of accountability means that, in contrast to public servants, ministers have very little to lose in pushing the boundaries. CEOs need to be more alert and responsible for moderating the expectations of ministers and protecting staff from any potential breaches through being overly responsive to the incumbent government.
There is increased responsibility for departmental CEOs to: (a) ensure that all staff are properly trained in the operation of caretaker conventions; and (b) develop an increased understanding of the sanctions for a breach of impartiality. The need for documented approval processes for checking and clearing work becomes important. The CMC oversight of this area also leads to increased pressure and stress on the bureaucracy during the election period and an increased need to exercise high level judgement and caution.