The current controversies surrounding the relationship between the federal government and various corporations, commissions and authorities, like the Australian Broadcasting Corporation, the Australian Human Rights Commission and the Clean Energy Finance Corporation contain a common thread.
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A long-standing tension exists within government between wanting structures that allow executive government to be in complete and direct control of all that is done in the name of the government and alternatively wanting certain agencies and bodies to have a certain amount of independence to conduct their own operations. This tension is a bit like the separation of powers that structures the relationship between the parliament, the government and the judiciary, but it exists within the government itself in a more subtle way.
The tension exists because some aspects of government are done better if the central government has direct, departmental control while others are perceived to require some separation from government. Both governments and the community appreciate the general principles on which this distinction is based. Some things, like public broadcasting and independent economic advice, depend on being at arm's length from the government in order to be accorded respect for their work in the wider community. That respect is necessary for public trust in good government.
Many years ago I cut my academic teeth on the tension between the federal government and the Tariff Board which occurred in the late 1960s and early '70s as Australia moved towards accepting a culture of free trade rather than protection. In that transformation the independence of the Tariff Board was crucial but the whole experience was still very painful for key figures like Alf Rattigan, the chairman, because he had to fight the objections of ministers like John McEwen, the Country Party leader.
Generally governments like to have it both ways. They don't usually want to abolish the body in question but do want to rein it in. This is the currently case with the ABC and the HRC, although not so with the CEFC, which the government has twice tried unsuccessfully to abolish. The government wants control of these bodies just as much as they want control of the Senate.
So how do governments try to rein them in? The starting point is to exercise the powers given to government and its responsible minister under the legislation setting up the body. If the government wants to go beyond these powers then it has to change the legislation.
Recently we have had considerable debate about the appropriate role of all three bodies in question. This has led to public lawyers and public administration experts going over the relevant legislation with a fine tooth comb. This rarely answers the question of whether the government or the independent body is in the right because the devil is in the detail. There is always room for conflicting interpretation of what the legislation actually means.
The role of the body in question is usually determined in practice not by the letter of the law but by those who occupy board and executive management positions within it. That is why the well-known commissioners and CEOs, like Gillian Triggs (HRC) and Mark Scott (ABC), are often in the sights of the government. So the search for the "right balance" at any one time is futile. There is no absolutely right balance but just a temporary balance that emerges from a contest of ideas and, unfortunately, brute force.
In the long run governments can exercise a good deal of control over such bodies but they are never fully in control. They have a number of tools at their disposal, including legislation, finance and appointments. But these are weapons which often take years to put into place and they must be used subtly if they are to be effective.
Commissioners like Triggs and CEOs like Scott as well as government-appointed board members have contracts which limit the power of government to make personnel changes. Legislative changes depend on a government controlling the parliamentary numbers and the Abbott government is still struggling to find the numbers in the Senate. Financial power can be used to strangle a body like the CEFC but even that must be exercised in public and can create unwanted controversy.
That is why governments engage in subterfuge and bluster. Subterfuge can be used to change the character of an organisation by trying to find an attractive new job for the incumbent as appears to have have been tried with Triggs.
Bluster is more important as a major government weapon. All governments possess great resources to wage war through the media. Ministers, especially the Prime Minister, have a bully pulpit to inflict great reputational damage on so-called recalcitrant individuals. That is why the media is so important in protecting those who try to stand up against government. Otherwise governments can slowly turn the screw against these individuals and their organisations.
But they in turn can fight back using various powers at their disposal. In the short term this may enable them to weather the storm. Sometimes they have a sympathetic minister who is fighting their cause against the Cabinet. Most have sympathetic allies and friendship groups. The wind power industry has been fighting hard in defence of the CEFC, for instance.
Ultimately though it is wider public sentiment which will prevail, though it may take an election or two to activate it. In the meantime individuals and organisations in the gun have to either work out a revised modus operandi with the government or have a very thick skin to ward off the inevitable government brow-beating. Some won't survive.
John Warhurst is an emeritus professor of political science at the Australian National University.
