For quite a while in the late 20th century, it was an accepted practice for a Queensland judge to appoint as an associate his son or daughter. The position of judge's associate is a public sector appointment and often provides a pathway to a successful career in the law. Many judges considered it was their right to appoint a family member as an associate, or at least that it was a legitimate perk of office.
The practice was challenged in the 1990s by the state's then attorney-general, Matt Foley, who was given legal advice that he was personally responsible for such appointments, as it was he who would sign an Executive Council minute recommending each appointment. He disapproved of the practice and raised the problem with the chief justice and the chief judge of the District Court. Following discussions, a protocol was drawn up to require that associate vacancies be advertised, and appointments made on merit. However, Foley became aware that the new system was not entirely effective and needed to be strengthened. He consulted further, including with some judges who insisted their judicial independence was at stake. Foley suggested they could protect that independence by themselves paying the salary and expenses of their associate, instead of relying on the public purse. That did not appeal. A second protocol was devised that was apparently more effective, though apparently not completely so.
Some years earlier, in his book Judicial Ethics in Australia, then Supreme Court justice J. B. Thomas made no mention of this issue, but included as an appendix the ''seven Canons of Judicial Conduct'' published by the American Bar Association. Canon three, under the subheading ''Administrative responsibilities'', says:
A judge should not make unnecessary appointments. He should exercise his power of appointment on the basis of merit, avoiding nepotism and favouritism …
One would have thought that should go almost without saying. But in Queensland it needed to be said.
The principle applies equally to all appointed public officers. Queensland's Public Service Act declares:
The merit principle: The selection, under this act, of an eligible person for an appointment or secondment as a public service employee must be based on merit alone.
The act defines public service employees to include the chief executives of government departments, who are appointed by the governor in council. So their appointments, too, ''must be based on merit alone''. Even in the absence of this legislative direction, elected public officers (i.e. ministers) making such appointments would need to apply the same rule to meet their obligations to act in (indeed, to advance) the public interest.
Yet it is clear the merit principle is not applied universally. Sometimes, it is suspended or amended to allow nepotism or patronage to prevail.
Queensland Premier Campbell Newman has expressed the view that it is inappropriate for a minister to employ on their personal staff a member of their own family, but it is possible a minister could employ family members of other ministers. Prime Minister Tony Abbott has a slightly stricter rule: ministers' close relatives and partners must not be employed in the offices of other ministers ''without the prime minister's express approval''. And a ''close relative or partner of a minister is not to be appointed to any position in an agency in the minister's own portfolio if the appointment is subject to the agreement of the minister or cabinet''.
In Britain, after a seven-month-long inquiry, the committee on standards in public life, known as the Nolan committee after its first chairman, recommended several years ago a complete ban on MPs employing relatives on their staff. However, the Independent Parliamentary Standards Authority decided that each MP could employ one ''connected party'' at any one time. Almost a third of British MPs do so.
At the other end of the scale, the ACT completely bans its legislators employing family on their staff.
These various rules are all directed to the problem of the public perception of nepotism. Other than those that prevent the employment of family, they are notable for not applying the appropriate principles that should apply to appointments to public office: namely, the merit principle and the requirement that ministers making appointments should act in (and to advance) the public interest. Insofar as these rules recognise the public interest (as distinct from political interest), it is in a negative sense. That is, they seem to apply the principle that advancing the interests of one's family is acceptable so long as a particular appointment is not contrary to the public interest. But that is not the test that should be applied. It is not a matter of avoiding harming the public interest; ministers have a duty to advance the public interest.
These rules that different jurisdictions have developed all appear to be directed to the problem of the narrowest form of nepotism, in that they specify the extent to which various family members and partners may be employed. They ignore the broader nepotism or patronage problem: the placing in public positions and/or advancement of political and other associates, mates and cronies, and the jobs-for-the-boys (and girls) syndrome.
That last category is used to describe the appointment of former politicians, political allies and political activists to public offices that may or may not require expertise. Last December, for example, in a Courier-Mail article headed ''Tradition of jobs for mates continues in political appointments'', Dennis Atkins mentioned four such: former Australian Democrats leader Natasha Stott-Despoja made ambassador for women; Tim Wilson, a fellow at the conservative Institute of Public Affairs, made freedom commissioner at the Human Rights Commission; former treasurer Peter Costello made acting chairman of the Future Fund; and, in South Australia, former Gillard minister Greg Combet appointed as a lobbyist on car manufacturing. These appointments were either to newly created positions or positions that were vacant.
Even more concerning than the standard ''jobs for the boys'' are appointments that newly elected prime ministers or premiers make to chief executive positions to replace incumbents whom they have dismissed, sidelined or persuaded to resign to make way for people more acceptable to the prime minister or premier. There is little pretence on most occasions that ''acceptability'' involves a judgment that the new appointee is more meritorious than the person they are replacing. Rather, it is about appointing people the prime minister or premier considers will be loyal, and/or sympathetic with the policies of the new government, and/or can be trusted to harness public resources to achieve those ends. They will often be people who have previously worked with or for the prime minister or premier or their colleagues or are associated politically or in some other way with them.
Such appointments have become relatively common since Australia's public services came to be managed by men and women appointed as chief executives for relatively short (five years or less) fixed terms, rather than by ''permanent'' secretaries. Notoriously, when Labor's Wayne Goss became Queensland premier in 1989, a significant number of senior officers were sent to what was described as the ''gulag'', to work on ''special projects''. When John Howard became prime minister, he promptly dismissed six department heads. Tony Abbott dismissed three, with another allowed to hold his spot for a year. Campbell Newman, on becoming Premier, sacked seven chief executives, and others followed later. There are valid concerns that actions such as these have politicised the public service, and resulted in a diminished willingness to provide frank and fearless advice. Some are concerned about a fundamental shift towards the American system, where all top appointments are political (though subject to Senate approval).
However, there has been some academic sympathy expressed for patronage in the appointment of senior public servants. Recently, in an article described as a ''thematic review'' of the relevant academic literature, Professor Matthew Flinders and Felicity Matthews wrote:
… patronage, when viewed as a political resource, can be considered as a risk-reduction mechanism through which high-trust relationships and control capacity can be manufactured and sustained.
The authors drew a distinction between bad and good patronage, between patronage and public appointments. They said:
Patronage appointments are those that can be made by elected politicians without any encumbrance in terms of due process or transparency. In reality, even patronage powers exist within a certain bounded rationality which constrains choices, such as political calculations or informal brokering. However, despite the existence of informal limits on patronage appointments, the underlying variable is one of centralised power in the hands of the patron. Public appointments, on the other hand, are made by elected politicians but against certain explicit standards and frameworks, which are independently verified, to ensure that the public interest is not sacrificed for political gain. Thus, although the capacity of politicians to make the final appointment remains, certain safeguards are in place to ensure than appointments are made on merit and following a transparent, competitive recruitment process.
Their reference here to the public appointment process is essentially that which has been adopted in Britain since 1995, in the wake of scandals about the abuse of patronage by Conservative governments in the 1980s and 1990s. For almost 20 years, the Office of the Commissioner for Public Appointments had regulated, monitored and reported on ministerial appointments to the boards of more than 1000 public bodies and statutory offices. The system established by the office requires departments to establish panels to assess candidates and recommend which of them satisfy the selection criteria that ministers have helped to determine. Ultimately, ministers make appointments, choosing from among those who have been recommended. In some special cases, parliamentary committees can hold pre- or post-appointment hearings into appointments.
A different system applies to the appointment of permanent secretaries - the equivalent of directors-general in states or secretaries in the Commonwealth. The Civil Service Commission runs the selection process, though the relevant secretary of state (minister) is consulted throughout about such matters as job description and the composition of the selection panel, and also meets all of the short-listed candidates to provide feedback to the panel. The panel recommends one candidate for appointment, but the final decision as to whether the recommended person is appointed rests with the prime minister.
As Flinders and Matthews say:
Overall, the UK provides an important case of a polity in which the party patronage capacity of ministers has become heavily circumscribed in recent years. A proactive regulatory architecture has been put in place that, when combined with an extremely aggressive and sensationalist print media, have made the opportunity costs of [patronage as corruption] appointments a very high-risk, high-cost strategy for incumbent politicians.
They argue that the pendulum has swung too far, and that politicians should have:
… the capacity to place competent state managers in key positions in order to develop the high-trust, low-cost relationships that are crucial to the effective governing. This also rejects the assumption of the incompatibility between party patronage and traditional democratic representation, because when exercised in accordance with the principles of merit, openness and transparency, party patronage is eminently compatible with the traditions of democratic responsibility by creating the space for an active dialogue between the appointers and the appointed (which, in turn, is crucial to the facilitation of effective high-trust, low-cost relationships); and in constructing overt lines of accountability across the semi-state back to political actors, who will be publicly accountable for the actions of those they appointed.
It is an interesting academic debate about whether Britain has gone too far down the road of removing the patronage powers of its ministers. Aside from the strictures in such legislation as Queensland's Public Service Act, which require that appointments in the public service be based on merit alone, the only legislation comparable to what is happening in Britain at the Commonwealth level are the procedures in the Australian Broadcasting Corporation Act and the Special Broadcasting Service Act that set out the merit-based appointment process now needed for ABC and SBS board members.
I have quoted Flinders and Matthews at some length to emphasise the point that what has been happening in Australia over the past few decades is totally different from the public appointment process in Britain. Here, some premiers and prime ministers have indulged in patronage, apparently paying little regard to the principles of openness and transparency that are required in Britain. It may be that some, most or even all of their appointees might have won a merit-based competition for the positions to which they were appointed. That is not the issue. The process that was adopted was flawed. It would appear to have been contrary to the public interest and inconsistent with the public trust that those prime ministers and premiers were bound by.
But wait. Before reaching that conclusion, we must consider a caveat expressed by Paul Finn in an article in 1992, in which he discussed the compromises we must accept in making our system of government workable. ''It is not enough,'' he said, ''to rely on ritualistic formulae - 'the public interest', 'the public trust', 'the Westminster system' - as if these, talisman- like, preordained the solutions to our problems.'' And he said:
What, above all, is necessary, in my view, is to understand the very fabric of the systems of public government which we have and to which we aspire. And this necessitates an informed appreciation of the legal, constitutional and democratic norms which express the order we have created. These are by no means static … But they are nonetheless fundamental to the roles and character we attribute to our officials; to the expectations we properly can have of them; to the strictures we can impose on them.
The fact is that the roles and relationships of and between ministers and chief executives of the public services in Australia have changed considerably, perhaps fundamentally, in the past two or three decades. And this may well mean there are some circumstances in which it may be perfectly acceptable for a premier or prime minister to make a patronage appointment because trust and/or commitment and/or loyalty etc may be as important (or more so) as merit in delivering the best performance by government - that is, by elected and appointed officials jointly. We may need to recognise there is such a thing as ''good patronage''. We may need to change the rules and/or make them more flexible.
If that is so, it is no longer the case that there should be ''reform of public sector appointments so that merit is the overriding consideration rather than nepotism and cronyism''. That quotation is from the Liberal National Party's submission to the Bligh government's discussion paper on integrity and accountability in Queensland in 2009, and that policy is already required by the Public Service Act. Rather, we might need to consider a question that the same submission also posed: ''Should government/political appointments be subject to parliamentary probity or scrutiny by an independent body?''
That is already the case for various integrity officers in Queensland, where the relevant parliamentary committee is involved in the appointment process.
But it is not the case with the appointment of directors-general and other chief executives. If we are to permit and favourably sanction the exercise of ''good patronage'', do we need to adjust the system to provide more openness and transparency, in ways such as those mentioned in the LNP submission? I think it time these issues were examined and proper safeguards adopted.
Dr David Solomon is Queensland's Integrity Commissioner. This is an edited extract from an article he wrote earlier this year.