Caretaker review needed after Coalition's election day boat stunt

The tactic failed. Morrison lost the election. The incident was however a concern for good governance.

For a start it abandoned the policy, established by Morrison, of not talking about operational (or "on-water") matters. That is maybe the one good aspect. There has been excessive secrecy, under both Coalition and Labor governments, around Australia's asylum seeker and refugee operations. Sadly, more recent statements have reverted to the past practice.

More importantly, the incident set damaging precedents for Australia's caretaker conventions. The basic principles are that during an election campaign the public service goes into maintenance mode, eschews new policy initiatives, stays out of politics, and avoids actions that could bind a future government.

The election day incident became the subject of a very peculiar review.

The new government commissioned the review from the Home Affairs department secretary, Mike Pezzullo. That is, to review his own actions and those of the people in the department he led. It was a clear conflict of interest.

Presumably this was deliberate. The government knew exactly what it would get: a report that showed the previous government in a negative light (always pleasing for a new government) and completely exonerated the public servants involved.

The report provides a good chronology of the events of May 21. In summary, around noon the then-Home Affairs Minister's office, on behalf of the Prime Minister, asked the taskforce commander to publish a statement about the interception of an asylum seeker boat "within 15 minutes".

The department asked the minister's office whether it was to be a ministerial statement (usual practice) or from the taskforce (not usual). The reply was the statement should come from the taskforce commander, cleared by the minister's office. A draft was prepared, amended by the minister's office, and uploaded to the department's news and media site at 1pm.

The minister's office also asked the department to tweet the statement and email it to selected journalists. The department refused. Pezzullo concludes that this preserved the apolitical character of the public service.

It was good the department did not compound the politics by briefing journalists, but it had other options: not issuing a media release, having the minister issue it, or issuing it with a caveat. Any would have been less obviously political than what happened.

Pezzullo argues "there was no evidence to suggest that officials were aware of the Liberal Party planning to tweet and SMS the message". What did they think the ministers intended to do with the press release - set it to music and perform at the Opera House? Read it aloud at the children's library story time? Any sensible public servant would have inferred that this media release would become political. Under the caretaker conventions and the Public Service Act values it should have been avoided.

The Pezzullo reasoning is that the direction from the minister was lawful, and therefore the department had to comply. That is questionable. There are plenty of sections in the caretaker conventions where departments are advised not to do things a minister requests - even if requests are legal. For example, departments should not give policy briefings, or allow departmental premises to be used as logistical support for political functions. A minister could legally ask, but a department could legally say no.

The report suggests the Prime Minister's Department consider revising the caretaker conventions to say they "do not detract from ministerial authority, and officials are obliged at all times to follow lawful directions". That should not be taken up. What constitutes a lawful direction is problematic. Would it ever be lawful for a minister to ask officials to do something potentially in conflict with ethical use of public resources under the PGPA Act, or the values in the Public Service Act? Judgement will always be required.

While we are at it, why did the Home Affairs Department not seek advice in this case from the Prime Minister's Department, the guardians of the caretaker conventions? Departments are not obliged to ask for help - but can. In cases of doubt, consultation with the Department of the Prime Minister and Cabinet is good practice.

Under the caretaker conventions departments can add material to their websites if "consistent with usual practice". The Pezzullo report makes it clear that the media release in this case was not something the department would usually post. There had however been several instances where the responsible minister chose to issue similar media releases.

It would have been consistent with usual practice for the department to have insisted the media release in this case come from the minister. Naturally the minister did not want that: a ministerial statement on election day would be discounted as shallow politicking. But under the caretaker conventions, there was not a strong rationale for the department to put out the release - other than being directed to.

At the very least the department could have insisted that the release include caveats that it had been prepared at the request of the minister, and that normal practice would be for the minister to make this kind of announcement.

The new government will not be attracted to further investigations. The report predictably attracted negative headlines for key figures in the Coalition, so did its intended job. From a politician's perspective it is history. For public servants however there would be value in an independent, impartial review to draw out the lessons for future caretaker periods.