1 November 2017Hot off the Press
The events of last Thursday made the Parliamentary sitting week seem a year long, with late night developments and round the clock coverage leaving a Minister embattled and an Opposition calling for blood. Senator Michaelia Cash, Minister for Employment, is still facing down calls to resign after giving misleading evidence to a Senate estimates hearing concerning a media tip-off about the recent raid on the offices of the Australian Workers Union (AWU) that originated from her office.
The only resignation that the Government seems intent to suffer is that of the staffer involved. All in all, it’s a good opportunity to reflect on the broad circumstances in which a Minister should resign — and more specifically if it is right for the Minister to step down.
For clarity’s sake, the focus here is not on the AWU raids themselves or their justification. The origins of the Registered Organisations Commission and its relationship with the Minister for Employment are a peripheral matter to this discussion, which namely centers around one question only: should the Minister resign over inadvertently misleading the Parliament?
The foundation of our concept of Westminster government is accountability — that those who wield power do so responsibly, with integrity, and under the scrutiny and judgment of the people. As members of the executive, Ministers are accordingly held to the highest professional and moral standards, especially in the face of a representative Parliament (which is why misleading the Parliament is considered a grave sin). The conduct of their portfolios similarly rests on their shoulders (the concept of ministerial responsibility).
However, in modern times this doesn’t mean that every mess-up under a Minister’s stewardship results in their resignation. There is no written or absolutist requirement or convention that makes a Minister responsible for everything that goes wrong in their portfolio on pain of resignation (although the pressure that this may put on the image of a government may lead to a Prime Minister asking for the Minister to go). Usually, resignation as a punishment requires a very compelling reason, which typically finds the form in personal responsibility of the minister for a wrongdoing.
Bearing all this in mind, once there are objective facts to parse, there is a simple test one can form to see whether or not a Minister should (or will) go. It goes like this:
Test 1: Has the Minister personally committed a wrong?
This test asks whether the Minister has personally contravened a law, or offended morality in some significant way. (And there are a long list of ways in which that can happen, from improper use of campaign funds, to conflicts of interest, to misleading the Parliament or the Prime Minister!)
Test 2: Did the Minister do it intentionally, or should they have reasonably known better?
This test asks if the Minister intentionally did the wrong, “with malice aforethought”, or was it something within their reasonable power to prevent happening?
If the answer to these two tests are “yes”, a letter of resignation should most likely find its way to the Prime Minister’s desk by Friday.
For the sake of example, let’s throw back to a few historical examples to see how it’s worked out!
Speculating on Michaelia Cash's fate needs a quick summation of the facts so far.
The Australian Federal Police conducted raids on the offices of the AWU on 24 October 2017. The media was waiting at the scene to report on the raids, leading to accusations the following day that the media had been tipped off by Minister Cash's office.
In front of a Senate estimates hearing, under direct questioning, Minister Cash denied that she or anyone in her office had leaked anything to the media concerning the raids five times (allegedly after assurances from her staff that this was the case). After the publishing of a Buzzfeed article alleging that journalists had, in fact, received a tip off about the raids on the AWU, Minister Cash informed the Senate that one of her staffers had leaked the information of the raids to the media — which means she had mislead the Senate in her previous refuations.
The wrong in question is in Minister Cash misleading the Senate in stating that neither she nor anyone on her staff leaked to the media. Accordingly, the Minister personally committed the wrong. The test passes.
On the assumption that the facts as the Minister has presented them are correct, Minister Cash did not intentionally commit the wrong. Her allegation is that the member on her staff who leaked the information to the media misled her, and that she informed the Senate once she found out that they had. For the moment, this test fails. It hinges on whether Minister Cash could have reasonably avoided the leak — this would only have been the case if she did not check with her staff before making the assertions to the Senate, or if she knew before making the assertions that they were false.
Minister Cash will not be resigning her portfolio anytime soon. On the assumption that she has been telling the truth, and in the absence of more compelling evidence, there are no adequate grounds to call for her dismissal. The situation is also not of sufficient public gravity or embarrassment to force a Prime Minister's hand — although, in the context of Friday's citizenship case results, that may change.