The protocols between a Cabinet Minister and a 'non-Cabinet' or 'delegate' Minister relate to the exercise and/or conduct of the powers of government. As such the protocols are an important instrument in the governance of this State. They determine, not only the administrative arrangements of the two Ministers concerned, but also, the limit of authority of the non-Cabinet Minister as delegate for the Cabinet Minister. Without knowledge of the terms of the protocol, accountability and responsibility for Ministerial decision making is blurred¹.

THE AUDIT RESPONSIBILITY

Ministers of the Crown exercise the Executive authority of government regarding, inter alia, the expenditure of public funds. An opinion on the adequacy of the 'controls' associated with such matters is an audit reporting responsibility including matters of 'propriety' and 'lawfulness' associated with such expenditure².

THE NEW ADMINISTRATIVE ARRANGEMENTS

One aspect of the reorganisation of Executive Government initiated in or about October 1997 was an increase in the overall size of the Ministry, and the identification of some of the newly appointed Ministers as non-Cabinet Ministers. This required amendments to the Constitution Act 1934, and led to amendments to the Administrative Arrangements Act1994.

In 1997, a new section 9A the Administrative Arrangements Act 1994 was inserted:

This new section supplements the existing provision for delegations by Ministers of specific statutory functions or powers in section 9:

The effect of a proclamation under the new section is to give rise to a situation in which two Ministers have common or co-extensive functions and powers. This gives rise to issues as to Ministerial roles, responsibilities and accountabilities, including to the Parliament.

Unlike a notice under section 9, which would by its nature provide particulars of the delegation (by referring to the statutory function or power being delegated), a proclamation under section 9A provides no particulars of the practical (as opposed to the legal) extent of the delegation being made, ie there may be limits on the delegated authority of the non-Cabinet Minister.

In communicating with new Ministers in December 1997, the Premier addressed in general terms the respective roles and responsibilities of the Cabinet and the delegate Ministers. The Premier indicated that a formal protocol needed to be developed as between the Cabinet Ministers and their respective delegates, to address, amongst other things, operational arrangements to support Ministersā responsibilities. An outline of the suggested content of the protocol was provided by the Premier. On 18 December 1997, a proclamation appointing five delegate Ministers was made. On 24 March 1998, the Premier asked Ministers to provide the agreed protocols for noting by Cabinet.

AUDIT EXAMINATION AND COMMENT

As part of the audit examination of certain issues arising in connection with the Administrative and Information Services portfolio, on 10 June 1998, I wrote to the Chief Executive of the Department for Administrative and Information Services seeking particulars of the roles and responsibilities of the senior executives within the new organisational structure, including their respective responsibility relationships with the Minister for Government Enterprises/Minister Assisting the Premier for Information Economy on the one hand, and the Minister for Administrative Services/Minister for Information Services on the other. Those particulars were provided on 8 July 1998.

On 12 June 1998, I wrote to the two Ministers mentioned, seeking particulars of any agreed protocols or like arrangements, as proposed by the Premier. A copy of the agreed protocol, signed by the Ministers, was provided on 20 August 1998. On 26 August 1998, I wrote to the other Cabinet Ministers for details of their documented protocol arrangements.

It is apparent from an examination of the protocol documents that have been provided that divergent approaches have been taken by different Cabinet Ministers as to the allocations of roles and responsibilities as between the Cabinet Minister and his or her delegate. Different Ministerial responsibilities will of course necessitate differing arrangements between Ministers.

It is also apparent that in general terms, the protocol documents have been drafted as informal, working or operational documents rather than as formal instruments intended for publication even within the relevant departments.

It is probably the case that a delegation made under section 9A makes no difference to the extent of the 'formal responsibility and accountability' to the Parliament and elsewhere of the Cabinet Minister. Clearly, the Cabinet Minister is responsible in all relevant senses for the actions of his or her delegate. Confusion in the public mind regarding responsibility can, however, arise where it is not clear who is the Minister to whom particular matters should be addressed.

As the protocol documents are not, published, members of Parliament and members of the community would not be aware of any limits on the authority of the delegate Minister and have no basis for directing their questions as to particular matters other than to the Cabinet Minister responsible for the matter, regardless of the section 9A delegation.

For Parliamentary and public accountability to be achieved, and to assist in ensuring that public confidence in the internal process of government is not undermined, in my opinion, it is important that the allocation of roles and functions as between the Cabinet Ministers and their delegates be a matter of public knowledge.