Governing the City State - Chief Minister and Treasury Directorate ...

Just because an official is exercising a decision making power in their own right does notmean they need to hold, and behave, as an independent office holder. Just because anindividual holds a statutory office should not, unless there is a clear conflict of interest,prevent them from contributing to the policy development process.In this context, the first question to be asked would be “why can’t the particular role orresponsibility be discharged by a public servant?”Creation of statutory offices worsens the fragmentation of policy and decision makingprocesses, and in a city state government, can be an inefficient diversion of resources(especially in the creation of separate corporate support functions for example).In the event it is thought necessary to create statutory decision making powers or functions,the default position should be that the powers are vested in a public servant. Given theprimacy of the Human Rights Act 2004 in ACT Legislation, it could be argued that thecapacity and jurisdiction of the Human Rights Commissioner could be expanded to includeissues where it is necessary to have decisions made at some distance to avoid conflicts ofinterest as an alternative to creating a new and separate statutory office. Another optionwould be to vest responsibility in an office holder in another jurisdiction (as happens now inrelation to the ACT Ombudsman).A further issue worthy of clarification is the extent to which statutory office holdersparticipate in the preparation of papers for Cabinet. There is a balance to be struck betweenbringing expertise to bear in the decision making process and maintaining appropriatedistance between the Government and independent office holders. It would be more inkeeping with the independence of the four offices named above to have a more formalprocess of consultation on certain matters rather than providing blanket access to draftCabinet Submissions as is the case for some offices now. Of course, and in relation to theAuditor-General in particular, any engagement in the policy decision making process mightitself represent a conflict of interest.Concerns about statutory independence of decision makers and office holders go, ultimately,to public confidence that the holder of that office is able to exercise their functions free frompolitical interference, or other outside pressure. In most cases, this is achieved for relevantpositions through provisions which give security of tenure. Office holders in the judiciary orthe Auditor-General, for example, are able to perform their functions impartially, secure inthe knowledge that they cannot be removed from office other than in exceptional and definedcircumstances. Because they have this security, they are able to participate robustly in publiclife. The corollary of that freedom is that they are far better able to resist political pressure orcriticism of their decisions than a public servant charged with statutory functions.This highlights the nub of the issue to which the proposed review of statutory offices shouldturn its mind.Governing the City State: 104