The now infamous email from the Clerk of the Australian Senate makes very clear that the issue’s around Bercow’s choice of Clerk is not one of gender, misogyny, anti-modernisation or xenophobia. The question is, can Carol Mills do the job?

CEO of the Commons? Yes. Possibly. Maybe. Hard to say when a rigged panel, a rigged process and a rigged short list produced a result the Speaker had already decided on. But Clerk? A job that is hers until she retires, as Bercow has made clear? The Times leader this morning does not think so.

Here is that email in full:

Dear Robert

We were utterly taken aback here when we saw a brief press report in early July that Carol Mills had emerged as “frontrunner” to take over from you, and have followed events with increasing disbelief and dismay. It seemed to us impossible that someone without parliamentary knowledge and experience could be under consideration for such a role. I do not usually resort to the second person, but there is not a single individual who has mentioned this to me in the past few weeks, from my most junior procedural officers or senior staff here and senators, to my State colleagues, who has not seen this candidacy as an affront to our profession and the professionalism of us all. “Bizarre” is the word most frequently used to describe the situation. I can only imagine what your staff must be thinking.

. . . (Some Australian parliamentary history deleted) . . .

Since 2004, there have been three Secretaries of DPS, all recruited from outside the parliamentary service, all bringing different skills to the position, and all serving for a relatively short time. Carol has been in the job for just over two years and came from a background in the state public service. In a federation such as ours, with the Commonwealth exercising designated legislative powers of a national character, it is not always easy for a person to move successfully from a state to the Commonwealth civil service. Nor is it a simple matter to move from serving the executive government to serving the Parliament if there is a lack of understanding of what parliaments are and what they do. I am making large generalisations here but, in my estimation, as well as having no parliamentary experience, DPS heads have increasingly demonstrated a lack of appreciation of and/or respect for the roles and status of members and senators and perhaps an overemphasis on the role and authority of the Presiding Officers (to both of whom the DPS Secretary is responsible). If the POs are onside, it seems that little else matters. The consequence of this disconnection from what Parliament does is that there has been a level of dissatisfaction with DPS – and its leadership – that now appears to be entrenched. Moreover, staff dissatisfaction within DPS is often manifested by the provision of information directly to members and senators.

Senators, in particular, have applied the blowtorch of scrutiny to the administration of the department in their thrice-yearly estimates hearings. Estimates hearings are conducted by Senate legislation committees which operate in eight subject areas. The Senate Finance and Public Administration Legislation Committee has Parliament among its responsibilities (but not, of course, the Department of the House of Representatives which answers only to that House, whereas the Senate Department and the joint bodies appear before Senate committees as a matter of course). In addition to examining bills, the legislation committees also conduct inquiries into the performance of agencies within their areas of responsibility.

Most unfortunately, in estimates hearings in 2011, when under scrutiny for administration of heritage policies and practices, DPS was caught out fabricating evidence to our F&PA Committee. This led to a broad-ranging inquiry into the management of DPS and the departure, through ill health, of the second Secretary. An interim Secretary (a retired State Clerk) was appointed pending the search for a new permanent Secretary and was able to diagnose for the Presiding Officers many issues to be addressed. This was the environment into which Carol was appointed in 2012, apparently from a background in the NSW public service that included management of such cultural facilities as the Sydney Opera House, and with a brief to shake things up.

The current role of DPS Secretary includes responsibility for building services (including visitor services), ICT, security, broadcasting and Hansard, and the library. The last is headed by a Parliamentary Librarian who, under the enabling statute, is supposed to operate independently and on the basis of a resource agreement with the DPS Secretary. The Secretary role has no procedural or constitutional dimension that you or I would recognise as a core function of a Clerk. It has no connection with the day to day business of a Parliament, other than in the maintenance of infrastructure and the provision of some ancillary services. While these are clearly very important things, they do not make a Parliament. It is essentially the role of an administrator and bears no resemblance to the role of a professional parliamentary officer.

In the Budget estimates hearings in May this year, a very senior senator questioned DPS about the use of CCTV footage in the course of internal staff disciplinary proceedings, a use that is not sanctioned by the code of practice governing the CCTV system. It appears that a DPS staff member was accused of leaving an upsetting note for a manager. Part of the so-called evidence included CCTV footage of the staff member leaving an envelope under the senior senator’s door. The senior senator had been the initiator of the 2011 Senate inquiry into DPS (which reported in 2012) and had continued to receive unsolicited information from DPS staff. It now transpired that a security system operated by DPS was trained on the office of one of its chief inquisitors and that disciplinary action (proposed dismissal) was being taken against an informant, ostensibly on another basis. I had given advice to the senator – which he released – that the circumstances raised serious questions of privilege. At the hearing, the Secretary’s understanding of parliamentary privilege was described in terms of “the protocols of the protection of members’ and senators’ rights to do business in the building” and she conceded that “there may have been some inadvertent conflict between staff management issues and the principles of the free use of everything in the building for members and senators”, before implying that the staff management issues were more important. The episode was raised as a matter of privilege by both the senior (Opposition) senator and the (Government) Committee Chair on behalf of the committee, and it has now been referred to the Senate Privileges Committee for inquiry and report. The inquiry is in its preliminary stages. Personally, I was surprised that a resignation did not follow.

This episode may have acted as a catalyst for senators’ dissatisfaction with other areas of DPS to bubble over. The result was a second wide-ranging inquiry into DPS proposed by representatives of all parties in the Senate, including Independents, and agreed to unanimously by the Senate. The terms of reference give a flavour of the areas of disquiet and concern, including about fundamental structural arrangements. This inquiry is also in its preliminary stages. While there is a widespread view that the 2004 amalgamation has not enhanced the quality or effectiveness of support for the Parliament, there is also recognition that the eggs cannot be unscrambled. The problem is a much larger one than the individuals who have taken the helm at DPS but, as similar journeys in parliamentary administration in our two largest States have shown, getting the right people into those positions is essential. The right people in both those cases have proven to be people with parliamentary knowledge and experience and the State administrations are working much more happily and effectively as a consequence.

I would have thought that establishing the parliamentary credentials of an external candidate was an essential task for any selection panel. It will no doubt be enormously embarrassing all round if the task has to be done by a select committee. The only thing more embarrassing, in my view, would be to make the proposed appointment.

Robert, such are my thoughts – apologies for their length but this affects us all. I would have no objection to your sharing these views should you consider it useful.

Very best wishes

Rosemary

Rosemary Laing
Clerk of the Senate