‘Unfair and biased’: John Lloyd gets the last word

By Stephen Easton

Thursday October 18, 2018

Former Australian Public Service commissioner John Lloyd has complained of unfair treatment by the merit protection commissioner’s office, and accused it of smearing his reputation by commissioning a flawed and biased investigation into complaints that he failed to remain apolitical in the role.

Lloyd returned fire in a letter tabled this week with accusations of a conflict of interest on the part of John McMillan, the law professor, recent acting New South Wales Ombudsman and former Commonwealth information commissioner who was called in to investigate two complaints on behalf of the MPC.

Ironically, the decision to appoint an external investigator was an attempt to avoid a conflict of interest of a different kind — having the APS commissioner investigated by then-acting MPC Mark Davidson, whose substantive role sits below both commissioners within the same organisational structure — on the advice of Robert Cornall, a past secretary of the Attorney-General’s Department.

“My rights to a fair hearing were not respected.”

The Senate’s Committee of Privileges agreed to table Lloyd’s long series of complaints about procedural fairness, McMillan’s conclusions and reputational damage in line with Senate resolutions that afford protections to people discussed by name under parliamentary privilege, which covers the investigation findings as they were tabled in parliament on August 21.

The committee notes most of the same complaints and counter-arguments were advanced by Lloyd during the inquiry and already appeared in the investigation report itself, but obviously saw no harm in letting him put his point of view on the record in full. Lloyd also refers the reader to a letter he wrote to the MPC complaining about how the inquiry was conducted, which is included in the report tabled on August 21.

The former commissioner disagrees with McMillan’s adverse findings and says they were “amplified” by “most unsatisfactory processes” in how the complaints were handled. “My rights to a fair hearing were not respected,” he states, going on to argue the findings went a long way beyond the initial terms of reference, and that he would have given “materially different” evidence if he had known where the process was going.

He thinks the external reviewer appeared conflicted because McMillan criticised him in 2015 over his views that the freedom of information act had gone too far. This view, which appears contrary to the pro-disclosure spirit of the legislation that remains in place, has also been expressed by several APS secretaries since the Coalition was elected in 2013 with a clear antipathy to the transparency regime.

McMillan was interviewed by journalists from The Guardian on the matter for a relevant expert opinion, given he was ultimately responsible for the FOI system in his former role at the Office of the Australian Information Commissioner, which was severely defunded and undermined in other ways by the government after its attempt to abolish it entirely failed.

His actual quote was: “I think it’s terrible that the head of Treasury and the head of the public service commission feel comfortable in speaking out and saying FOI has gone too far, without having to explain what is meant by it’s gone too far.”

Lloyd argues this amounted to adverse commentary about how he was discharging his responsibilities as commissioner, which was also broadly the subject of the investigation, and that it suggests a bias against him because McMillan had chosen to make the comments in a public forum.

‘Potential conflict discussed, but dismissed’

Lloyd says Davidson, the acting MPC, knew of McMillan’s comments when he was engaged the investigation, and the potential conflict was discussed, but dismissed on the basis that it was not relevant. Lloyd strongly disagrees and says if roles were reversed, he would have declined the job for this reason. One of his many small complaints is that he wasn’t aware of these comments until late July and that niether Davidson nor McMillan told him about them.

Lloyd disputes once again that he did anything wrong by personally sending a document detailing supposedly soft conditions in APS enterprise agreements to a Coalition-aligned private research body, the Institute of Public Affairs, and rejects the suggestion he should have handled the organisation’s request differently — by forwarding it to the media team or another senior executive, or perhaps told his interlocutor to file an FOI request.

“The reasoning for this conclusion is unsound,” he argues. “The Australian Public Service Commission (APSC) receives numerous requests for information. It is a normal and embedded part of the business of the APSC. Agencies like the APSC have a responsibility to share information with outside bodies and the public.”

Asking the IPA to request a document under FOI would be “ludicrous” and would have costed both the agency and the think-tank more time and money, he writes, while passing the request on to a senior colleague would have been seen as a “contrived arrangement” designed as a way for the commissioner to avoid responsibility. “The document was in existence, a number of officers had contributed to it. I informed others of the request that was made to me by the IPA. The straightforward, efficient and simple approach was to email the document to the Executive Director of the IPA.”

It is not clear how the IPA came to know of the document’s existence. Not knowing exactly what to ask for is quite often a stumbling block for less well connected researchers and journalists trying to extract useful information from government agencies. This leads them to cast a wide net through the FOI system, which often leads to high fees being demanded from the agency or the request being rejected on the grounds that it is too broad.

Another of McMillan’s observations was that controversy arose for the APSC and the public service as well as the commissioner when his chummy relationship with the IPA was revealed; but Lloyd says this view “displays a staggering ignorance and naivety of the way workplace bargaining is conducted” because, he assumes, the only people who were really upset were union officials and people who opposed the government’s enterprise bargaining policy.

Given industrial relations is the key area of partisan policy divergence, one might argue the APS commissioner should tread particularly carefully in this arena. Lloyd saw his role as leading the charge in a “hard bargaining environment” against the union’s campaign tactics, returning fire with politically charged attacks on behalf of the government rather than trying to stay above the fray.

‘Ridiculous in the extreme’

“It is entirely reasonable and appropriate to build support for the Government’s policy,” he writes in direct challenge to the criticism that he was “building a coalition of support” for his own views.

“The opponents employed a range of tactics with vigour to build support for their position. It … would be contrary to my obligation as APS Commissioner, responsible for the good reputation of the APS, not to build support for the policy position of the Government.”

Recalling the “strong language and attacks from union officials” he faced during an extremely long and acrimonious bargaining round, he goes on to dismiss the findings as “ridiculous in the extreme” and accuse the MPC investigation of ignoring the tense and combative time shortly after his appointment, which was immediately attacked by Labor and unions.

“They indulged in very personal attacks. Any position I advocated inevitably generated strong opposition and crticism. I was accustomed to this tone of response from such people. I have never chosen to succumb to personal abuse. The reasoning in the Report takes one down the path of yielding to such tactics.”

He also questions the reasoning behind the findings — that he did not act dishonestly, or lack integrity, but did not act ethically — and suggests this indicates McMillan could have been conflicted.

In a long litany of complaints, Lloyd says the inquiry took too long to start but then was completed too quickly, should have interviewed more witnesses, suffered from partisan leaks, and did not provide him with a reasonable length of time to read documents like the transcript of his interview before responding.

The Mandarin is giving John McMillan and the Merit Protection Commissioner, Linda Waugh, the opportunity to respond to the accusations.

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