Redrawing the line in the public interest – The Select Committee


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Where is the boundary between senior civil servants’ designated public duty and party-political tasks? The Mandarin Brains Trust discusses.

Where should senior public servants and political staffers draw the line? That is the question we have put to members of The Select Committee – The Mandarin Brains Trust.

More specifically:

Where is the boundary between their designated public duty and the apparent expectation by some ministers that it’s ok for public funds to be spent on political objectives like garnering votes for pre-selections or funding programs skewed to marginal seats?

There are many examples from Australian governments — federal and state — where public servants have been pressured (bullied even) into acting in party-political ways. And too many cases in which senior public servants have been removed and/or denigrated for pushing back, or even for giving frank advice.

Performing party-political tasks should not be confused with supporting the government of the day. The public sector knows the difference – and so do governments, by the way.

But when the pressure is on, senior public servants can be often placed in difficult positions. Where should they draw the line?

What follows are some insights from The Select Committee on that very topic.

Terry Moran AC

Terry Moran AC was, as Secretary of the Department of the Prime Minister and Cabinet, Australia’s most senior public servant, from 2008 to 2011. His current roles include: Chancellor, Federation University; Chair, Centre for Policy Development; Vice President, Walter and Eliza Hall Institute of Medical Research; Director Menzies Foundation; Ambassador, Teach for Australia.

Terry Moran

“The good news is that while wandering away from traditional Westminster patterns into “Washminster”, as it was once described, we have not descended into pathos, incompetence and failure of the sort currently exhibited in Washington.

“Compared to America our Federation has performed very well in the face of COVID-19, political leadership at National and State level has been highly effective and the public service has been given an opportunity to perform, indeed shine, as it should.

“But there are still many areas of unnecessary failure. The outsourcing of service delivery by Canberra is a sobering example of how to sacrifice the interests of citizens in pursuit of profits for the private sector. Think employment services, aged care, early childhood, vocational education and training, and corrections/detention services.

“These and other areas are not delivering in the public interest because of a dogmatic interpretation of microeconomic fundamentalism, given expression through the contracting state. This was assumed to provide a source of greater efficiency and innovation. Unfortunately, it has morphed into a willingness to oblige companies with contracts and profits which their performance does not justify.

“The public service has neglected to identify and address the failures. Thus,  ministers are able to continue providing comfortable contracts to ineffective private providers. It would be better to shift to a system of specialised independent agencies with professional management and competent Boards empowered to manage delivery, report results and take responsibility for failures. An ideological obsession with avoiding public sector institutions as delivery agencies should be set aside.

“We have many of these specialised agencies already. An extension of this system and structural rearrangement within Government would have the effect of keeping advisers away from tempting operational decision making.

“Traditional Departments of State are best focussed on their areas of strength – supporting and advising ministers, constructing budgets, working through legislative initiatives and coordinating within their area of responsibility.

“Treasury is a good example of this approach in practice.

“To ensure the divide between ministers and their departments, ministerial advisers should be given clear roles, prescribed in legislation, which can be monitored and reviewed by an independent Integrity Commission able to report to Parliament. It is likely that the number of advisers could be reduced, their professional knowledge of the field in which they work enhanced and the public interest served.

“Reform can deliver big gains. There are public sector institutions delivering services more efficiently and at least as effectively as their private sector counterparts. Public sector institutions at the local level are more in touch with and accountable to their communities and able to achieve better results than nationally contracted companies. We are facing tough times and should turn away the rent seeking system which has emerged.

“COVID-19 cannot produce more of the same. Our response requires a refresh of the uniquely Australia social contact, which can spring from a different (and decarbonised) economic structure and a rejuvenated public service which can boost economic and social participation in partnership with communities.” – Terry Moran AC

Helen Sullivan

Professor Helen Sullivan is Director of the Australian National University’s Crawford School of Public Policy. She is a public policy researcher, teacher, advisor, and innovator with a commitment to bridging the gap between public policy research and practice.

Helen Sullivan

“Public confidence in our institutions is one of the most pressing issues of our times. The lack of integrity on display by politicians at federal, state, and local levels is corrosive of public trust, and is one of the key reasons that trust in government and its institutions, including the public service, is in freefall.

“This is dangerous for democracy, as citizens hear or read of bad behaviour but no one is ever held accountable, and worse still, poor conduct is excused or ignored in the confident expectation that the public will forget about it. So this is a big, institution sized problem, which demands a comprehensive response, including the strengthening of accountability mechanisms, and the establishment of independent bodies such as a federal ICAC.

“But institutions are made up of people, and so action to recover public trust and confidence demands that individuals wherever they are in the system act with integrity. And as the public service remains a hierarchy, the conduct of those at the top shapes the culture that others operate to.

“So senior public servants need to know where the line is and they need to be prepared to refuse to cross it should they come under pressure to facilitate inappropriate spending of public money. This task has become more difficult as departmental secretaries now serve at the pleasure of the ruling administration. But the line hasn’t moved.

“The current administration’s determination that ministers decide and public servants implement is not new; it’s democracy in operation. But that has doesn’t permit unethical or corrupt behaviour. Public servants operate within codes of conduct designed to protect them and the public good. If these codes are insufficient then they need to be reviewed and strengthened. Public servants also need to be confident that if they are put in a difficult position by a staffer or a minister then they can push back. This may mean securing the support of their Secretary, or the Head of PMC. There need to be clear procedures for public servants to follow should they come under pressure. These procedures will only be meaningful if the culture of the public service prizes integrity.

“The challenge is perhaps greater for political staffers whose number and role have expanded while their experience of public service  has diminished. So their knowledge and understanding of what is appropriate behaviour may be garnered largely from how they observe their peers acting. Here there is clearly a need for contemporary codification of what is or isn’t appropriate conduct along with a regulatory framework that all parties need to support.” – Helen Sullivan

Nicholas Gruen

Nicholas Gruen is a prominent Australian economist and commentator on economic reform and innovation. He is the CEO of Lateral Economics and is the chair of the Open Knowledge Foundation (Australia). Nicholas has a PhD from the Australian National University and he is currently a Visiting Professor at Kings College London’s Policy Institute.

Nicholas Gruen

“The principles are fairly straightforward at least in principle. Political staffers act for the minister and the minister should be accountable for staffers’ actions. This follows from the basic common law principle that principals are responsible those who act as their agents. Sadly, for decades now, there’s been a tacit bipartisan agreement to leave things as they are. This effectively prevents any effective accountability regime being established over staffers. And over time this is increasingly degrading the accountability of ministers who are increasingly using their staff as deniable ministerial proxies.

“Regarding public servants, they should assist their political masters administer programs including exercising their ministerial discretion according to law. They should obviously not be drawn into assisting them to exercise that discretion in politically partisan ways, and it is likely that this would be beyond ministers’ power under the legislation they administer.

“The problem however is one of interpretation. Ministers will deny acting improperly. Public servants should not assist or coach them in making disingenuous claims, but if ministers can figure out how to cover their tracks and assert their probity, unless a public servant has clear evidence that they are acting improperly, it is difficult for them to do anything other than assist their ministers in their work.

“If it seems highly likely the minister is acting improperly, the next step according to the book is for the public servant to write to the minister: informing them that, in the  department’s professional view, the proposed action is ultra-vires or beyond the minister’s power; and seek a formal written direction from the minister in response. One can see an exemplary letter of this kind written by a senior British civil servant recently at this link.

“Unfortunately however, after the widespread sackings that cleared the public service decks on the ascension of new governments in 1996 and 2013, and the summary removal of Paul Barrett and Paul Grimes each for giving unwanted advice, these values are imperilled. It would be nice to be bipartisan in offering such admonitions. But the fact is that it’s the Coalition that has perpetrated virtually all these heavy blows against our Westminster heritage which evolved in England and then Australia over centuries. It’s ironic that such people call themselves ‘conservatives’.” – Nicholas Gruen

 

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