Crux of the issue
As part of the Morrison government’s response to the 2019 Thodey review into the APS, the Australian Public Service Commission has outlined a process to develop guidance and training on the respective roles of ministerial offices and the Australian Public Service.
Recommendation 11 of the 2019 Independent Review of the Australian Public Service, conducted by an expert panel led by former Telstra CEO David Thodey, issued several measures to strengthen APS partnerships with ministers by improving support and ensuring clear understanding of roles, needs, and responsibilities:
- Secretaries Board and agencies to improve APS support for ministers, including by:ِ
- providing common platforms for ministers and offices to collaborate with public servants and readily access APS advice and insight
- establishing portfolio and service-wide mechanisms for Ministers to provide periodic and real-time feedback to the APS
- training APS employees on how to support ministers and their offices effectively, including on the role of ministerial advisers
- APSC to update guidance on roles and responsibilities, defining interactions between ministers, their advisers, and public servants, to support induction and training for all parties.
- Agency heads to support SES officers to work in ministerial offices and then return to the APS.
- Amend the Members of Parliament (Staff) Act 1984 to establish a legislated code of conduct, with appropriate enforcement provisions, for advisers.
- Government to set guidance for ministerial offices to have at least half of ministerial policy advisers with public service experience.
The full recommendation also included implementation guidance:
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- Exempt deliberative material from release under FOI (recommendation 8).
- Cover the role of advisers to ministers in induction and training on the respective roles of ministers, parliament and the APS (recommendation 5).
- Use APS-wide SES capability assessments (recommendation 23) to identify high potential SES for ministerial offices.
- Make experience in a state or federal ministerial office highly desirable for appointment to SES Band 3 positions.
- Consider re-establishing a position of senior departmental liaison officer in ministerial offices.
- In developing legislated code of conduct, acknowledge parliamentarians are accountable to parliament for the conduct of their staff.
This was, as The Mandarin covered at the time, one of three rejected recommendations from Thodey’s list of 40.
In its response ‘Delivering for Australians‘, the Morrison government said it, “does not agree to change arrangements for advisors” and that it “expects all ministerial staff to uphold the highest standards of integrity and it uses a range of mechanisms to ensure they are held to account for these standards.”
“The Government does not consider it necessary to amend the Members of Parliament (Staff) Act 1984 as proposed. The Government, and successive governments before it, have maintained a high number of policy advisers with public service experience and the Government does not consider it necessary to set a formal guidance about the number of advisers in each office who should have public service experience.”
However, the government did agree to provide better training and guidance on how public servants can support their ministers, with the APSC to update its guidance on the roles and responsibilities defining interactions between ministers, their advisers and public servants.
Last Wednesday, October 21, 2020 the APSC announced it would undertake this process in close consultation with the Department of Finance and with assistance from a Ministerial Liaison Reference Panel involving:
- a deputy secretary from the Department of Prime Minister and Cabinet, Stephanie Foster;
- a current ministerial chief of staff, Rachael Thompson; and
- three former senior advisers to prime ministers:
- Ben Hubbard, former chief of staff to Prime Minister Julia Gillard
- Tony Nutt, former principal adviser to Prime Minister John Howard
- Wayne Eagleson, former chief of staff to NZ prime ministers John Key and Bill English
There will be two components to the work:
- Guidance and training for the APS on engaging effectively with ministers and their advisers. This will involve training programs for senior executive services (SES) and others with close engagement with ministerial offices, and guidance materials to help every APS employee understand their role and the role of their minister and ministerial advisers.
- To complement this program, guidance and training will also be provided to staff employed under the Members of Parliament (Staff) Act 1984, to strengthen their understanding of the role of the APS, and ensure a shared language across these two vital components of Australian democracy.
With initial training and guidance anticipated for release in early 2021, the question becomes what the process of developing guidance and training for the APS and ministerial staff will look like, and whether the final products will prove adequate to addressing Thodey et al’s core findings.
The playing field
As the Department of Finance explains, ministerial staff are employed under Part III of the Members of Parliament (Staff) Act 1984, and, along with other MOP(S) Act employees, are subject to terms and conditions in the Commonwealth Members of Parliament Staff Enterprise Agreement 2016-2019 (the Enterprise Agreement) which sets out the employees’ terms and conditions of employment.
While individual office-holders, senators and members are the employers of their staff under Parts III and IV of the MOPS Act, the legislation provides a wide discretion for a prime minister to determine the employment arrangements for MoPS staff through determinations, which can also be issued by the special minister of state.
The Enterprise Agreement Guidelines cover learning and professional development, among other elements, and Finance currently provides a professional development program — which includes ‘MOP(S) Act employment – terms and conditions’ and ‘office management’ information sessions — along with ICT training programs, ad hoc learning and development opportunities, and reimbursements for studies assistance and training provided by party secretariats.
Additionally, the special minister for state calls on staff to familiarise themselves with a ‘Statement of Standards for Ministerial Staff‘ — i.e., “behave honestly and with integrity in the course of their employment” — and comply with a ‘Lobbying Code of Conduct‘, which sets out requirements for meeting with lobbyists and prohibits certain lobbying activities for 12 months after staff cease employment under the MOP(S) Act.
Ministers are also responsible for ensuring that all employees complete a Statement of Private Interests form at the time of their appointment, and are responsible for ensuring employees have no conflicts of interest and statements are updated annually or within 28 days of significant changes.
Under ‘Determination 2013/12: Determination of condition on exercise of power of Office-Holders, Senators and Members of the House of Representatives to employ staff‘, senators and MPs are prohibited from entering into employment agreements under the MOP(S) Act with their following family members:
- a spouse, de facto partner, child, parent or sibling of the senator or member,
- a child of the spouse or de facto partner of the senator or member,
- a spouse or de facto partner of a child of the senator or member, or
- a spouse or de facto partner of a sibling of the senator or member.
Senators and members are not prohibited from employing a family member of another senator or member.
It is worth noting that the APSC created a guide in the mid-2000s to support ministers: for example, agency heads and their executive are called on to:
- Set the relationship with ministers and their offices by their own good example, clarify the expectations of ministers of the service to be provided to them and any general requirements for implementing government policies and programs, and ensure this is regularly reviewed with the minister along with the agency’s performance.
- Articulate policies and procedures or provide written protocols for achieving these, consistent with the APS Values and Code of Conduct and any other legal requirements.
- Ensure that guidance developed by their agencies deals with those situations known to create challenges for employees.
- Emphasise to senior managers the importance of adhering to these policies, procedures and written protocols, and their responsibility to disseminate them amongst all relevant staff.
- Be openly available to senior managers and their staff who have questions or are seeking advice, including with respect to the agency head’s or executive’s approach in particular cases.
Key points to note
What did Thodey et al make of the APS-ministerial relationship?
Under the chapter titled ‘Ministers and officials: a core relationship’, Thodey et al. cited former ministers and former secretaries arguing that the relationship between the APS and the elected governments is under strain:
“A key issue for the APS is its relationship with the elected government (and to some extent the Opposition) — this has changed, for the worse over time. Governments have shifted from wanting advisers to wanting fellow travellers, and tend to look more for those with similar views; this makes it much more difficult for the APS to operate according to the traditional model (such as being apolitical).” — former APS secretaries, June 2018
Specific concerns included the APS’s policy-making capability, its ability to implement policy and deliver services effectively, its lack of responsiveness and its lack of openness to new ideas.
The report suggests that, for the APS to improve this relationship, the APSC could revisit its guide to bolster “productive relationships between public servants and advisers, in accordance with the Westminster tradition” and that agencies should provide contemporary tools and platforms for ministers to work with, including “ready access to APS advice and data-informed insights” and “portfolio and service-wide mechanisms for ministers to give feedback to the APS”.
On ministerial staff, Thodey et al. emphasise the growth of the network — numbers have risen 32% from 339 in July 2000 to 449 in June 2019 — and its influence; as retiring departmental head Ric Smith observed in 2012, ministerial advisers now advise “on the full range of a minister’s responsibilities. In effect, by comparison with 1969, we now have a whole new layer or level of government.”
The report also cites the 2015 Shergold review, Learning from Failure, which noted that “despite the demands of their positions, ministerial advisers receive little role-specific training or institutional support. There is no formal induction process for new advisers. Most of their learning is on-the-job”.
Thodey et al found that, “while some training and development is made available for advisers, including by Finance, it is reported that courses are poorly attended,” and recommends that:
“…high quality and relevant formal induction processes and training be provided to ministerial advisers and, while recognising the demands of their jobs, they be encouraged and supported to attend. Current and former ministers and advisers should contribute to the design and delivery of training and induction. These should cover, among other things, the Statement of Standards for Ministerial Staff or the proposed code of conduct, the role of the APS, and the constraints within which public servants operate.”
The report finds that the Shergold review also suggested rotating public servants through ministers’ offices as advisers to build good understanding and trust between the APS and ministerial offices, but that the recommendation was not followed up. It also calls for ministers and public servants to be co-located, as in the UK and Canada, and suggests ministers trial the system in non-sitting weeks.
How could the APSC’s new training and guidance systems improve on current initiatives?
Currently, it is unclear how the new training and guidance programs will differ from Finance’s current initiatives, although in responding to a media request from The Mandarin, a representative for the Australian Public Service Commission says they are “in close consultation with the Department of Finance to ensure that outcomes of this work complement existing support frameworks delivered by Finance.”
“The Reference Panel bring the experience and expertise to ensure that the work has longevity and reflects the lived experience of senior officials and Ministerial offices. APSC and the Reference Panel are currently scoping the project, including by undertaking broad consultations. Consultations to date have focused on the APS Senior Executive Service, to gain their insights into effective partnerships between the APS and Ministerial offices.”
Speaking to The Mandarin, the CPSU National Secretary says union members hope the training is more purpose built to complement their work in assisting the community accessing public services, such as through Services Australia, ATO, Veterans Affairs and the NDIA.
“CPSU members want to see this training developed in consultation with MoPs employees who engage with the public service, including but not limited to electorate officers who spend the majority of their work time helping constituents access vital services,” Donnelly says.
“It is also essential that people working in service delivery in the public service are consulted about the implementation — this will ensure up to date advice. Due to the nature of MoPs’ employees work, it is critical to the training success that it be offered on a rolling basis and in half day instalments, to ensure all people can access it.”
The union has apparently written to the APSC seeking a briefing on the program, and “looks forward to providing members feedback and insights.”
Voices of experience
In 2018, RMIT law lecturer Yee-Fui Ng explained via The Conversation how the Barnaby Joyce affair — not a romantic affair, but the deployment of his former media adviser and current partner Vicki Campion as an adviser at two other Nationals’ offices — demonstrated the need for legislated standards for both ministers and ministerial staff.
While the then-Turnbull government argued that the hiring of Campion did not breach the ‘Statement of Ministerial Standards’, in that Campion was allegedly not considered Joyce’s “partner” at the time she was rehired, the ‘Statement of Standards for Ministerial Staff’ requires the disclosure of conflicts of interest:
“Therefore, the relationship between Joyce and Campion should have been disclosed when it arose, as there might have been an apparent conflict of interest connected with Joyce’s ministerial position. It is then up to the prime minister to decide what is to happen following this. But both the standards for ministers and for their advisers are not legislated. They are not enforceable in the courts or in parliament. Enforcement is handled completely within the executive, which has an incentive to bury embarrassing material wherever possible.”
As Bernard Keane wrote in The Mandarin earlier this year, while most advisers work diligently, ethically and professionally for their ministers and cooperatively with public servants, the adviser “brand” has been badly damaged by a number of high-profile controversies:
- the staffers of Michaelia Cash, whom the Australian Federal Police wanted to charge for leaking a raid on the AWU (only to be overturned by the DPP)
- the staff of Angus Taylor, who apparently peddled, if not manufactured, faked government documents
- the staffers of Bridget McKenzie, who rorted the sports infrastructure grants program to within an inch of its life
- in Victoria, the staffer of Marlene Kairouz who appeared to act as a bagman for Adem Somyurek
- Labor staffers in NSW involved in branch-stacking
- a prime ministerial staffer inappropriately sharing copies of a book
Keane argues that the proliferation of advisers since the MOPS Act was enacted in the 1980s should provide a rethink of Australia’s departure from the UK model — a move based on the very 1980s mentality that the public service had too much influence over politics — and that, given the aforementioned scandals, the Thodey review, “now seems like a missed opportunity to undertake a root-and-branch examination of what the role of staffers is, compared to what it is supposed to be, and why ministers and the APS regard them in such contrasting terms.”
“For ministers, they are indispensable and a necessary mechanism to develop and implement policy — even to make decisions legally reserved for ministers (a major problem of the sports rorts scandal that went under the radar). For the APS, they are widely regarded as tools of a government that is uninterested in the advice of the APS and merely expects public servants to carry out policy developed — in however half-baked a fashion — by advisers and consultants.”
Speaking to The Mandarin, Keane argues the new training programs for staffers are “window dressing” and that the Morrison government has no serious interest in having staffers be anything but what they are: “entirely dedicated to the political interests of the minister.” Conversely, for the APS, he argues the process is an extension of the “politicisation of the service, to make departments still more ‘responsive’ to the demands of ministers and their staff, to further erode whatever is left — there isn’t much — of the idea of frank and fearless advice.”
“For staffers, staffers’ jobs are the training — to become MPs, to prosecute factional agendas, to build a CV. Without accountability – staffers are accountable to no public institution – the idea of somehow changing the way staff operate with the APS is foolish.
“The government’s preferred model for the future of the APS isn’t the fantasies peddled by the shills of the APSC but a straightforward mechanism whereby the minister and his office tell the department what advice they want to hear, the department contracts a major consulting firm to provide that advice and hands it to the office, a decision is made and then handed back to the department to implement — preferably with an outsourced private sector partner handling on-the-ground implementation, if needed. The APS functions merely as a post box and admin team, with staffers and consultants doing whatever passes for policy work.”
- ‘Understanding the divergent development of the ministerial office in Australia and the UK‘. Maria Maley. Australian Journal of Political Science. 15 March 2018.
- Ministerial Advisers in Australia: The Modern Legal Context. Yee-Fui Ng. The Federation Press. 28 September 2016.
- ‘The Members of Parliament (Staff) Act 1984 framework and employment issues‘. Dr Nicholas Horne. Parliament of Australia (Research Paper no. 26 2008-09).
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