The Briefing: Donald Trump’s stacking of the US public sector is on another level than local efforts, but only just

By Chris Woods

Thursday November 19, 2020

Prime Minister Scott Morrison. (AAP Image/Getty Pool, Sam Mooy)

Part four of our week-long series: What if it happened here?

Crux of the issue

While Donald Trump’s last-minute effort to stack America’s public sector is on its own level of cronyism, it is not wholly distinct from efforts by current and former Australian governments.

The debate

As The Mandarin reported just days before the US election, Trump has issued an executive order that would establish a new classification for federal workers. It’s dubbed ‘Schedule F’, for those “serving in confidential, policy-determining, policy-making, or policy-advocating positions that are not normally subject to change as the result of a presidential transition.”

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Under the order, the White House claims, federal agencies would have more flexibility to hire Schedule F workers and remove them without going through an appeals process. Critics have labelled it an attempt to fire top infectious disease expert Dr. Anthony Fauci and further politicise the US public sector. As Federal News Network explains, the motion faces two challenges launched in late October: a bill introduced by House Democrats designed to nullify the order — which cannot be passed before Trump leaves office, even if the Democrats win crucial Senate run-off elections in January — and a lawsuit from the National Treasury Employee’s Union.

Since losing the election, Trump has stepped up his attack on public institutions, firing defence secretary Mark Esper — and bypassing Pentagon processes so as to replace him with loyalist director of the national counter-terrorism centre Christopher Miller — and, under Attorney General William Barr, issuing a memo authorising federal prosecutors to investigate “specific allegations” of voter fraud, which have yet to be even substantiated at a significant level.

Esper’s firing led to the resignation of acting undersecretary for defence policy James Anderson, undersecretary for intelligence Joseph Kernan and Esper’s chief of staff Jen Stewart, enabling the Trump administration to replace them with loyalists. Likewise, the head of the US Justice Department branch responsible for prosecuting election crimes, Richard Pilger, resigned in an email to colleagues declaring he could no longer do his job following Barr’s memo.

As BusinessInsider reports, Trump’s post-election “bloodlust” has led to several other officials being fired or resigning — the National Security Agency’s general counsel, the Department of Homeland Security’s assistant director for cybersecurity and assistant undersecretary for international affairs, and the Department of Energy’s head of National Nuclear Security Administration — while future targets may include CIA Director Gina Haspel for opposing Trump’s push to broadly declassify compromising intelligence about Russia; and FBI Director Christopher Wray and even Barr over their refusal to investigate the Bidens for political purposes.

Just yesterday, Trump fired the head of DHS’s Cybersecurity Infrastructure and Security Agency, Chris Krebs, who had worked to counter the president’s conspiracy theories about election fraud, in a move BusinessInsider noted in its earlier reported Krebs saw coming.

These actions are blatant and desperate, and hardly the first instance of Trump undermining the public sector for personal and political ends; see, for example, The Mandarin’s guide to his pre-election gutting of the United States Postal Service and replacing the postmaster-general with a loyalist.

But however obvious Trump’s cronyism may be, he is not the first president to corrupt American institutions. A look at the Australian landscape shows that, however far off our governments are from Trumpism and whatever the benefits of a Westminster system, federal and state politicians are perfectly capable of similarly politicising the public sector.

The playing field

Former deputy secretary of the Finance Department and member of The Mandarin’s Select Committee Stephen Bartos notes that while junior appointments are traditionally merit-based and meant to be apolitical, there are no laws or regulations to stop stacking the public service at the senior levels.

Further, at the commonwealth level, the prime minister and his office decide departmental secretaries, and while they receive departmental advice, they are not bound to it; Bartos says that decisions “used to be up to the ministers of the departments concerned, but this is now centralised with the prime minister — if a minister is lucky they might be consulted, but theirs is not the final say.”

“What this leads to is politicisation from the top down,” Bartos says. “Political appointees decide who will be promoted and appointed under them, these people then decide on promotions and appointments lower down, and so on.”

There are some obvious differences to America’s Maddisonian system — the Republicans’ stacking of the Supreme Court would be unthinkable, for a start, while certain arms-length institutions like the Australian Electoral Commission are independent and vastly fairer than the state-controlled, byzantine and gerrymandering-prone system in the US — and former Public Service Commissioner and ANU professor of public policy Andrew Podger explains that a provision in the Public Service Act would bar Trump’s attempt to (directly) politicise the hiring and firing of lower-level public servants.

“The Public Service Act has a provision in it which prohibits ministerial direction on public service employment decisions,” Podger says. “That doesn’t mean that they can’t influence that by putting pressure on a secretary, but they are not allowed to give a directive.”

He also notes that, in practice, several Australian states employ term appointments for a high proportion of senior executives below the secretary or director general.

“And when you’re on term appointments, there is much more opportunity for a minister to influence those decisions. And there have been cases in different states of very significant political interference of executive servants below the secretary.”

What counts as ‘politicisation’?

Two years after John Howard’s “night of the long knives” in 1996 — where he fired six departmental secretaries, one-third of the total, immediately on becoming prime minister — political scientist Richard Mulgan posited in 1998 paper ‘Politicising the Australian Public Service?‘ that the fact new appointees were generally recognised as respected professional public servants nonetheless “seemed to be contrary to the principle that a professional public service is capable of serving alternative governments with equal loyalty”.

Further, Mulgan suggested that the term “politicisation” should be understood as more than simply appointment on partisan grounds, it “should properly imply any type of appointment which is contrary to the principles of a politically neutral or impartial public service.” He offers three means of compromising the neutrality and professionalism of public servants:

  • by appointing people with well-known partisan connections who will be clearly unacceptable to a future alternative government (partisan politicisation)
  • by appointing people with well-known commitments to particular policy directions that may render them unacceptable to a future alternative government (policy-related politicisation); and
  • by replacing incumbent public servants, particularly on a change of government, when there is no good reason to question their competence and loyalty but simply in order to facilitate imposition of the government’s authority (particularly if the incumbents are dismissed rather than retained with similar status and remuneration) (managerial politicisation)

Howard’s actions were, in part, an example of managerial politicisation; economics editor at the Sydney Morning Herald Ross Gittins explained in 2019 op-ed ‘Memo PM: Government goes better with a sharp public service‘ that Howard, as treasurer under Malcolm Fraser, expressed unhappiness following the 1983 election at how little ministers achieved “because, Howard concluded, the public servants had kept talking them out of doing what they’d intended to do.”

For Podger, outright stacking the public service is not necessarily ideological in the “left vs right” sense but “more to do with the trust of the government in the public service and an impression that they need to have people of their persuasion in order to be confident in the public service. It is a mistaken view, but it is not an uncommon view, particularly for a new government.”

Indeed, Mulgan offers something of a defence of politicisation, at least in the managerial sense:

Does politicisation matter? Is it not a legitimate means of making public servants more responsive to elected governments? Defences of professional neutrality against politicisation tend to rely on the value of ‘frank and fearless’ advice and of the political independence of career public servants. However, such considerations, though not without weight, tend to neglect an equally important justification of a professional service, namely its superior collective experience in managing changing government policy and therefore its greater effectiveness in serving the government of the day. In a climate where managerial efficiency and effectiveness are so heavily emphasised, the managerial capacities of professional public servants should not be sold short.

Speaking to The Mandarin, ANU historian Frank Bongiorno similarly notes that traditions of suspicion over the public service exist on both sides of politics — the Whitlam government apparently saw significant sections of the public service as hostile to its program, especially Treasury — but it has been more characteristic of the Coalition since the Howard government, specifically those that retain “a suspicion that the typical Canberra public servant leans to Labor”.

While Bongiorno notes there are some positives to bringing in political appointments — “undoubtedly, they can bring skills and contacts to the task that might be less well represented elsewhere in the public service — he also explains that there are probably also “fuzzier ideological impulses, like the idea that the Liberal Party is pro-market and therefore a public servant is, by definition, to be regarded with suspicion because they are in government and not in business.”

“And there is, of course, the influence of harder neoliberal ideology from think tanks such as the Institute of Public Affairs that has undoubtedly exercised influence, even producing a senior public servant here and there,” he says. “Another strong influence among pro-market types, public choice theory, also tends to present the public service as an interest in its own right that will ordinarily pursue its sectional concerns and private interests rather than a wider public interest.

“In this world-view, the older idea of public service as just that – service to the public – is simply treated as self-serving propaganda. Something important was lost when that way of looking at government took hold, and Trumpism – with its implication that everyone is lining their own pockets – is one of its progeny.”

Has the Australian Public Service already been politicised?

According to Bartos, trends of partisan politicisation have nonetheless grown “as norms and conventions break down” post the 1996 election; while he says there were few possibly partisan appointments under Bob Hawke, Malcolm Fraser and Paul Keating, their governments “stuck more closely to the Westminster conventions of an apolitical public service”:

It was under Howard that the convention started to break down; basically, ministers and the head of the prime minister’s department sought out people for promotion to secretary or CEO jobs who were closely aligned to the prime minister. They weren’t necessarily looking for party membership (although some of their appointees were Liberal or National party members) but for evidence that their favoured people would do whatever the government wanted, whether legal or not, to help the government get re-elected. However, they were also convinced the public service was Labor-leaning, so felt they had to balance it out by putting conservative Coalition-inclined people in charge.

Labor in the Rudd-Gillard-Rudd era didn’t do anything to shift the balance, possibly because they were inwardly focused on fights over prime ministerial ambitions. But they were also caught in a trap. They had criticised the Coalition for stacking the public service; however, this constrained them from making changes of their own. I summarised it at the time as ‘both Labor and the Coalition are committed to an apolitical and independent public service. The Coalition demonstrates this by appointing conservatives to top jobs, and Labor does so by leaving them in place’.

On Tony Abbott’s “night of the short knives” in 2013, where he fired four departmental secretaries, Gittins says “nothing could be better calculated to send a message to top public servants that survival in their jobs rests on the continuing approval of the prime minister and his ministers, and that any frank and fearless advice they offer will be at their own risk.”

We can also point to Scott Morrison’s overhaul of the APS in late 2019 and reduction of departments from 18 to 14 as an example of managerial politicisation, while there are some debatably partisan picks within departments — Phil Gaetjens, for example, served as chief of staff to both Costello and Morrison — and, as we explore below, blatant partisanship at the Administrative Appeals Tribunal and other bodies traditionally kept at arms length from government.

Morrison’s explanation of public sector advice following the appointment of Gaetjens is telling: “It is the job of the public service to advise you of the challenges that may present to a government in implementing its agenda. That is the advisory role of the public service. But the government sets policy. The government is the one that goes to the people and sets out an agenda, as we have”.

Still, Bongiorno finds it hard to see anything resembling packing or undermining at the federal level, and notes that debates over “whether appointing too many of those with the right political connections or ideological disposition undermines the capacity of the public service to provide the legendary frank and fearless advice” occur under both Labor and Coalition governments. For example, John Menadue had been Gough Whitlam’s principal private secretary when he was appointed Head of Department of Prime Minister and Cabinet in 1974, and, despite some criticism, “proved himself a capable public servant and the Fraser Government sent him to Japan as ambassador, a key post.”

On whether Australia could see anything on Trump’s level, Bongiorno believes that “even taking into account the reality of partisan appointments and the shift toward a hiring and firing culture since the 1980s, there are stronger traditions of public service neutrality and merit in Australia, following nineteenth-century British precedent.”

“Most governments still feel bound at least to gesture toward this ethic. And most governments do understand that they can make these traditions and practices work for them: that a ‘neutral’ public service doesn’t mean an uncooperative or unresponsive one. Coalition governments, for instance, seem to have found some loyal senior public servants among former Labor staffers.

Worst offenders

One of the more extreme examples of managerial politicisation can be found at the state level, with former Queensland premier Campbell Newman controversially engaging Howard’s treasurer Peter Costello to do a commission of audit and cutting 14,000 public service positions, as well as 500 jobs from Queensland Rail, following his 2012 election win.

In a more egrarious example of partisan politicisation, Crikey Inq last year found that 65 of the 333 current decision-making members at the Administrative Appeals Tribunal are former Liberal Party staffers, former Coalition politicians, party donors, members, unsuccessful candidates, or government employees. Attorney-General Christian Porter recently alleged that the list of appointed Coalition MPs is “equally as long from the other side of politics”, although this is misleading in that, by the end of the Labor government in 2013, only 15 members had connections to Labor.

Similarly, Labor this year grilled the Coalition over the four Liberal-linked officials and/or candidates appointed to the eight non-executive members of the Australia Post board.

Podger suggests two explanations for the stacking the AAT with Liberal-linked people “who do not have any obvious experience, skills or relevance to those jobs”:

One motive is to an expectation that such people are less likely to make decisions on issues that come before them that would embarrass the government, whether they be decisions on migration cases or whatever. But the second motive, which I suspect is becoming increasingly important, is that it is a sign of a gift to somebody you want to give something to.

The spoils of office, that’s the motive around that, that ‘we look after our own’ in ways in which, I would regard as improper but there’s a motive there of solidarity in the party as well.

In a possible sign the Morrison government is becoming more bullish about its attitude to the AAT, Crikey reported that Christian Porter’s list of reappointments in September included a declaration that the announcement was “Authorised by Christian Porter, Liberal Party of Australia, Parliament House, Canberra”.

Additionally, both Bongiorno and Podger note that the rise of ministerial advisers since the 1970s has politicised the relationship between ministerial office and government department roles; as The Mandarin covered last month, a key recommendation under the Thodey review — a legislated code of conduct for staffers — has been rejected by the Morrison government for a training process Crikey’s political editor Bernard Keane describes as “window dressing”:

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.

Finally, while not traditional politicisation, a number of Peter Dutton’s power grabs have absorbed public sector responsibilities, specifically the Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017 which empowers the immigration minister to simply override select AAT decisions on citizenship.

For more, see the 2017 report ‘Playing God: The Immigration Minister’s Unrestrained Powers‘ by Liberty Victoria’s Rights Advocacy Project (a body that, for disclosure, this journalist later went on to join).

Can and should public servants be expected to challenge politicisation?

Beyond complaints to the public service commissions or resigning in protest, there is little public servants can do in the face of politicisation.

There are rare examples of public servants speaking out to the media, for example a federal department secretary anonymously contradicting Morrison’s claim last year that his overhaul of the APS was “consistent entirely with the thrust of the Thodey Review”.

The Thodey review included a number of reforms to reduce the trends towards partisan and policy-related politicisation, namely that rejected call for an adviser code of conduct; Podger adds that his submissions on strengthening employment processes for departmental secretary went further and called for the prime minister to make a statement to parliament if advice on the role was rejected.

For his part, Gittins argues that it is not in any government’s interest to quash frank and fearless advice; “No leader has all the answers. The manager who surrounds themselves with Yes-persons is more likely to fall in a hole than achieve great things.”

Finally, Bartos notes that for most public servants, “life goes on regardless” of political decisions, the main exception being for people task with implementing schemes that are “unethical, immoral or illegal — for example, robodebt.

“Robodebt, where you’ve got to feel for the public servants who were made to administer a scheme found to be illegal, where the public service leadership essentially toed the line on the policy when they really shouldn’t have,” Bartos says. “An apolotical public service would have said ‘that is not legal you can’t do it,’ where a politicised public service says, ‘you want robodebt, you get robodebt’.”

Further reading

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