How should public sector leaders react to political bosses who ignore convention?

By Chris Johnson

Friday November 20, 2020

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The final in our week-long series What if it happened here?

This week we have presented a series of feature articles from staff writers and commissioned contributors comparing what is currently happening in Trump’s America with his attempts to politicise the public sector, to the situation here in Australia.

It was even part of the Mandarin Talks discussion on Wednesday with some of our brains trust panel.

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Now we give you more insights on that topic from The Select Committee – The Mandarin brains trust,  to wind up this feature series.

We have asked them this question:

How should senior public servants respond when they are directed to act against norms and conventions, as is currently happening across various levels of government in the US?  

 What follows are some well thought-out and argued remarks from Terry Moran AC, Ken Smith, and Geoff Gallop AC.

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

“Fortunately, Trumpism has not been unleashed on Australian governments. Even so, tensions arise between ministers and their advisers and public servants.

“For public servants, a sense of professional obligations is usually derived from provisions in Acts of parliament and regulations.

“Legislated requirements are readily accessible, and norms and conventions are best seen as a reflection or elaboration of these legislated requirements. The level of clarity is such that, taken as a whole, they are seldom a minefield for the unwary or inexperienced whether they be young officers or experienced executives.

“The basic reference point in a difficult situation is the Public Service Act and the values, code of conduct, employment principles and guidelines set out there. Usually any uncertainty about interpretation on the part of a public servant would be taken up with the agency head or the Public Service Commissioner. These provisions are important because they define a conventional view of the relationship between a minister and public servants and also set out those matters on which a minister should not give directions.

“It is possible that public servants are less confident in their knowledge of the provisions than they should be and, in the case of ministers, there is often a comprehension gap.

“It is in the role ministers play that norms and conventions are more numerous and often poorly understood. For example, ministerial responsibility is such a convention.

“If a public servant receives a direction from a minister inconsistent with the public servant’s duties or responsibilities under legislation they should:

  • explain the professional difficulties involved;
  • suggest an alternative approach to the issue remembering that options and the choices they provide are always a good basis for advice; and
  • if it is not acceptable to the minister, ask that it be taken up with the agency head.

“If the troubling direction comes from a ministerial adviser, it is best to refer it to the agency head for discussion with the minister. A political adviser lacks the legal authority to provide direction although in circumstances where the adviser is passing on a specific decision of the minister, convention provides that it be accepted as such.

“In the face of these relationships, an important and influential reform would be to permit an Integrity Commissioner to examine, as part of an inquiry utilising public hearings, adherence by public servants to requirements established under legislation. This would open up topics beyond criminal or civil law and shed light on the professional considerations surrounding any problematic direction to a public servant by a minister or an adviser.

“Inevitably, this would require that political advisers as well as public servants may be called to give evidence before a hearing conducted by an Integrity Commissioner. Political advisers should face no limits on their responses to questions beyond those applying to the public servants. This arrangement would help reduce problems surrounding the ‘black hole of accountability’ which ministerial advisers represent.” – Terry Moran AC

Ken Smith

Professor Ken Smith is the CEO and Dean of the Australian and New Zealand School of Government (ANZSOG), and Enterprise Professor at The University of Melbourne. Ken served for more than three decades in the Queensland government, including as Director General of the Department of the Premier and Cabinet between 2007 and 2011. Additionally, he has had diverse public sector experience from roles in NSW and Tasmania.

Ken Smith

“At the outset, I should emphasise there is much to celebrate in our Westminster-style system. While it is by no means perfect and we are constantly debating areas  for improvement, there are  still  many checks and balances in our system which help protect important norms and conventions. “Australian public services are largely bi-partisan professional institutions and generally understand the separation of the role of the public service from the political system. This is re-enforced in statute establishing public services and by the practices of a myriad of monitoring institutions, many of which are not subject to direct control of the executive.

“It is difficult for us to comprehend that electoral processes in the US are not independent of partisan interests. In Australia, the Australian and state electoral commissions, remain completely independent in the conduct of elections. The US also has a long process of transition from an incumbent president to inauguration, and it relies on the losing partner conceding defeat graciously. And what we’re seeing is that’s not occurring.

“In the US it is extremely difficult to maintain norms and conventions because political appointments go deep into public service  organisations, and it is difficult for public servants when their political masters lead by example in their actions to challenge norms and conventions.

“On the other hand, in our Westminster style system, we have a tradition where governments before the election go into caretaker during the campaigns and only come out of caretaker when there is a clear outcome of the election. And in that environment public servants operate to keep the system bubbling over in a nonpartisan way to make sure that citizens continue to receive health services, education services, income support and other things without changing policy position during that time.

“As public servants during the term of any government, we clearly need to uphold the law at all times. This includes vaguer notions of always working to maintain the public interest. Where matters are not strictly about issues of legality but interpretation, we have to make sure that the public servants don’t operate in a partisan way, and don’t behave as if evidence isn’t important.

“Again in the Australian context, we would be wise to remember a few truisms in ensuring we operate with an eye to the public interest and protecting the important norms and conventions in our system by:

  • providing advice to ministers based on the best available evidence and in writing;
  • seeking  legal or independent advice from an integrity commission or an anti-corruption body if in doubt;
  • keeping a close watch on public reports of the ‘monitory agencies’ such as the auditor general, ombudsman, FOI commissioners, integrity commissioners etc; and
  • always keeping in mind that if your integrity is so compromised, resignation is always an option.

“Of course, this is not always easy in our busy daily lives. But the implications for getting it wrong can be deleterious to our careers and our role in serving the public without fear or favour.” – Ken Smith

Geoff Gallop AC

Emeritus Professor Geoffrey Gallop AC was the 27th premier of Western Australia (2001-2006), he is the former chair of the Australian Republican Movement, and was director of the Graduate School of Government at the University of Sydney. Today he is a Member of The Global Commission on Drug Policy based in Geneva and is a member of the Friends of the Corporate Mental Health Alliance Australia. He chairs the Research Committee of the New Democracy Foundation.

Geoff Gallop

“As neat as it is, and as important as it is when considering the public interest, the distinction between ‘politics’ and ‘administration’ can lead us to over-simplify the real world of government. If only there was a clear and universally understood line separating the world of the politician from the world of the administrator.

“On the one hand you have the ministers of the Crown; all politicians and   accountable to their leader, their party and the electorate. So too, to themselves as ambitious and committed individuals keen to make a name for themselves. They want to maximise the good things said about them and minimise the bad. Information management of this sort — which others may call ‘spin’ – has become central to the way political offices are constituted and run on a day-to-day basis. Their public servants are expected to ‘deliver’ in a range of ways and sometimes as advocates in a boisterous public meeting convened to explain a particular initiative which they haven’t supported within the policy-making process.

“On the other hand, then, we have the public service accountable to the elected government of the day, but also mandated to ensure the public interest, in all of its manifestations, is properly protected and promoted. Like politicians too they have reputations to protect and departmental interests to promote.

“There’s a form of politics within the public service just as there is within a cabinet and its parliamentary supporters. Their roles will vary but for all, whether a police officer on the beat or a director of policy within the department there will be few days that don’t involve a form of questioning: Is what I am doing the right and proper thing to do? Too what extent for example should a public health official within government speak out when his or her knowledge says that lives are at stake due to government action or inaction?

“In one important respect, both minister and officials have something in common – at least in the states and territories if not adequately in Canberra – and that is scrutiny by a range of accountability agencies, including anti-corruption agencies.

“My first conclusion is that public servants should be fully briefed on the work of these agencies and what they have determined about good and bad/right and wrong in the various cases they have investigated. The ‘I wasn’t aware’ defence won’t work anymore; ‘being aware’ is now part of the job.

“Just to add to the complications is the worrying observation that while a particular practice may have never been subject to independent   scrutiny for its acceptability, it may do so in the future. The public interest is forever being developed, as we see today when it comes to ministerial offices and what happens in them.

“What if a government is keen to push the boundaries in ways that cause concern for the public servant? It might not be the case that illegality is in play but rather ‘conventions’ and ‘understandings’ about what is right and what is wrong and about what to do or not do in particular circumstances. All of this can be particularly important when in caretaker mode or, indeed, when one government is transitioning to another, as we are witnessing in the USA today.

“A useful way a worried public servant might think about this would be to use Hirschman’s ideas of ‘exit’, ‘voice’ and ‘loyalty’.1

“He or she may speak out, the ‘voice’ or ‘truth to power’ option, and trust that the consequences are manageable when it comes to their ongoing employment. For example, the ‘speaking out’ may be on a confidentiality basis with an accountability agency or the media. No easy pathway here but plenty of case studies to reflect upon, including those related to whistle-blowers of all sorts.

“On the other hand, they may think to themselves that it’s all too much to bear, an ‘exit’ from the system being the best option for them personally and for the public service generally. This they can do silently (‘I’m exploring other employment options’) or politically and openly (‘I can’t work under such a lack of principle’). If the former, there’s little chance they won’t be pursued by the media to give ‘their side of the story’, not always an option that makes life easier for the person involved, but one that may help in bringing the truth out into the open. Again, plenty of case studies here.

“Finally, there’s the ‘loyalty’ card, doing what the government requires no matter what doubts they may have as to its ethicality. After all, this is what is at the heart of public service – working diligently for the elected government but also armed with the Bagehot2 explained rights – to be consulted, to encourage and to warn. However, just as is the case with the voice option there is a level of risk attached to this strategy. Warnings about ‘conventions’ rather than ‘laws’ may not go down well with the minister hungry to ‘get things done’. The distinction may be hazy and not tested beyond what we now call ‘the pub test’.

“Events may get out of control and ministers and public servants may find themselves appearing in an inquiry where the ‘Nuremberg Defence’ of ‘I was only following  orders’  won’t be enough – or, indeed, relevant at all. The motto of such inquiries inevitably becomes ‘Surely we can do better’!

“These are the judgement calls that have to be made when a public servant becomes worried about what they are being asked to do. They aren’t just technical and managerial but also highly personal. This being the case, the two things that would help are (1) documenting the instruction, including when it was given and how it was give and (2) ensuring that advice is tendered through the department to the minister about any concerns that exist about that instruction.

“This whole question of ‘politicisation’ and what it means and how it is applied in specific situations is never easy. Governments do need to get things done and the public need to be assured they are being done properly. In contemporary politics we can see how public servants are caught up in all of this. This being the case there can’t ever be too much focus on the public interest and its behavioural as well as its strictly legal requirements.”3 – Geoffrey Gallop AC


READ MORE IN OUR ‘WHAT IF IT HAPPENS HERE?’ SERIES

Could Trump’s America come to Australia’s public sector?

A different kind of public service, a different kind of system

Stewards of democracy: Public servants are Australia’s vanguard against cronyism in turbulent times

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

Do consultants help avoid public sector politicisation?

Australia seeing a ‘creep’ in political public service appointments, ex deputy secretary warns

 


References

  1. Exit, Voice and Loyalty (1970). In his account Hirschman is dealing with consumers thinking through what to do in the face of deteriorating goods or services being offered.
  2. The English Constitution (1867)
  3. Geoff Gallop, “Trust, politics and the public interest”, in Tom Frame (ed.), Getting Practical about the Public Interest, Connor Court, 2019).

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Chris Johnson
Managing Editor

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