Woe betide a public servant on the wrong side of a sudden pivot

By Verona Burgess

Friday October 8, 2021

The resignations of Berejiklian and Constance highlight a passing of the baton to the next generation of NSW.
The resignations of Berejiklian and Constance highlight a passing of the baton to the next generation of NSW. (AAP Image/Dan Himbrechts)

If events of the past week in New South Wales serve as a reminder to federal public servants of anything, it should be that circumstances can change in the blink of an eye.

And woe betide any public servants who find themselves on the wrong side of a sudden pivot.

That’s not to say former premier Gladys Berejiklian wasn’t living on borrowed time. That was obvious to most political journalists ever since her revelatory appearance at the NSW Independent Commission against Corruption last year. 

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It would have been more of a shock if ICAC hadn’t investigated her.

Clause 11 of the ICAC Act specifies, among other things, that a minister of the crown has a duty to report to the commission or to the minister’s agency head any matter that he or she “suspects, on reasonable grounds, concerns or may concern corrupt conduct.”

It is an important stipulation that needs to be included in any federal legislation if it is to have teeth, but don’t hold your breath.

The federal government’s exposure draft of the bill for the much-needed Commonwealth Integrity Commission is more of a Swiss cheese than Romano: it only says a minister responsible for an entity “may” refer an allegation or information that raises a related corruption issue but “only if” he or she suspects the offence has been or is being committed.

This is just one in a litany of weaknesses in the federal draft bill that, if in the NSW legislation, may well have never brought down the likes of corrupt former Labor minister and powerbroker Eddie Obeid.

Yet, with his usual ability to perform multiple pirouettes en pointe, prime minister Scott Morrison was able to mischaracterise the NSW ICAC as subverting the presumption of innocence.

But back to the NSW political caravan which, in a few short days, has already moved on, with the ascension of former treasurer Dominic Perrottet revealing, perhaps to surprised state constituents who had grown to love “Gladys”, that her government was not a one-woman band after all.

There are bound to be some senior changes in the NSW public service, perhaps even before Perrottet’s promised December ministerial reshuffle. NSW is no stranger to politically aligned appointments to the bureaucracy and barring a force majeure, Perrottet is there for the duration; the next NSW election isn’t until 2023.

Which brings us to the next cab off the rank – the federal election – and the Australian Public Service; in particular, the Department of the Prime Minister and Cabinet.

According to the APS Commission’s excellent APS Employee Database, out of the total 133,952 “ongoing” (permanent) federal public servants at June 30, a total of 51,752, or 38.6%, have been employed in the APS for fewer than 10 years.

At a conservative estimate, this means around a third of the APS has only worked there since the 2013 election, serving only under the coalition government and its three prime ministers. You’d expect the numbers to be heavily loaded up to and including APS6 level classifications, but not exclusively so. And let’s not forget the “non-ongoing” and contract staff who aren’t included.

All federal public servants are legally obliged to be politically impartial professionally under the Public Service Act. So it is always worth monitoring one’s own political bias, conscious or unconscious, to check whether it bleeds into the workplace. As a federal election approaches this can become a matter of survival.

And if, as a rising public servant, you are going to throw your lot in career-wise with a department secretary who is probably the most partisan appointee in federal history, beware just how supine and even uncooperative your behaviour is, or can seem, when appearing before parliamentary committees. You never know who is watching and perception, as they say, is reality.

The Senate Finance and Public Administration committee is inquiring into the unfortunate COAG Legislation Reform Bill 2021 whose Schedule 3 seeks to overturn the Administrative Appeals Tribunal of Australia’s decision of August 5 in Patrick and Secretary, Department of Prime Minister and Cabinet (Freedom of Information) [2021].

As reported, federal court judge Richard White found the so-called national cabinet is not a committee of the federal cabinet and, as such, does not enjoy automatic exemption from the FOI Act; nor can its proceedings be exempted as a class by arguing that disclosure would, or could reasonably be expected to, damage federal-state relations.

The COAG bill simply reasserts that the national cabinet is a committee of federal cabinet, which essentially means it is thumbing its nose at the tribunal.

At its public hearing on September 27, under questioning from South Australian independent Senator Rex Patrick (the appellant in the case), NSW Labor senator Tim Ayres and Queensland Greens senator Larissa Waters, every witness except for the PM&C officials was scathing about the bill.None was more so than one of Australia’s foremost constitutional experts, Sydney University’s Professor Ann Twomey, who cited four principle grounds in objection – that  Schedule 3 defied the facts and would bring the law into disrepute; that it would undermine the federal system; undermine the principle of responsible government; and reduce government accountability and transparency.She said in her submission:

“While Parliament can enact a law that asserts things that are not true, it is unwise to do so as it brings the law into disrepute and damages public confidence in the law. Parliament could legislate to state that the earth is flat or that the moon is a ball of green cheese, but such legislation would not make it so. It would, however, cause the public to treat the law with contempt and would have the likely effect of spreading distrust about other laws.

“It is worse when the law has particular consequences that are inappropriate due to the gap between the law and the truth. For example, if the Parliament legislated to state that the earth is flat, and this then caused Australian laws to operate in such a way as to distort geographical measurements, it could have serious ramifications for property boundaries and the ability of ships and planes to navigate, etc. In short, it would be foolish and a potentially damaging exercise.

“The same can be said of legislating to state that the national cabinet is a committee of the commonwealth cabinet, when plainly it is not.”

Similar views were expressed in all the expert submissions and by the witnesses who teased out many undesirable consequences of the schedule. The consensus was that it was not only likely to be unconstitutional but also offended the government’s commitment to the Open Government Partnership and article 19 of the International Covenant on Civil and Political Rights.

Couldn’t the coalition rustle up even one expert in defence of its own bill?

Either not, or it simply didn’t bother.

Even the chair, Tasmanian Liberal senator Claire Chandler, didn’t mount a hot defence, as she could have attempted. As a good chairperson, perhaps she didn’t want to look like a flat-earther.

Naturally, PM&C secretary Phil Gaetjens, the respondent in the AAT case that the government lost so comprehensively and has not appealed, did not turn up (he was said to be travelling) nor offer another date on which he would appear.

Neither did a deputy secretary show up. This left the trio of PM&C first assistant secretaries – Leonie McGregor, John Reid and Lee Steel – clinging to the figleaf that the national cabinet really is a committee of the federal cabinet, despite all the evidence to the contrary.

In both its submission and evidence, including when asked about the many FOI requests for national cabinet documents that have been lodged since the AAT decision, PM&C stuck to the line that, “The decision of the AAT is not considered to have precedential force beyond the facts and documents before it.” Mr Reid said, “That’s simply a statement of the law in relation to AAT jurisprudence.”

And that is how PM&C had also advised its own FOI decision makers, the committee heard.“Certainly the instruction—it’s actually from within my area of the department—to FOI decision-makers around the department is that every application must be dealt with on a case-by-case basis …. I’m not sure that I can point my finger to instructions that have been provided to the department. I can certainly say that, in conversations I’ve had with FOI decision-makers, I have made the point that Deputy President White’s decision applies only to the documents and the facts that were before him.”

Well, yes, each case must be examined, and in administrative law there is no formal doctrine of precedent and a decision of the AAT can’t bind a higher court.

However, it would be unusual if members of the AAT did not follow the earlier decision of the tribunal, unless they were satisfied that it was manifestly wrong which, in this case, would be difficult given how comprehensively His Honour argued the case.

Is PM&C seriously implying that the question of the national cabinet being a cabinet committee must be retried every time an FOI application goes before the department, is rejected and goes on to the Office of the Australian Information Commissioner and thence to the AAT, without reference to the Patrick decision?

Perhaps they’re just looking to filibuster the many FOI applications for national cabinet documents which, interestingly, include one from Opposition leader, Anthony Albanese, who might well be the PM by May next year.Meanwhile, the department’s bottom line remains, as Mr Reid said, that the bill was simply “doing no more than making good on the decision of the Prime Minister earlier in 2020 that the national cabinet be established as a committee of cabinet.”

The earth really is flat and the moon is made of green cheese. You’d better believe it.


It’s revenge time, as Morrison strikes back over AAT’s national cabinet decision

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