Following orders no excuse, support needed for public servants

By David Donaldson

June 22, 2015

If people smugglers were paid to return to Indonesia and if this activity were found to be illegal, following ministerial instruction would not be a valid excuse, say public sector corruption and accountability academics.

“‘I was following orders’ is never an excuse” for illegal activity, argues Queensland University of Technology Associate Professor Mark Lauchs.

“The CCC [Crime and Corruption Commission] or ICAC [Independent Commission Against Corruption] are never going to care, nor will a judge or jury,” the former head of the ethics and integrity unit at the Queensland Public Service Commission told The Mandarin.

There has been controversy in recent days following claims Australian officials gave money to people smugglers to turn back their boats.

“The Criminal Code in Australia makes clear that any payments to a people smuggler to take people from one place to a foreign country is an act of people smuggling,” Professor Don Rothwell told the ABC on Tuesday.

“So at face value, if the reports are true, there is a violation of the Commonwealth Criminal Code”, Rothwell said.

Lauchs acknowledges that in this case it’s “all very confusing” as to what occurred and whether laws were broken as “it’s not really clear who was making the payments”. If you are asked to do something illegal as a public servant, “you just have to refuse”, he explains.

“You may have to leave your job, but would you rather spend time in prison?”

But most of the time it shouldn’t have to come to this — usually raising the issue with your supervisor should be enough. Sometimes issues of legality arise through “innocent ignorance from head office”, he adds.

Those giving instruction don’t always realise the full implications of what they’re asking. Often “the people on the frontline know best” about the practical implementation of instructions and may be able to alert the centre of any issues.

“Often they don’t ask, and they sit there and stew on it and become a whistleblower. Speak to your supervisor. At least then you have a piece of paper,” thinks Lauchs.

“Use your own smarts. Don’t sit there and wallow in it.”

“The whistleblower is often the real bearer of the results of other unethical or corrupt actions.”

The principle of raising concerns as informally as possible also applies to those with ethical qualms. Most managers will be understanding of clashing ethics and will try to find different work to do.

One example he gives is from when he worked in the Department of Justice.

“We got to the end of a meeting and the chair asked if anyone had any questions. Someone raised their hand and asked ‘are you going to write to the director-general to say you’re not going to be on that selection panel because of a conflict of interest? I can help you write it if you like.’

“It can be that simple and save a scandal later.”

‘Public servants need more support’

On the ground it can be difficult for public servants to raise concerns, argues QUT ethics academic Associate Professor Sharon Hayes.

“It’s a tough question because public servants work according to a code of conduct. It tells them they can’t do anything illegal, but it also tells them they have to be committed to the government.

“Commitment to the government is one principle, integrity another. So it’s a hard one for employees. Governments tend to work in a utilitarian way, where the end justifies the means, so there can be problems,” she says.

“You might be threatened with losing your job. While there is an obligation to report, it doesn’t happen very often.”

Hayes thinks the example of paying people smugglers appears to be “straightforwardly illegal”.

“The way governments convince public servants to act illegally is to say it’s for the public good. That’s what Tony Abbott is saying, anything to get the people to go back regardless. That’s highly illegal and unethical.”

When public servants do report wrongdoing, they often end up being punished by colleagues.

“You are obliged to report unethical activity. If you don’t report it, you may be guilty of colluding,” she argues.

“But the experience has been that when people blow the whistle they usually suffer for it. Especially if you’re blowing the whistle on a senior person, it can be very hard. You might be threatened with losing your job. While there is an obligation to report, it doesn’t happen very often.”

And while there are protections for whistleblowers against poor treatment in the workplace, “it’s hard to prove in court things like ostracism in workplace, for example through not being promoted or being given demeaning work. Even workplace bullying is very hard to prove in court.

“You can understand why it’s difficult for people when considering blowing the whistle.”

There needs to be better support for public servants facing ethical problems, says Curtin Business School public sector governance expert Professor David Gilchrist.

“There should be a structure to deal with this kind of problem”, he argues.

“Political ramifications are often borne by the DG or the bureaucrats, not by the political head. But the power is generally the political head. That places the public servants in a very poor position.”

“If there is cash involved … it should be investigated to the point of exhaustion and recognised that it should not happen again.”

While at the federal level the Public Sector Commission offers an ethics advisory service, Gilchrist thinks it could be improved.

“The service needs to be confidential, focused on supporting people reporting in when there does seem to be an ethical or corruption issue and needs to be more welcoming of reports rather than clinical as it is at the moment,” he thinks.

“The service needs to support and encourage courageous people in reporting unethical behaviour. However, I think it is fair to say that, in Australia, the whistleblower is often the real bearer of the results of other unethical or corrupt actions.”

Gilchrist thinks the government should investigate the claims that people smugglers were paid.

“It needs to be investigated. I don’t think it’s terribly hard to investigate. If there is cash involved there would be records in navy or coast guard. It should be investigated to the point of exhaustion and recognised that it should not happen again. One of the things about these sorts of scandals is that public servants and politicians will learn and do it differently next time.”

Strengthen Integrity Commissioners

Adopting Queensland’s Integrity Commission model to other jurisdictions would help improve support for senior public servants and politicians facing ethical and integrity questions, Lauchs suggests.

Until the Integrity Act 2009 came into force, they could only ask for advice about conflict of interest issues. They may now ask for advice about any ethics or integrity issue, including a conflict of interest issue. The whole process is confidential.

The commissioner can give “absolution from being sued” to those who request and then follow his advice, whereas similar offices in other states play only an advisory or investigative role, says Lauchs.

“I think everyone should have that. A lot of reporters hate it because everything is kept strictly confidential.

“But if he solves 12 major scandals per year, which would have each cost a million dollars, that’s an excellent preventative process.”

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