Questions continue to swirl around John Lloyd, merit and how APS review will seek truth

By Verona Burgess

Wednesday May 23, 2018

It came down to smoke and mirrors — or all went up in smoke — but there was a real issue of merit and independence behind Labor’s Lloyd attack, says Verona Burgess.

Senate estimates committees did a certain amount of colouring outside the lines in the first few days of hearings.

Two days of questions about whether there was an investigation into the Australian Public Service Commissioner, John Lloyd, crashed to a halt on Tuesday – but not without ramifications.

At about 5.30pm, the chair of the Senate finance and public administration committee, Victorian Liberal Senator James Paterson, read a letter from Lloyd (who had on Monday refused to answer a series of questions) finally confirming there was no investigation.

If there were one, it would have been into whether he’d breached the code of conduct in his work-based emails with John Roskam, his friend and former colleague at the right-wing Institute of Public Affairs.

To recap, the suggestion had arisen in a legal response by the Department of the Prime Minister and Cabinet to a Freedom of Information request.

The request had referred to several media articles, including this by the ANU’s Emeritus Professor Richard Mulgan.

In refusing to release two documents, PM&C Assistant Secretary Peter Rush had quoted Section 37(1)(a) of the FOI Act that says, “…disclosure would, or could reasonably be expected to, prejudice the conduct of an investigation of a breach, or possible breach, of the law …”

The opposition had seized on it.

Eating into APSC’s impartiality

But it was not entirely a furphy. PM&C deputy secretary Stephanie Foster confirmed that an allegation about Lloyd had been made to PM&C secretary Martin Parkinson on December 13, 2017 (she wouldn’t say by whom) who had referred it to the Merit Protection Commissioner on January 11. She did not know whether an investigation was underway.

One of the commissioner’s functions under the Public Service Act is to inquire into alleged breaches of the code of conduct by the public service commissioner, and report to the presiding officers on the results.

“Mark Davidson comes from the APSC … what might happen if he were to investigate his own real-life boss and then return to the APSC.”

But while the MPC is an independent statutory officer, the office is staffed by people from the APSC.

And since Annwyn Godwin’s appointment finished on December 31, the acting commissioner, Mark Davidson, comes from the APSC – which raised an edgy point about what might happen if he were to investigate his own real-life boss and then return to the APSC.

The acting MPC is usually drawn from the APSC but it would be better to second him or her from elsewhere. In any case, it’s high time the job was filled – five months is verging on carelessness.

Appointment on merit is the foundation stone of the modern Westminster system of public service after the 1854 Northcote-Trevelyan report.

Without it, you can give away the entire game of having an impartial bureaucracy serving the government of the day. You may as well just hand Treasury to the banks and employment policy to big business or the unions.

The appointment of Lloyd himself, via a telephone call from the then public-service minister Eric Abetz in 2014, has eaten into the public service’s faith in the APSC’s impartiality, even though Lloyd has always maintained his links with the IPA and the H.R. Nicholls Society, and previous roles, including as Australian Building and Construction Commissioner, do not prejudice his ability to do the job.

The government’s long-running battle with the unions in the last round of enterprise bargaining, overseen by the APSC since 1999, has inflamed the situation although ironically there’s no evidence that Lloyd is personally a huge fan of the policy.

Lloyd has also taken a lot of criticism, verging on verbal abuse, from Labor senators. There would seem to be zero chance of that relationship surviving a change of government.

Indemnities could make or break APS review

Which brings us to the APS review taskforce, as it is now known, and its newly appointed head, PM&C deputy secretary David Williamson, who was called to answer some Dorothy Dixers from Paterson on Tuesday.

Williamson has come across from Agriculture where he’s been a deputy secretary for two years. Joining the APS in 2000 as a graduate, he had a meteoric four-year rise to the Senior Executive Service. It’s his second time at PM&C, where he led the Northern Australia white paper taskforce from 2013-16. Previously, he was a first assistant secretary in Infrastructure.

Williamson said the review had come about after Parkinson recommended it to the PM, with Innovation and Science Australia’s Australia 2030 report having also recommended it.

The $9.8 million budget comes from an underspend on the ASEAN-Australia summit; contracts are still being drawn up for paying the panel; the review will consult widely in the APS, in academia and civil society here and overseas; it will invite submissions, set up a range of engagement and consultation tools and be open about and revisit its progress as it goes.  Participating public servants should not be afraid of retribution.

The FAS supporting Williamson is Mary Wiley-Smith. If her name rings a bell, it’s because she was a pivotal witness in the Royal Commission into the Home Insulation Program. As such, she must know a thing or two about speaking truth to power, albeit with the protections of a royal commission.

We are still to learn what, if any, protections and indemnities will be offered to witnesses in the APS review. This factor alone could make or break its ability to get to the heart of what is needed for the public service of the future.

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