Picking a replacement for John Lloyd won’t be simple in this perfect storm

The Public Service Commissioner’s job is far, far more than just being a gatekeeper for agency bargaining, writes Verona Burgess. The government may want to rewrite the rules to better fit the leadership required of it.

So there is going to be a new Australian Public Service Commissioner, now that John Lloyd has announced he will depart in August.

Mystery still surrounds the non-existent inquiry that the acting Merit Protection Commissioner, Mark Davidson, isn’t holding into Lloyd, including what advice the (so far unnamed) former department secretary gave him.  Imaginations are running riot around Canberra.

The Opposition might try to winkle out the details at the October Senate estimates but by then all protagonists may well have moved on and there’ll be “nothing to see here”. For a start, Davidson will be replaced on June 25 by minister Kelly O’Dwyer’s new appointee, APS-outsider Linda Waugh, six months after Annwyn Godwin moved on to head the new Parliamentary Expenses Authority.

When Lloyd was appointed, the then minister assisting the prime minister for the public service, Eric Abetz, simply phoned him and offered him the job.  Bizarre as that may seem, it was entirely lawful.

Section 45 of the Public Service Act 1999 simply says, “The commissioner is to be appointed by the Governor-General on a full-time basis for a period of up to 5 years specified in the instrument of appointment.” (Section 52 says the same for a Merit Protection Commissioner).

In the case of the Waugh appointment a panel was convened, chaired by Lloyd.

Imagine if, just for once, the GG were to say, “I’m not signing that. It’s a shocking appointment,” but of course that would not happen. Off with his head.

The great irony is that Abetz’s method flies in the face of the public service values and employment principles that the Public Service Commissioner is responsible for inculcating into the entire APS.

Section 10 of the Public Service Act 1999 is all about the values and employment principles, not least the foundation stone of the public service: that decisions relating to engagement and promotion are based on merit.

In case you don’t know what that means in this modern world of fake news, alternate truths and cronyism, 10(2) explains that such decisions are based on merit if:

(a)  all eligible members of the community were given a reasonable opportunity to apply to perform the relevant duties; and

(b)  an assessment is made of the relative suitability of the candidates to perform the relevant duties, using a competitive selection process; and

(c)  the assessment is based on the relationship between the candidates’ work‑related qualities and the work‑related qualities genuinely required to perform the relevant duties; and

(d)  the assessment focuses on the relative capacity of the candidates to achieve outcomes related to the relevant duties; and

(e)  the assessment is the primary consideration in making the decision.

Those criteria apply to everyone employed by an agency head, except in a Section 39 ministerial choice of someone (think former politicians) as a head of mission.

But no part of section 10 (2) applies to the appointment of the commissioners.

As far as we know, there has never been an open competition to fill the role of Public Service Commissioner, let alone an independent selection panel.

But maybe there should be. Perhaps a panel of elders with deep public service experience (let’s say a former commissioner, a former department secretary and a former senior agency head) ought to report to the secretary of the Department of the Prime Minister and Cabinet, with a recommendation or three. If the government appoints someone else, it would have to table a statement in Parliament explaining why.

Clearly, the parliament never contemplated a circumstance such as we have just seen evolve with Lloyd. In some senses, it has been a perfect storm given the government’s harsh 2014 bargaining policy.

The Public Service Commissioner has a formidable range of powers over APS professional matters, including to issue directions; hold inquiries; report on agency capabilities; review any matter relating to the APS; ensure agency compliance with the code of conduct; drive workplace management policy; take the lead on learning and development; report on the state of the service and many more. Those powers are spelt out in sections 41, 41A, 41B, 41C, 41D, 42, 43 and 44. Section 41 alone lists 21 functions. The job is far, far more than just being a gatekeeper for agency bargaining.

Under section 64, the commissioner also sits at the top table – the Secretaries’ Board. And section 41(2)(g) enjoins him or her “to partner with secretaries in the stewardship of the APS.”

Then there is section 58, whereby the commissioner reports to the PM on appointing a secretary to PM&C; and, for other secretarial vacancies, is consulted by the secretary of PM&C (if the two disagree, the PM&C secretary must explain why).

The relationship between the two is not spelt out. But if they get on very well (think Ian Watt and Steve Sedgwick), the commissioner can help ease the heavy load of the secretary of PM&C, without compromising his or her statutory independence.

To be effective, the commissioner must command the respect of the cadre of secretaries, which is why former APS secretaries tend to have the strongest credentials for the job. They have walked in those shoes.

Governments should never have to worry about what the commissioner does. He or she ought to be – and be seen to be – the ultimate impartial, non-partisan embodiment of the spirit of the Public Service Act.

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