Unconventional order sends public sector apolitical convention to life support

By Harley Dennett

Wednesday September 5, 2018

Accusations that threaten the reputation of an apolitical public sector have again been levelled at the Victorian government after internal deliberations of the previous government were put on the public record without the consent of the then ministers.

Updated: The Mandarin has now seen a copy of the letter in question and has corrected several misleading details that originated from earlier reports. Details at the bottom of the story.

Explosive revelations have appeared in the Victorian media this week quoting notes and correspondence of opposition leader Matthew Guy’s days as the planning minister in the previous Liberal-National Napthine government.

The money quote from Guy, ignoring the advice of the Victorian Government Solicitor on July 19, 2013, supposedly reveals he wasted potentially millions in taxpayers money on an unnecessary payout in the Ventnor case:

“This can’t go to court. I shall not be in the job if it goes to court … This may be winnable at law, but this is a political fight and it is unwinnable.”

Those attacks continued today, noting discrepancies between the contents of an email from a deputy secretary and the public response from Guy to yesterday’s media coverage.

It follows an earlier clash in which an unredacted document containing the full names of former Napthine government staffers and their salaries was leaked to the media — sparking an inquiry that is still underway.

The latest details were revealed in part from documents tabled in the Victoria parliament this week, and specifically highlighted in a government media release.

Breach of the convention was ‘legally required’

The release breaches the convention common across Westminster-based political systems in which files of previous governments are kept secret from the present government.

The moment when normal political decision-making turned decidedly unconventional occurred earlier this year according to the account contained in a letter from the secretary of the Department of Premier and Cabinet, Chris Eccles, to Guy that advised he would be providing files of the previous government to the current government, and against the convention, he was not seeking consent to do so.

What sparked this extraordinary letter was two specific but separate directions:

  • A motion in parliament on March 29 to produce documents relating to various cases involving the previous government; and
  • A direction from the Premier Dan Andrews to produce to him all documents relating to the above motion.

It was the latter that took precedence. In the letter to Guy, Eccles explains:

“In those circumstances, we were each legally required to comply with the Premier’s direction, which had the effect of overriding other obligations we owed to the State and any applicable Victorian constitutional conventions. Complying with those directions was also consistent with our responsibilities under the Code of Conduct for Public Sector Employees. A failure to do so would have jeopardised our compliance with our obligations under the Code of Conduct.”

Two other statutory officials were in the same conundrum: John Bradley, the secretary of DEWLP, and Marlo Baragwanath, the Victorian Government Solicitor.

In July this year it was revealed that the state opposition was considering making a formal complaint against at least two of these statutory officials relating to compliance of these requests.

Eccles: responsive service is corollary to apolitical obligation

In what was turbulent times for the public sector when he arrived in Victoria to lead its public sector as head of Premier and Cabinet, Eccles has been vocal about the values required of the sector. It had been though a series of governments of relatively short lengths, and was in the process of a renaissance as it rethought what better government looked like, including the role of central agencies, open government, and outcomes focussed delivery of services.

But Eccles has also had to deal with agencies and statutory officials in the sector who have not been as keen on being responsive to the government of the day.

A speech Eccles gave on proper free and frank advice offered a pointed reference to disagreement within the sector on the nature of an apolitical public sector. It was later revealed to be a dispute with the Victorian Auditor-General’s Office over when officials should push back against their ministers’ directions.

A strongly-worded letter was later put on the record that articulates in detail how Eccles views the obligations of a public servant:

“Since the earliest articulation of a professional, apolitical public service in the 1850s, the role of the public service has been to serve, and act as an instrument of, the government of the day, subordinate to the Ministers that it serves. Ministers are responsible to Parliament, and through Parliament to the people, for their decisions and actions, as well as those of their departments. Implementing government policies goes beyond a public sector value; it is the principle reason why the public service exists. …

“The obligation to provide frank and impartial advice is a corollary of the core role of the public service to serve the government of the day. The public service must remain apolitical so that it is able to serve successive governments of different political persuasions. …

“For a public servant to hinder progress to implement a lawful decision, constantly recontest that decision, or refrain from actions that follow from a lawful decision of a Minister, would be to fundamentally undermine the Victorian Public Service as a trusted and apolitical institution, undermine the integrity of our democracy, and erode longstanding conventions that are at the heart of the Westminster system of government.”

Top photo: Victorian Leader of the Opposition Matthew Guy is seen outside the Legislative Assembly on Tuesday. AAP Image/Stefan Postles.

Update: The original story, and the reports it followed, referred only to the parliamentary motion rather than the Premier’s direction. The story has been updated to correctly make the distinction, and ensure the origin of the breach of the convention resulting from the Premier’s direction is more clearly understood.

Additional incorrect information about the leak of salaries of former government staffers have been removed. More details on the background and current status of that leak inquiry will come shortly.

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