The last two major independent reviews of the whole of Commonwealth administration – the Coombs royal commission and the Reid review – reported in 1976 and 1983. It's been a long time between drinks.
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The Ahead of the Game report in 2010 was directed by the Department of the Prime Minister and Cabinet's then secretary, Terry Moran, who was helped by six people from within the system and three from outside. That is, it was not an independent exercise and then prime minister Julia Gillard short-sightedly thwarted the implementation of some of its recommendations by cutting off the necessary funding.
In the past 40 years or so, there have been many reports on aspects of overall administration and on individual agencies. Some have been good, some average and many staggeringly incompetent and damaging.
A lot has changed since the Coombs inquiry, for example:
- The number of staff employed in the public service proper (that is, those agencies covered by the Public Service Act) has been reduced by more than 100,000 and its functions have become narrower and less complex.
- Some large organisations have been privatised (the Commonwealth Bank, Qantas, defence factories and dockyards), others have been "corporatised" but remain Commonwealth bodies, and a great range of functions has been outsourced while many others have been abolished.
- The devolution of management powers that began in the early 1960s has continued almost to the point of exhaustion. While this has brought many benefits, it often added to costs and has weakened central agencies' capacity to deal effectively with matters affecting the administration as a whole.
- Technology continues to greatly affect government agencies, however, while the Commonwealth almost certainly led the country in the use of large-scale computers during the 1960s, it may well now be a laggard in the so-called "digital age".
- At least since the major administrative law changes of the 1970s and the contemporaneous expansion on the operation of parliamentary committees, the operation of government agencies has become much more open to public scrutiny, questioning and criticism.
- The number of ministerial staff has grown along with their influence. As a consequence, public service policy advising may well have lost some of its intimacy and effectiveness, and levels of trust between ministers and permanent officials may have suffered.
There's much to be said in favour of the Commonwealth's administration. In the past 40 years, it has become more efficient (although some parts may be better than others), staffing is fairer as the number of women in senior positions has significantly increased, and, on the whole, the system is more open and accountable.
On the other hand, there would seem to be a good deal to be said against it. There's no need to make a list here as failings big and small have got more than a reasonable run in the pages of The Canberra Times in the past few years.
Notwithstanding the efforts of Finance Minister Mathias Cormann, it's hard to be confident about the will at ministerial level to improve the structure and operation of the administrative system as a whole. It's also difficult to be confident about senior officials taking this task on. The recent record is unimpressive; the Secretaries Board is too unwieldy (nay, not "agile" enough) and it does not represent non-Public Service Act agencies; PM&C secretary Martin Parkinson is likely to be too busy with other things; and the Public Service Commission lacks power. The Finance Department has, in a sense, done its bit with the new financial management legislation; though its talk of "reform" is too often seen, however unfairly, as code for more cuts.
For all the difficulties it would involve, the time may have come, after all these years, for another independent, expert inquiry into the present competence of the totality of Commonwealth administration and the appropriateness of its structure, distribution of powers and its operating procedures. Such an inquiry would perhaps better not be a royal commission but it should be composed of people with proven expertise in the field, be vested with adequate powers of investigation, not be wholly or even significantly reliant on support staff from the administration, have its own research capacity and be given as much time and resources as necessary to tackle to task effectively.
If there's a case for a royal commission into the banking industry for the difficulties it has caused its customers, there's likely to be an equally good case for an inquiry into Commonwealth public administration for some of the recent strife it's caused for citizens.
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The remainder of this column deals with arcane administrative trivia at the highest level of executive government in the Commonwealth; those likely to be offended by such material should look away now.
In early February, the Governor-General's website reported that our vice-regal representative, Sir Peter Cosgrove, had "hosted a ceremony at which" he'd "issued the affirmation of office for the first assistant secretary of the cabinet division of the Department of the Prime Minister and Cabinet".
As alert readers of the Informant will know, the requirement to take an oath or affirmation of loyalty to the Crown before appointment to the public service was removed from the Public Service Act in 1973. It was probably borrowed from British practice and had always been of dubious value. Frightful traitors such as Kim Philby, Guy Burgess, Donald McLean and Anthony Blunt are likely to have made similar oaths or affirmations. By 1973 in Australia, the provision had also become anachronistic – as a dictionary has it, well and truly "out of harmony with its period".
Under section 62 of the constitution, members of the Federal Executive Council are sworn in presumably in accordance with the oath or affirmation specified in the constitution's schedule.
So what's Cosgrove doing issuing an affirmation of office to the first assistant secretary of PM&C's cabinet division?
In reply to a question about the nature of the affirmation, its purpose and legal basis, Cosgrove's official secretary explained that the affirmation was "for the Executive Council. The Executive Council secretary swears not to disclose the confidential deliberations of the Federal Executive Council which they become aware of in the course of their employment." For further information, the official secretary suggested approaching the council secretariat in PM&C.
The secretariat was most forthcoming. It said:
- The wording of the affirmation is: "I [name] do solemnly and sincerely affirm and declare that I will not disclose the confidential deliberations of the Federal Executive Council of which I become aware in the course of my employment."
- "There is no legal requirement ... to make an affirmation ... The Australian Government Solicitor ... in May 2003 advised that public servants are bound by statutory secrecy provisions, including section 70 of the Crimes Act, not to disclose the confidential deliberations of the Federal Executive Council ... and that while there was no necessity to make an affirmation, it would evidence the duty of confidentiality that already exists."
- The affirmation was introduced in 2003 at the request of the then administrator, Sir Guy Green (then the governor of Tasmania), and the practice has been maintained by subsequent sovernors-general.
- Under procedures agreed with the governor-general, all PM&C officers who attend Executive Council meetings are required to make the affirmation.
- As the "practice is a convention, rather than a legal requirement, if an officer declined to give an affirmation there would be a process of discussion with Government House".
So the mystery of the Governor-General's notification of February 9 can be explained.
What's to be made of it?
The Federal Executive Council's operation is comprehensively detailed in the Federal Executive Council Handbook. It is an excellent model of its kind and is available on PM&C's website. The council's business is principally concerned with proclamations of various kinds, the approval of delegated legislation, various appointments (including to statutory positions, courts and diplomatic posts), the commissioning of Australian Defence Force officers, changes to the Administrative Arrangements Order, compulsory land acquisitions, grants of land to Indigenous Australians and the issuing of writs for elections.
Papers for the council consist of a brief minute recommending the action to be taken, an explanatory memorandum of no more than two pages setting out the legal basis and the reason for the action to be taken, and a formal instrument to be signed.
Apart from the issuing of writs for elections, where a governor-general may ask an awkward question or two about the calling of an early one, the council typically deals with tedious, uncontroversial matters of administration. Indeed, little would be imperilled if its meetings were open to the public and held in Garema Place. It's hard to imagine a reason why almost all the papers for the council should not be routinely published.
The Executive Council's proceedings are nowhere near as sensitive (and therefore should warrant a lower standard of protection) than those of cabinet, the boards of statutory authorities and internal deliberations within departments where, for example, options about controversial policies are discussed. Yet officials attending council meetings are more restricted than those attending cabinet. All officials are subject to the confidentiality provisions of the public service and crimes acts, while those toddling along to council meetings are additionally required to make an affirmation of dubious value and without a legal basis.
What appears to have happened is that, when acting as governor-general, a Tasmanian governor has introduced a habit from his state's administration and it's stuck as a pointless encrustation in the Commonwealth. Going back to the days of an early governor, "Mad Tom" Davey, Tasmania has had one of the most inept, secretive and unaccountable governments in the land, and few administrative habits from the Apple Isle would be worth others adopting. (Those in any doubt about the profound inadequacies of Tasmanian governance should consult James Boyce's recent fine book, Losing Streak: How Tasmania was gamed by the gambling industry, published by Redback.)
More to the point, the needless application of an affirmation to public servants attending Executive Council meetings should be meat and drink to that avowed arch-enemy of regulation, Public Service Commissioner John Lloyd. Here's a chance for him to scrape yet another barnacle from the public service ship of state. As a first step, he might have a quiet word in the shell-like of PM&C's secretary, Parkinson, who could then offer Cosgrove an opportunity to rid himself of the kind of useless protocol and ceremony he's bound to abhor.
Winners all round and a round of drinks in celebration. As the TV ad has it: "A hard-earned thirst needs a big cold beer and the best cold beer is Vic – Victoria Bitter."
Paddy Gourley is a former senior public servant. pdg@home.netspeed.com.au
