A warning: this article is crammed with conflicts of interest. Fortunately, they are readily apparent, so you can judge for yourself any bias in my words. I am writing about a spat between a colleague and a government agency head. Disputes between journalists and senior officials are not unusual; they are part of (semi-) public life. But this one highlights some extraordinary protections enjoyed by public servants in Parliament, which I will get to shortly.
First, the detail. About three months ago, The Australian newspaper published an opinion piece by Immigration Minister Scott Morrison, in which he foreshadowed the creation of the Australian Border Force. That morning, Customs chief executive Michael Pezzullo alerted his staff to the article and related news reports, saying Morrison would provide more detail in a speech that afternoon. Pezzullo added: ''If you haven't yet read the minister's opinion in The Australian, I encourage you to do so.''
Shortly after Pezzullo's note was circulated, Fairfax Media websites published an article by Canberra Times reporter Noel Towell, which read: ''Public servants at Australia's Customs agency have been told by their boss to read a newspaper for details of the government's plans for sweeping changes to their workplaces.''
And therein lies the dispute. You may think it trivial but Customs media staff said Towell's article was ''misleading and inflammatory''. ''At no time would staff ... be directed to media as a sole source of information as media reporting can be, on occasion, contradictory and information interpreted incorrectly,'' one official wrote to Towell. (The article did not actually say the agency did this, though perhaps some readers assumed it. You can read the note to staff below and draw your own conclusions.)
What is clear is that Pezzullo advised staff to read Morrison's article; a sensible enough suggestion in my view. Yet he later seemed to deny this when quizzed about it during a Senate estimates hearing. Labor's Kim Carr asked if Towell's article was ''an accurate report of your remarks''. Pezzullo responded: ''No, not even remotely so. I would not treat my people like imbeciles. If the journalist had bothered to make a relevant inquiry, he would have seen that my staff message alerted all of my staff to the fact that a major announcement was going to be made that morning.''
Carr then asked Pezzullo if he had shared his views with Towell. The Customs chief's reaction was particularly surprising given his seniority. ''I would not bother,'' Pezzullo said. ''I do not want to personalise it but you get people who just have to be bottom feeders. That is what they do in life ... One of the great downsides to the rise of the internet - it has many upsides - is that you get all sorts of rubbish that does not need to be checked, does not need to be discussed with anyone and people can just put it out there. People ought to think about getting on with doing a real job.''
(Again, a reminder of Pezzullo's words: ''If you haven't yet read the minister's opinion in The Australian, I encourage you to do so.'')
At this point, the spat became something more. Customs has a website it uses to publicly correct misleading media reports. It is worth noting that Towell's article was deemed insufficiently significant to warrant a mention on that site. Yet it still managed to entice Pezzullo into publicly denigrating not only the article but Towell's very character.
Whether you call that abuse or ''straight talking'', it is unlawful for public servants in almost every context. The Public Service Act obliges bureaucrats to ''treat everyone with respect and courtesy, and without harassment''. This is especially so for agency heads such as Pezzullo, who must not only uphold the APS code of conduct but be exemplars of the behaviour expected of other staff. On this point, Pezzullo unquestionably failed.
Yet here is the oddity that arises from this dispute: because Pezzullo's words were part of his evidence to a parliamentary committee, he cannot be disciplined or disadvantaged in any way for saying them. Canberra Times editor James Joyce later asked Public Service Commissioner Steve Sedgwick to investigate whether Pezzullo's conduct was lawful and whether it set a good example for staff. Sedgwick replied that the Parliamentary Privileges Act prevented him ''from taking any such action''. A committee can act against a witness if it believes he or she misled it or otherwise thwarted its work. However, these parliamentary ''offences'' are far less clear than breaches of the APS code, and depend on the judgement of the relevant committee's members and also, potentially, the privileges committee.
And so emerges a remarkable feature of privilege. It is widely known that parliamentary witnesses cannot be sued for defamation. But when public servants enter a House to give evidence, they also step beyond the Public Service Act's reach. All those onerous obligations to ''behave honestly and with integrity'', to ''act with care and diligence'' and to ''treat everyone with respect and courtesy'' are jettisoned. When appearing before a committee, public servants can even ignore their usual legal duty to ''maintain appropriate confidentiality about dealings [they have] with any minister or minister's member of staff''.
It is a fascinating exemption, though in hindsight it is perhaps obvious: the constitution has always given Parliament and its powers primacy over statutory law, to prevent governments (and lawyers) from interfering with the legislature. Odgers' Australian Senate Practice describes it thus: ''The corollary of the great power over witnesses possessed by the Senate … is that witnesses possess extensive legal protection in respect of their cooperation with Senate inquiries.'' Yet as obvious as this immunity may seem, none of the senior public servants I have mentioned it to were aware of it.
Beyond the matter of whether public servants should be courteous, the protection of privilege poses a more serious question - and, again, Pezzullo is a useful example.
The APS code says public servants must ''avoid any conflict of interest (real or apparent) and disclose details of any material personal interest''. Yet, as with other statutory provisions, this does not apply to a public servant when appearing before a parliamentary committee.
Let's say an agency head has a relative who is employed in the same workplace, and that relative becomes suspected of corrupt activity. Clearly, the agency head would have a conflict of interest in dealing with the organisation's anti-corruption efforts.
That is the situation Pezzullo faced. His brother Fabio, who was a Customs employee, became a ''person of interest'' in investigations into alleged bribery and illegal drug imports. It emerged he was selling a generic form of viagra to fellow employees, and he later confessed to lying to the Australian Commission for Law Enforcement Integrity. He was sentenced in June this year.
From the start, Michael Pezzullo disclosed the conflict of interest to his minister, and was rightly kept at arm's length from the investigation. In February 2013, after some media reports alleged that a relative of Pezzullo's was embroiled, independent senator Nick Xenophon asked the Customs chief how any potential conflict would be managed. Attorney-General's Department secretary Roger Wilkins responded on Pezzullo's behalf, saying ''we are in the process of sorting out protocols for dealing with that type of situation''. When Xenophon asked to see the detail, Wilkins replied: ''I think the better idea is that I provide you, senator, with a briefing on it.''
That briefing never happened. Pezzullo continued to give evidence about Customs' anti-corruption campaign at later committee hearings, without the parliamentarians knowing of his brother's predicament. When they eventually found out in June this year, the committee's non-government senators were irritated, saying Pezzullo should have informed them. As Labor's Sam Dastyari put it: ''He should have given a full and frank account about his brother's criminal charges. This would have avoided any perception of a conflict of interest.''
Pezzullo did disclose the conflict to his minister. He perhaps also should have protected himself from claims of ethical shortcomings by telling the committee, too, what he knew. You can read his full explanation of his actions here. What is clear, though, is that this debate is solely about ethics, and not law. Because when Pezzullo stepped into that committee room to give evidence, he left his usual legal duty to disclose conflicts of interest behind, along with the rest of the Public Service Act's strictures.
There are other consequences of parliamentary privilege that I suspect most public servants have ignored entirely. For example, if a bureaucrat is particularly unimpressive when giving evidence - perhaps they are nervous, disorganised or regularly get their facts wrong - they cannot be disadvantaged as a result. So if an agency head was assessing that public servant's annual performance, or considering whether they deserved a bonus or promotion, those dud parliamentary appearances must not affect the agency head's decision. To reflect poorly on the appearances would be a potential contempt of Parliament.
◊ ◊ ◊ ◊ ◊
But let's return to where this began. Is it strictly necessary that public servants be polite and respectful to everyone at all times? I have long regarded this part of the APS code to be ridiculously onerous; it demands far too much of staff. It is also a beacon to vexatious litigants that helps to fuel many disputes.
This provision was not always going to be law: an early draft of the proposed code of conduct, published in the 1990s, made no mention of politeness or courtesy. Rather, it said public servants should deal ''equitably, honestly and responsively with the public''. And, surely, that is all we should expect.
A couple of years ago, Sedgwick was briefing media about the problem of workplace harassment, particularly the difficulties some public servants had in giving and receiving feedback. One reporter suggested that bureaucrats were overly frail and would not last 10 minutes in a newsroom. Sedgwick smiled, saying perhaps public servants set themselves higher standards than journalists.
He should mention that to Pezzullo, lest the Customs chief find himself thinking aloud outside Parliament. The courtesy obligation may be bizarre, but it is also law.
Michael Pezzullo's note to staff on May 9, 2014:
Colleagues. You may have seen this morning's media coverage about future border protection arrangements, and the establishment of a single operational border agency, the Australian Border Force.
The Immigration Minister, Scott Morrison, will deliver an address at the Lowy Institute in Sydney at 12.45pm today in respect to this. The address will be broadcast on the Australian Public Affairs Channel on Foxtel and ABC24.
If you haven't yet read the minister's opinion piece in The Australian, I encourage you to do so.
In short, the Australian Border Force will draw together the operational border, investigations, compliance, detention and enforcement functions of our service and the Department of Immigration and Border Protection. Policy, regulatory and corporate functions will combine within the broader department.
The changes demonstrate the government's continued commitment to increasing our national security operations, and indeed, build on our Blueprint for Reform, 2013-2018.
I will update officers immediately after the announcement, when more details information will be made available.