Emails between Public Service Commissioner John Lloyd and his former colleagues at the Institute of Public Affairs, as revealed under freedom of information law and discussed at a recent Senate estimates hearing, raise important questions of public service ethics. Was Lloyd, as he maintains, just engaging in innocuous banter with friends and providing already-available information in answer to legitimate public inquiry? Or was he, as critics say, in serious breach of his legal and ethical obligations?
The FOI disclosure was in response to a request for correspondence between the Public Service Commission and the institute, a right-wing think tank. It contains several email exchanges between Lloyd and institute members. Lloyd is a former director at the institute, where he remains a member and is obviously on friendly terms with many of its staff.
The relevant emails fall into two categories. The first, and apparently less damaging, contain gossip with fellow institute insiders; for example, referring to the Community and Public Sector Union's description of Lloyd as an "IPA pin-up boy". Lloyd also forwards a copy of a doorstop interview with Labor senator Penny Wong, who takes a swipe at the Abbott government's appointment of Lloyd and Tim Wilson, another former institute director. Presumably, friends at the institute would like to be reassured that it now has the inside track and is getting under Labor's skin.
At the estimates hearing, Lloyd excused these comments as being light-hearted in intent, designed to "relieve the tension" amid constant criticism from the union and others. His claim carries some weight. His former links with the institute are well-known and he naturally connects with old friends. The pressure to keep within the confines of expected Australian Public Service leadership-speak must be unbearable at times. All public servants need to sound off occasionally to trusted friends and family away from the straitjacket of bureaucratic correctness. Lloyd presumably had every expectation that his emails would remain confidential and would not be subject to FOI transparency. In effect, he seeks dispensation for remarks that were made off the record and meant only for close friends.
Fair enough, perhaps, except for the resounding contradiction with the position Lloyd himself and the commission have recently taken over public servants' use of social media. In that policy, public servants can be in breach of the code of conduct for comments on social media that undermine the impartiality or reputation of the government or the APS. This applies to comments made apparently in confidence and even extends to posts made by others. The commission was unwilling to give public servants any leeway for normal expectations of confidentiality, let alone for the desirability of "relieving tension". Moreover, as Lloyd insisted, the policy on social media applies more strictly the higher up one is on the bureaucratic ladder.
On these principles, Lloyd should have known that any work-based emails could be disclosed. He should also have considered whether his remarks, coming from someone in his position, would, if disclosed, contravene public service impartiality. Rank-and-file public servants can be forgiven for concluding there's one rule for them and another for the bosses.
The second category of emails is more potentially serious and consists of a 12-page document that Lloyd sent to an unnamed contact at the institute. He attached it to a message, saying: "As discussed, I attach a document that highlights some of the more generous agreement provisions applying to APS employees." "Hi John," came the reply, "Thank you for this − that is very handy."
Whether the original suggestion for help came from the institute or from Lloyd himself is unclear. But Lloyd's reply was certainly in response to a previous discussion between the two parties.
The document, presumably prepared in Lloyd's office, is a compilation largely based on existing documents, beginning with general comparisons of wage rates and superannuation arrangements in the public and private sectors. It then lists various entitlements taken from individual government agency agreements, covering matters such as leave, relocation on retirement and school-holiday care. It also quotes policies that are said to restrict flexible decision-making − for example, on moving location, changing working hours, changing rosters and the role of union delegates in agencies.
Though mostly standard cut-and-paste, the document also includes extra wording that sets a partisan tone, including the title itself ("Examples of 'soft' arrangements"), and use of pejorative adjectives such as "generous" and "extraordinarily lengthy". These tendentious editorial glosses give the lie to Lloyd's claim he was merely relaying available information to the institute as if it was any interested member of the public. They suggest the material was tailor-made to fit the institute's ideological slant and subsequently helped form the basis, without any acknowledgment, of an institute article and a submission to a Senate inquiry into workplace bargaining in the public sector. "Handy" indeed.
The incident raises echoes of former Commonwealth ombudsman Allan Asher, who was hounded from office after being discovered feeding questions for a senator to ask him in a committee hearing. Asher's case was politically more explosive, as it involved ammunition to be used against government policy (on asylum-seekers), whereas Lloyd was offering more general aid to one of the government's staunchest allies. Nonetheless, the two cases raise questions about the degree to which public officials should provide covert advice to partisan groups that are seeking to influence government policy.
Under the APS values and code of conduct, any public servant is obliged to meet requests from the public for information, so long as the information given is disclosable and accurate. At the same time, the Public Service Commission's advice on the values and code in practice counsels that public servants "should consider the use an enquirer may make of information sought". The ethical public servant would surely take care not to overstep the bounds of impartiality when dealing with a partisan organisation. He or she would not indicate endorsement for the organisation's policy preferences or direct the questioner towards information that would suit its cause.
Lloyd's behaviour crosses the line. He should have referred any request for partisan help to his minister's office.
All senior public servants are obliged under the Public Service Act to promote APS values, employment principles and the code of conduct "by personal example" as well as other appropriate means. Public service commissioners, in particular, have a statutory duty "to uphold high standards of integrity and conduct" and to "strengthen the professionalism of the APS", including, presumably, the value of impartiality, which is the cornerstone of an apolitical, professional public service.
These high expectations are reinforced by the commissioner's status as a statutory officer. Unlike departmental secretaries, who effectively serve at the prime minister's pleasure, the commissioner can only be removed by parliament and then only for serious wrongdoing. As with other independent statutory officers whose tenure is similarly protected, the purpose is to underline the political independence of the office-bearer and, by implication, his or her capacity to serve the government of the day, of whichever political stripe that government may be.
It is here that Lloyd's behaviour crosses the line. He should properly have referred any request for partisan help from the Institute of Public Affairs to his minister's office rather than answer it himself. No doubt, he saw, and still sees, his actions as legitimate and not worth fussing over. One can see his point of view. The exchange occurred over two years ago, in April 2015, when Tony Abbott, as prime minister, and Eric Abetz, as minister, were engaged in a holy war against the APS in general and the Community and Public Sector Union in particular. Lloyd had been appointed to spearhead the campaign. His institute background was seen as a positive qualification that would send a strong message to recalcitrant pubic servants. In this context, no one, least of all Lloyd himself, would have expected him to distance himself completely from the institute. It was, and remains, part of his brand.
From this perspective, responsibility for any breach of public service values lies less with Lloyd himself than with the ministers who appointed him. Placing someone of his background and known opinions in the position of public service commissioner was a deliberate affront to the principle of political impartiality, which the commissioner is supposed to protect. It reveals the depth of disrespect that many conservative politicians hold for the conventions of an apolitical public service.
Richard Mulgan is an emeritus professor at the Australian National University's Crawford school of public policy. email@example.com