- Stephen Bartos: freedom from mischief can trump FOI
- Richard Mulgan: can public servants be cautious risk-takers?
- The Shergold report: Learning from Failure
- The Public Sector Informant: latest issue
- More public service news
A former secretary of the Department of the Prime Minister and Cabinet, Professor Peter Shergold, wants to reorganise the public service along Hollywood lines. His script is contained in a report whose full title is Learning from failure: why large government policy initiatives have gone badly wrong in the past and how the chances of success can be improved in the future.
If it were to be used for a film, it would necessarily contain less of the good than the bad and the ugly, and it would be a B-grade production. Two stars out of five, perhaps.
The government commissioned the report in December 2014, presumably in the hope of squeezing some more political juice from the perceived failings of the home insulation program and the national broadband network cases. It was signed off to the Environment Minister, of all people, in August 2015 and seems only recently to have seen the light of day.
It was prepared with the help of a dozen or so public servants and on the basis of extensive consultations, although neither Shergold's predecessor nor successor as secretary of PM&C and head of the public service appear in the list of those spoken to. The document has been subject to no fewer than 10 "peer reviews", the benefits of which are unapparent.
Being based principally on the home insulation and NBN cases, this report is unbalanced. Lessons can be learned from the less-well done although successes are better teachers. If the government expected Shergold to accentuate the negative, he's delivered in spades. His report:
- allows, to use its words, "boundless enthusiasm" to limit careful analysis and a broader consideration of the Australian Public Service's experience;
- contains fine words about how best to go about policy advising and risk management but fails to heed its own advice;
- tendentiously distorts the truth about what it calls "traditional" government to show up more favourably its preference for an "adaptive" model; and
- spends too much time on a sideshow – refreshing the public service with secondments, interchange and temporary staffing from outside – and far too little on what should be the main gig: building up ongoing, resident, policy-advising and management capacity.
Shergold kicks off with a tour d'horizon of the ins and outs of good policy advising. It's sound stuff, including his stress on the desirability of an appropriate degree of confidentiality in the process. He says: "If confidentiality is not assured, public servants will be tempted to temper their advice and ministers will prefer to receive advice only orally." But Shergold leaps from that to say: "This conclusion is supported by an examination of the behaviours exhibited during the development of the [home insulation program]", that freedom of information laws are a "significant barrier" to sound policy advising, and that they consequently need tightening to provide greater protection for deliberative material.
Hold it, please. There's nothing in the Hangar royal commission report on the home insulation scheme or the review of that program conducted by Allan Hawke to suggest the FOI Act had any effect on the deliberative processes associated with related government decisions. Moreover, Hawke's review of the FOI Act – still not acted upon by that great champion of freedom, Attorney-General George Brandis – did not see a need to dilute existing FOI standards, apart from excluding incoming-government briefs from disclosure.
If the FOI Act had not existed, the insulation problems would not have been avoided, because they derived from a perceived need for haste, ministerial impatience and departmental inexperience in the task at hand. Yet Shergold accepts at face value self-serving whingeing from some officials that have dogged FOI laws from the word go. This trash talk should have no place in serious, fair-minded policy.
Shergold's report doesn't put the claims about FOI to any test. For example, there's no evidence he considered what proportion of the hundreds of bits of written advice provided each week to ministers has been subject to FOI requests and what proportion of those were successful. It would be surprising if it were any more than a tiny fraction of a tiny fraction of 1 per cent. That is, the prospects of disclosure are extremely low.
Further, did Shergold have his well-staffed team examine a random sample of, say, 500 examples of written policy advice to ministers to see if any of the alleged evil effects of the FOI Act could be detected? It would seem not.
Nor does his report consider how the remote prospects of disclosure might affect the motivation of public servants. He's not asked why they might temper their advice if, in the event of disclosure, they were to be shown dishing up lily-livered, incomplete and dissembling material that would make them look like dills, rather than stuff that was hot, strong and competent, in whose roseate glow they could bask. That is, at one level, it's possible the FOI Act works to improve policy advice.
Shergold's recommendations on FOI are based on hearsay. They avoid the facts and fall short of his admirable, if proverbial view, that "advice needs to be analytically rigorous, carefully balanced and unbiased". His suggestion that the public service commissioner issue an instruction to departmental secretaries, the legal basis for which is unclear, requiring them to put all substantive policy advice in writing brings us to the point where these lofty officials get to be treated as juveniles.
Shergold accepts at face value self-serving whingeing from some officials that have dogged FOI laws from the word go.
The FOI Act already has perfectly adequate protections for the deliberative processes of government and no further restrictions of citizens' freedoms are warranted.
Shergold is on firmer ground when he discusses risk management and project and program management. "It is essential that ministers clearly articulate their risk appetite to departments," he says. That's right. The better management of risk, for which there is scope, begins with ministers. The report says the Public Governance and Public Accountability Act is "a step towards developing better risk practice and culture", although it cruels its point by saying, in the same paragraph, that "legislation will not change culture". Come now: legislation is a powerful means of changing culture.
Anyway, Shergold's suggestion that cabinet submissions should be accompanied by risk-management plans and that risk should be taken more seriously and comprehensively are sensible, although the appointment of chief risk officers in departments is probably not as good as secretaries and line managers being primarily responsible.
Learning from Failure makes some sensible if hardly earth-shattering recommendations about project and program management – developing standards in consultation with the private sector, better training and recruitment. It's a pity, however, that such little attention is given to the vast APS experience of such matters, perhaps more than any other organisation in the country's history. In accentuating the negative, the broader lessons of experience are ignored. Thus, the report ends up with insubstantial recommendations leavened with unhelpful euphemisms, such as, for example, that project and program management "are best viewed as a continuum of complexity".
Shergold's chapter on "Opening up the APS" gets us to his Hollywood moment: the organising of work as Hollywood does to make motion pictures. Nowhere in this report is history more distorted and its lessons more neglected. From Richard Scotton and John Deeble and the design of health insurance, through the temporary employment of staff on large-scale building and construction, to the involvement of outside experts in the preparation of defence white papers, and oodles more, the proceedings of the APS have probably been more open than most private businesses. And much of this openness had a legislative base via the exemption and mobility provisions of the former Public Service Act and the Officers' Rights Declaration Act. Shergold's report doesn't mention these and it's unlikely he and his team of assistants examined their operation or considered why they fell by the wayside. On the one hand he urges learning from failures but doesn't do so himself. Needless to say, his recommendations about the greater use of outside assistance come without suggestions for a better legal basis on which this might be done.
In 1980, the former Public Service Board had signed up more than 30 private companies in a staff-interchange program with the APS. Many people took part. While Shergold now urges something similar, if more modest, there's again no indication he has studied the lessons of this history and the reasons why the old scheme withered on the vine.
To top off his unwillingness to practise what he preaches, Shergold's plan for a Hollywood-style public service comes without the kind of risk analysis he says should accompany policy proposals put to cabinet. He does not examine the risks that greater contracting out and more use of temporary employment and secondments pose to the APS's resident policy and management capacity. Instead, he suggests that a committee advise the Prime Minister on the public service, something the PM needs about as much as another hole in his head.
Shergold's report concludes with a rousing commendation of what he calls "adaptive government". Here, it's not sufficient to wrap the concept in wearying cliches. ("The public servant of the future will be a facilitator of innovation." "Being agile needs to be authorised." "Out of tragedy, let there be transformation.") No, no – a tendentious dialectic is necessary to paint the adaptive model as all good and traditional all bad. For example, it's said that, in traditional government, you "measure success on compliance", have "defensive risk management", "develop policy in isolation" and "retain information". In the adaptive model, you "focus on performance", have a "positive risk culture", "make it easier for outsiders to participate", and "share information" while, presumably, tightening up the FOI Act.
Such bare-faced caricatures have nothing to do with the real world and provide no satisfactory basis for policy.
It's said that the film Jaws was pivotal in establishing Hollywood's current "business model", notwithstanding that it greatly overshot its budget and failed to achieve its production schedule. A review of Jaws in The New Yorker magazine concluded by saying: "Don't bite."
The bullet could be bitten on some of Shergold's report, but only after his recommendations have been subject to more careful analysis, including of relevant history, and the preparation of a risk-management plan. Large chunks of it should be tossed overboard.
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If it's any consolation, a good friend of this column, Public Service Commissioner John Lloyd, continues to care less about history than Shergold. In a recent article in the Murdoch press, Lloyd said: "Over my long involvement in workplace relations, I cannot recall the CPSU embracing genuine initiatives that enhance flexibility or improve efficiency."
This column is no barracker for the Community and Public Sector Union – far from it – but it might be worth pointing out that it and its predecessor organisation, the Administrative and Clerical Officers Association, supported the major work and classification changes in the APS in the 1960s, backed many of the changes arising from Coombs royal commission in the 1970s (one of its officials was on the commission), supported the period of wage indexation in the public service from the mid-1970s until the early 1980s, supported the major changes to public service legislation in the 1980s, including the controversial introduction of permanent part-time work and reductions in appeal rights, supported the major changes to public service classifications in the 1980s (the essential elements of which remain to this day), cooperated with major public service restructuring including the corporatising and privatising of many functions in the 1990s that led, among other things, to the reduction of staff in the Defence Department from 45,000 to 15,000 and supported, unwisely perhaps, the devolution of pay and conditions bargaining in the 1990s.
Lloyd, if the consumption of fish oil helps with memory, you might want to think about upping your dose.
Paddy Gourley is a former senior public servant. firstname.lastname@example.org