Public service independence hinges on appointments

Are the ethical structures of the APS sufficiently strong to withstand these pressures?

A common theme among my correspondents was that the APS had already lost a significant level of independence in the face of political pressure from ministers and their offices. Politicians were less inclined to respect public servants' views Frank and fearless advice was in ever-diminishing supply as senior public servants scrambled to ingratiate themselves with ministers and to align their advice with powerful interests represented by politicians.

These are familiar complaints, not only in Canberra but also in London, Ottawa and Wellington, as public servants adjust to new pressures that have reduced ministers' interest in receiving impartial, sometimes unpalatable, advice from career bureaucrats. Especially for those who have worked in Westminster bureaucracies for a generation or more, the changes are self-evident and largely a matter of regret. Hence the widespread resonance of an argument that public service independence is under long-term threat.

Given recent developments in democratic party government, some of these changes cannot be reversed. For those concerned about protecting fundamental constitutional principles, such as due process and the rule of law, the task is to look beyond a lost world of public service preeminence in the formulation of government policy. Instead, they need to work out how traditional values can be preserved in settings that are significantly different from those in which they originally evolved.

One irrevocable trend, or set of trends, that has impinged on public servants' capacity to speak up for public service values is the increasing mediatisation of policy discourse. This includes such well-documented features as the 24-hour news cycle and the continuous election campaign, in which so much of ministers' time and energy is devoted to political presentation and persuasion in the media. It has also led to, and been fed by, the swelling ranks of political and media advisers that help ministers in their endless search for favourable publicity and political advantage.

In all mature Westminster systems, the balance of power between the political and bureaucratic arms of government has shifted in favour of the politicians. For example, public servants now feel more pressure to tailor their written advice to suit the government's political agenda, a familiar complaint from long-serving officials. How far this impinges on the public service's ethical integrity remains an open question. Some tempering of frankly worded formal advice may indeed be justifiable in meeting politicians' growing need for politically effective arguments and to forestall the politically damaging effects of eventual disclosure under freedom of information – another irreversible trend.

From an ethical standpoint, the key test is whether public servants are able and willing to stand firm against politicised attempts to compromise legality and due process on issues such as public service appointments, the letting of contracts and the integrity of democratic procedures. Though the boundaries may have shifted, they have not disappeared. The interface between partisan imperatives and public service values of objectivity and integrity is still fundamental to the smooth working of our system of government. Ministers and their staff need to be reminded constantly that there are ethical and legal limits to their control of the machinery of government.

Much depends on the ethical integrity and resilience of the upper ranks of the APS, which cannot be taken for granted, particularly with the partial politicisation of secretary appointments. In this connection, the role of the Australian public service commissioner is relevant and topical, with the imminent resignation of the incumbent, John Lloyd. Lloyd, with his background at the Institute of Public Affairs, was appointed as the Abbott government's attack dog on the APS but was ill-suited to perform the commissioner's duties.

The Public Service Act says the commissioner, a statutory officer, is required, among other duties, to "strengthen the professionalism" of the APS, "to uphold high standards of integrity and conduct in the APS" and "to promote the APS values, the APS employment principles and the code of conduct". The commissioner may also issue directions in writing in relation to any of the APS values.

Ethical leadership has been in short supply during Lloyd's tenure, apart from a draconian and unworkable policy on public servants' use of social media. He also leaves under an ethical cloud, with an unresolved charge of breaching the code of conduct against his name.

Choosing Lloyd's replacement will test of the Coalition government's commitment to an independent and ethically robust APS. Will Prime Minister Malcolm Turnbull stand up for the principle of an apolitical APS, as he did when bringing Martin Parkinson back into the fold in 2016? Or will he sacrifice the APS's future standing by throwing a partisan bone to his conservative culture warriors?

Beyond that immediate decision lie more fundamental questions about the commissioner's constitutional position. In what sense is the commissioner the leader of the APS? In addition to the ethical functions already mentioned, the commissioner is also required to monitor and report on APS capabilities, to promote high standards of accountability, effectiveness and performance, and generally to take initiatives that will improve the APS's quality. The commissioner also has a role in appointing secretaries, advising the prime minister on the appointment of the Department of the Prime Minister and Cabinet secretary, and being consulted by the PM&C; secretary on all other secretarial appointments.

In practice, however, PM&C; secretaries operate, and see themselves, as de facto heads of the APS, through their central role in secretarial appointments and in their capacity as chair of the secretary's board. If the prime minister needs an inquiry conducted into a sensitive matter in the upper echelons of the APS (for example, the conduct of former Border Force commissioner Roman Quaedvlieg), the PM&C; secretary is the natural go-to person, in spite of the leadership role accorded to the public service commissioner by statute.

The PM&C; secretary is too close to the prime minister and the government as a whole to effectively champion the APS's ethical independence, particularly if the APS faces increasing political pressure to bend the rules. There is a good case for using the public service commissioner's powers to the full and even strengthening these powers to take over some of the functions assumed by the PM&C; secretary.

For a model, reformers need look no further than New Zealand, where the state services commissioner acts as formal employer of department chief executives (the equivalent of secretaries), chairs chief executive-appointing committees (which include other senior public servants and independent advisers as well as ministers) and reports on departmental performance. By contrast, the head of the New Zealand Department of the Prime Minister and Cabinet concentrates on assisting the prime minister and the government in furthering their policy program. The separation of functions between the two officers is not without occasional friction and state services commissioners have, from time to time, been criticised for overstepping their powers. But it generally works effectively, institutionalising the principle that the public service, though loyal to the government of the day, belongs to the public not ministers.

New Zealand is often singled out as the Westminster democracy with the least politicised public service. It achieved this not by resisting the managerial reform movement of the 1980s but by applying its doctrines ruthlessly, particularly the separation of functions and the clarification of objectives. Hence the sharp institutional distinction between its PM&C; and the State Services Commission.

Australians have tended to disparage New Zealand's obsession with institutional clarity as ideological and unworkable. Perhaps it could only work well in a smaller jurisdiction, with strong informal networks reinforced by Wellington's constricting geography.

But it may have lessons for Australia as the forces of political corruption become more pressing. The Thodey review should study it carefully. After all, New Zealand is the only English-speaking democracy that regularly rubs shoulders with the Scandinavians at the top of the international anti-corruption tables.

Richard Mulgan is an emeritus professor at the ANU's Crawford school of public policy. richard.mulgan@anu.edu.au