When asked, ministers usually say they want public servants to dish up hot and strong advice. "Tell us what you think we should be doing in the public interest – that's what we need and we can take it without harbouring nasty thoughts about those of you who tell us discomforting things," they reckon.
The Financial Review's Verona Burgess reported recently on the Department of the Prime Minister and Cabinet secretary, Michael Thawley, writing "one of the first things Tony Abbott said to him was that what the government wanted from the public service was engagement, clear views, good dialogue – robust if necessary – and a sense of partnership". Thawley told her: "I don't think there is any reason not to give direct advice to the government."
What would the Human Rights Commission's President, Professor Gillian Triggs, think of that? When she dished up a report the government didn't like, Attorney-General George Brandis lost confidence in her and tried to move her on. When Triggs' experience is added to the unexplained sackings of departmental secretaries, some of whom were associated with controversial policies of the old regime, it's hard to take Thawley's line about what ministers want at face value.
These things can wax and wane, and it's usually difficult to sift and assess the evidence. Does the Abbott government have a more honourable record than, say, the gloomiest times of Kevin Rudd, when he gave up talking to his departmental secretary, Terry Moran, for months? Maybe, maybe not; it's hard to tell. It can be more confidently said, however, that, right now, good old frank and fearless is on the wane.
Burgess also reported: "On returning to Canberra, Thawley saw the public service was feeling somewhat battered and bruised. It also seemed more risk-averse than he remembered, and public servants less inclined to tell government what they really thought." It's not helpful that, since they were appointed at the end of last year, neither Thawley, the nominal head of the public service, nor the Public Service Commissioner, John Lloyd, have made on-the-record speeches for their APS subjects, saying: "This is how we see it." In the four years ending 2014, the then public service commissioner, Stephen Sedgwick, and his staff made 27 speeches on the record. This year, Lloyd and his staff have made none (at least, none are published online). In the face of this inscrutable silence, officials may be excused for thinking the message is: "Keep your heads down." And when Prime Minister Tony Abbott calls the state premiers to a meeting to solve the problems of the federation, official advisers will not be given the chance to put their heads up – they are to remain at home. Instead, Abbott is taking along, among others, Business Council of Australia chief executive Jennifer Westacott, whose organisation made such a telling contribution to last year's much misunderstood budget.
The characteristics of appointees to statutory positions are a useful indicator of how robust governments want their advice to be. The supposition is that those selected on merit are more likely to serve it up warts and all, while those chosen more because they match the politics of their appointers are more likely to sing their songs.
As difficult as it is to compliment the Rudd government, it took steps to improve procedures for statutory appointments, including for the ABC and SBS. And it seemed to go out of its way to give jobs to people associated with or sympathetic to the Coalition. For example, in 2009, former Coalition leader Brendan Nelson was appointed ambassador to Belgium, Luxembourg, the European Union and NATO. He did such a good job he was subsequently appointed as director of the Australian War Memorial.
On this front, the Abbott government's record is less impressive. Indeed, most of its appointments have been from the ranks of the politically sympathetic. At the same time, it has not extended the appointments of many of those made by the old regime – all, of course, in the interests of "refreshing" the boards on which they have served.
Brandis has been in the thick of this campaign. In one fell swoop in December, he appointed four former Coalition politicians to posts in his portfolio. It was not a bad day's work in some ways; like killing four birds with the one stone.
At the time of writing, Brandis has before him a recommendation for the appointment of the director of the Australian Film, Television and Radio School, which is within his portfolio. The school is a statutory authority created in 1973. Essentially, it is a training and research organisation. It is governed by a council comprised of three people appointed by the governor-general (including the chair), three from a "convocation", the director and representatives elected by the staff and students. The "convocation" consists of all past and current members of the council and staff and those holding degrees from the school – likely a lively lot.
The present director, Sandra Levy, will leave the role at the end of June. On April 10, the council's chairwoman, Professor Julianne Schultz, told me the council "followed the established best-practice model in searching for a new CEO [i.e. director] ... A recruitment firm with experience in this sector, Challis & Company, was appointed after a competitive process last year. It conducted a national and international search and the position was advertised in the national press and relevant specialist channels. A strong field of candidates was identified and interviewed by a panel of members of the AFTRS council, industry leaders and the Ministry for the Arts. A recommendation has been made to the minister."
Section 24(1) of the Australian Film, Television and Radio School Act provides for the school's director to be "appointed by the governor-general on the recommendation of the [school] council". Section 16A of the Acts Interpretation Act says references in legislation to the governor-general exercising powers and functions "shall be read as referring to the governor-general ... acting with the advice of the Executive Council". The Executive Council is the governor-general and such ministers who attend its meetings.
That is, the appointment of the school's director is approved by the governor-general acting on the advice of ministers, including the arts minister, in the Executive Council. In order to provide his advice, Brandis (who is Arts Minister) would presumably satisfy himself that the applicant recommended by the school's council is suitable and that proper processes have been followed. That should be evident from the papers provided by the school.
When I was informed that the executive search consultants had told an applicant for the director position that Brandis might wish to interview recommended applicant(s), I asked the minister about his involvement in the process. The Attorney-General's Department responded, saying Brandis "will approve the final appointment but will not be actively involved in the initial process of assessment and recommendation" and he did not wish to comment on any other aspects of the process.
The school has recommended one person for appointment as its director. So Brandis is not in a position of choosing from a list endorsed by the council. Indeed, it would be inappropriate for him to do so, for if that were the case the recommendation to the governor-general would come from him, not the school's council as required by the AFTRS Act.
If Brandis has any misgivings about the recommended person's merits, he should take them up with the school's council. However, given that the school has used a "best practice [recruitment] model", it is inconceivable that the recommended applicant is unsuitable or that proper processes have not been followed. In other words, there should be no need for the minister to interview the person recommended by the council, and he should not do so.
To keep the possibilities of political patronage to a minimum, in a general policy sense ministers should only be responsible for appointing their personal staff, the heads of government agencies and members of statutory boards. Such a policy is reflected in section 19 of the Public Service Act, which prohibits ministers from directing agency heads about the engagement and tenure of their staff.
In this context, the section in the AFTRS Act that brings ministers into the appointment of its director (i.e. its general manager) is far from ideal. The school's council is best placed to make this appointment and it, not the minister, must live on a daily basis with its director.
Other statutory authorities are burdened with provisions for the appointment of their general managers that are similar to those in the AFTRS Act. All of these arrangements should be brought into line with modern provisions, such as with the ABC and SBS, so the boards of these authorities can appoint their general managers without recourse to ministers and the governor-general.
The guardian of statutory authority policy, Finance Minister Mathias Cormann, would do everyone a favour if he organised such a change, and so limited the temptations of political patronage whose demons appear, at the moment, to be roaming free.
Paddy Gourley is a former senior public servant. pdg@home.netspeed.com.au
