The first object of the Australian Public Service, set out in Section 3 of the Public Service Act 1999 is:
"...to establish an apolitical public service that is efficient and effective in serving the government, the Parliament and the Australian public."
Justices Keifel, Keane and Nettle state in their joint judgement in the Banerji case:
"There can be no doubt that the maintenance and protection of an apolitical and professional public service is a significant purpose consistent with the system of representative and responsible government mandated by the Constitution."
The other justices make similar statements; some go into detail about the relevant sections of the Constitution, and the long history of the APS including the influence of the 1854 Northcote-Trevelyan Report in the UK.
The careful references by the High Court to the constitutional role of the APS are an important reminder that protecting and nurturing the APS must not be seen as a policy priority for one side of politics or the other, but as central to the preservation of responsible government and the rule of law.
In its interim report, the APS review takes a rather complacent view of the current state of the APS, stating:
- "international comparisons paint a positive picture of the APS";
- "[it is] proud to recognise the achievements and international standing of the APS";
- "we must also understand where and why it is not making its full potential".
This conclusion mirrors the 2010 Moran report's view that "the APS is not broken" and "but it could perform better".
My view is less sanguine. The problems identified in 2010 have not been resolved. Capability deficits remain and seem likely to have gotten worse. Reliance on consultants and contractors has increased with highly doubtful (at best) gains in value for money terms and continued negative impact on APS capabilities. APS funding arrangements have not been fixed despite repeated expert advice for nearly 20 years about the inappropriateness of crude efficiency dividends and, likewise, remuneration policy remains a mess.
Most importantly, in my view, problems arising from the interaction of politics and administration have worsened over the past 25 years under both sides of politics, raising questions about how well the APS today is able to meet its constitutional responsibilities. Balancing responsiveness to the elected government and exercising the independence inherent in being professional, impartial and non-partisan is not new: it is a perennial challenge. But the "thickening" of the interaction between the APS and ministers, coupled with the professionalization of politics, has changed the relationship from a partnership to one often more akin to "master-servant", where the "master" is not just the minister but also the minister's chief of staff and other advisers.
The incentives for senior public servants have changed, and it should be no surprise that this has affected behaviour. Some senior public servants look to please their "masters", to demonstrate responsiveness by devoting resources to more tactical and immediate support than to strategic and longer term advice. To use Peter Aucoin's term, they exercise "promiscuous partisanship" - a willingness to go too far in supporting the elected government's political agenda and then switching when the government changes, going too far again in supporting the new government's political agenda.
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Am I exaggerating, pining for a past that never really existed? I don't think so.
Just last month, Paul Tilley released his history of the Treasury, tracing the waxing and waning of its capacity and influence since federation. He offers highly convincing evidence of the waning of recent years. One example stands out. Tilley was involved in providing a brief to the then treasurer with 40 different options for changing tax arrangements, some of which he said were "ridiculous". The briefing did not include any policy advice as they were told that advice to the treasurer would be provided by the office. The Treasury had become a source of information only. Tilley's book shows that even Treasury behaviour has changed, with the result that its capability as well as its influence has decreased.
Where capability has most clearly been maintained and properly nurtured is in statutory authorities like the Reserve Bank, the ACCC and the Productivity Commission. This demonstrates the importance of a degree of independence.
Justice Kenneth Haynes recently suggested that the increasing use of royal commissions indicated that other government structures were not working as they should. He highlighted four key attributes of royal commissions:
- public, and
- yielding a reasoned report.
He does not suggest government structures should replicate the processes used by royal commissions, but he does suggest reconsideration of the relationship between the political branches of government and the public service.
While concerned by the review's apparent complacency, I was pleased the interim report's first priority for change was to strengthen the culture, governance and leadership model. However, it does not need a new "inspiring purpose and vision that unifies the public service": it needs specific measures that reinforce the existing first object in the act.
Merit must again be included among the APS values, as the original principle behind a professional civil service. The way the values are expressed should also be recast to clarify the distinct role of the APS compared with that of politicians, political advisers, the parliamentary service, and other public sector employees.
The role of the APS commissioner needs further strengthening, particularly in light of the common practice in recent decades of prime ministers appointing individuals known and favoured personally by them as secretary of the Department of Prime Minister and Cabinet. The interim report does not go far enough in this regard. The APS needs a clear and separate professional head of the service, focused on stewardship of the APS and its capability to serve future governments as well as the current one. This is consistent with the functions of the commissioner as currently set out in s41 of the act. The secretary of PM&C is the operational head, marshalling the resources of the APS to meet the requirements and lawful directions of the prime minister and the cabinet.
This distinction, and strengthening the role of the APS commissioner, requires a change in the process of appointment of the APS commissioner. This appointment should be subject to consultation with the Parliament as now occurs for the auditor-general.
The APS commissioner should also take the lead role in advising on secretary appointments. In the event the prime minister does not follow the advice of the commissioner's panel, he or she should be required to table in the Parliament the reasons, based on merit, for appointing the person recommended to the governor general.
The APS review rightly emphasises the importance of clarifying the role of ministerial staff and strengthening their professionalism. This might be assisted by amending the Members of Parliament Staffing Act in respect of these staff, including specifying the values they must uphold and clarifying their accountability.
The interim report identifies a number of other critical issues for the APS to be "fit for purpose" in the coming decades, including the need to address capability and loss of expertise, to review the operating model, to address performance and to revisit partnerships. But it is thin on detail and supporting evidence and analysis. I can only hope the final report is more substantial so that it generates some real and lasting reforms.
I'm also hopeful that, on reflection, the Prime Minister takes a broader view of the important role of the APS that goes beyond service delivery and implementation of government policies.
As John Howard said in his 1997 Garran oration:
"The responsibility of any government must be to pass onto its successor a public service which is better able to meet the challenges of its time than the one it inherited."
The constitutional role of the APS demands stability and continuity, as well as flexibility and innovation. Protecting and nurturing the APS is vital.
- Andrew Podger is a professor of Public Policy at the ANU and former public service commissioner.