In the vast majority of instances ministers and governments are excluded by law from decisions about the appointment and tenure of officials in Commonwealth departments and agencies. This arrangement gives effect to a desire for these decisions to be based as closely as possible on merit so as to maximise efficiency, effectiveness and fairness in public employment and to protect those interests from being damaged by political favouritism.
But there remains a residue of positions filled by decisions at the political level. Whatever else might happen to the Members of Parliament (Staff) Act, ministers and other members of Parliament must continue to have the power to hire and fire their staff. Further, ministers and governments inevitably will need to continue to appoint secretaries of their departments, the head and members of a wide range of statutory authorities as well as High and Federal court judges, members of quasi-judicial bodies like the Administrative Appeals Tribunal (AAT) and the Fair Work Commission, and ambassadors.
The quality of the administration of these appointment powers by all governments has been mixed. When the sainted Dr HC Coombs was in the employ of the Chifley government in the 1940s, the leader of the opposition, Robert Menzies, asked if Coombs was being paid from the public purse or the ALP's. When Democratic Labour senator Vince Gair was, as part of a political ploy, appointed by the Whitlam government as ambassador to Ireland and Holy See in 1974, the leader of the opposition, Bill Snedden, said the move was worse than anything in Tammany Hall although he praised Menzies's promotion of the Liberal Party attorney-general, Sir Garfield Barwick, as chief justice of the High Court.
Although following the example set by Menzies and appointing its attorney-general, Lionel Murphy, to the High Court, that and other appointments caused much political mischief paraded under the catchy slogan of "Jobs for the Boys". It's likely consequences caused the Fraser government to introduce absurd provisions for the appointment of departmental secretaries and for it to give greater weight to merit in other senior appointments. That approach more or less continued with the Hawke and Keating governments although slipped during the Howard era, the beginning of which saw the sacking of six departmental secretaries for no explained reasons and which through its life was conscious of the desirability of statutory appointees being politically aligned.
There was a reversion to merit with a dash of bipartisanship during the Rudd-Gillard governments. Rudd simultaneously appointed the former leader of the Coalition, Brendan Nelson, as ambassador to Belgium, the EU and NATO and the former leader of the ALP, Kim Beazley, as ambassador to the United States. How even-handed was that? Rudd and Gillard also fortified procedures for appointments to the ABC and the SBS.
Both the Abbott and Morrison governments sacked departmental secretaries, at least one seemingly because of work he had done on unliked policy - climate change - and others for no reasons. It's likely the procedures for appointments to the ABC and the SBS boards have not worked so well under these governments.
The Morrison government has been appointing significant numbers of politically aligned persons to the AAT, some being rushed through recently just before the caretaker curtain came down. While criticised, the scale of umbrage seems nothing like that engendered by the cries of "Jobs for the Boys" during the Whitlam government. It may be the community now is less sensitive about appointments with a political taint. A pity if so because citizens are being ill-served by it. Indeed, the community should scoff at Minister Michaelia Cash justifying an AAT appointment on the basis the person involved is able to "work under pressure"; maybe she's impressed with this quality because it doesn't appear to be a prominent component in her bag of tricks. Appointing persons with overt political attachments to a quasi-judicial authority where there is a premium on independence in reality and appearance must undermine public confidence no matter how well these people can "work under pressure".
The literature on senior appointments within the power of the governments and ministers is rather light on. The 1975 Coombs Royal Commission on the public service recommended vacancies normally should be advertised and independent panels should assess applicants and nominees against selection criteria and provide recommendations to government. The government 1987 guidelines on statutory authorities doesn't mention it.
In 2008, the Rudd government, influenced in particular by senator John Faulkner, set out a policy and set of procedures for the appointment of most agency heads and statutory office holder positions although not departmental secretaries whose appointment and tenure is covered by the Public Service Act. The Rudd-Faulkner rules remain on the books and they appear in "updated" form on the Public Service Commission website under the heading "Government's Merit and Transparency Policy". While it is an impressive document the pattern of appointments under the Abbott and Morrison governments suggests this administrative policy inherited from Rudd and Faulkner has not been working. Indeed, the Public Service Commission says it does not report on the policy, nor, it seems, does the Department of the Prime Minister and Cabinet. That is to say, the policy is dead in the water.
The 2019 Thodey Review recommended strengthening the Merit and Transparency Policy including by requiring ministers to advise the Parliament about adherence to it or otherwise. Consistent with its appointment habits, the Morrison government rejected these recommendations with the lamentable support of the hapless Secretaries Board.
What should be done? First, the Thodey Report recommendation that the Public Service Commissioner should advise the Prime Minister on Secretary appointments and tenure. Incredibly, the Secretaries Board witlessly advised the government to reject this recommendation and it did. In order to strengthen the independence of advice on these matters, the Thodey recommendation should be revisited and accepted. Second, the essentials of the Merit and Transparency Policy amended in line with the Thodey recommendations should be included in an Act of Parliament setting out principles and procedures for appointments to statutory positions to apply except where provisions no less rigorous already exist in the laws creating statutory authorities. The Act (let's call it the Integrity in Appointments Act in line with contemporary habits of giving Acts tendentious titles) should include but not be limited to provisions such as:
Administrative procedures are all very well but they can be evaded and, in the case of the Merit and Transparency Policy, it would seem so without political consequence. A system where merit matters much less for the most senior appointments than it does for the most junior is intolerable. Merit appointments allow the public service to properly and fully support governments and to do their best for citizens. The compromises of merit now being made on senior appointments damages the public interest and spreads impoverishment and disillusion. Enough is enough.
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