Pearls and Irritations

Will the Mike Pezzullo case be a line in the sand?

The case of the Head of the Department of Home Affairs, Mike Pezzullo, now stood down on full pay, is an extreme manifestation of the fact that in our democracy, too often public servants flout what the High Court said in 2019 is essential: an apolitical bureaucracy.

Pezullo’s partisanship and seemingly complete disregard for the conventions and traditions of an impartial public service, as revealed by the Nine newspapers which has published Pezzullo’s emails to a Liberal Party apparatchik, is so egregious that it is hard to see how he has not breached key tenets of the Public Service Act, a piece of Commonwealth legislation introduced by the Howard government in 1999.

Section 59 of the public service legislation sets out the procedure for the sacking of a departmental head. It is done by the Governor-General acting on the advice of the Prime Minister. And the latter can only provide that advice if he or she has received a report from the Public Service Commissioner.

The Albanese government has referred Mr Pezzullo’s conduct to the Public Service Commissioner because under the public service legislation he or she has to conduct an inquiry into alleged breaches of what is called the Australian Public Service Code of Conduct. The Code of Conduct, which is set out in section 13 of the legislation, is essentially a guide as to what public servants should and should not do.

The Code lists a number of standards of conduct which applies to all Australian Public Service employees. In Mr Pezzullo’s case the relevant standards, and therefore the focus of the Commissioner’s inquiry, are likely to be acting “with care and diligence in connection with APS employment”; using “Commonwealth resources in a proper manner and for a proper purpose; and “at all times” behaving “in a way that upholds the APS Values.”

It is the last mentioned of these standards which appears most relevant to Pezzullo. The APS Values are enshrined in law via section 10 of the public service legislation. The Values include that the APS is professional and objective, is apolitical and provides the Government with “advice that is frank, honest, timely and based on the best available evidence.” And the Values apply to departmental heads. The legislation makes it crystal clear that “Agency Heads are bound by the Code of Conduct in the same way as APS employees.”

To make it clear, there is no suggestion Pezzullo has acted corruptly or illegally, a point made by the Nine newspapers. Rather it is his communications with Scott Briggs, the Liberal Party member, about political matters, including who his preferred minister might be, his critique of media performances by ministers, and his vigorous chiding of journalists, which is in issue here.

It is hard to see how Pezzullo’s extraordinary volume of text messages on these issues, could be seen to be anything other than a serious breach of those values. Even a cursory reading of the text messages demonstrates that they contain content no public servant should contemplate writing.

Of course at the moment the ‘evidence’ against Pezzullo is what is reported in the Nine newspapers. But presumably the text messages were sent and received on Pezzullo’s Department issued phone and he will have to hand them over to the inquiry.

The other issue is whether Pezzullo could possibly argue that his communications are protected by the implied right to political communication, a right which has emerged and been affirmed in a number of High Court cases since the mid-1990s. The answer is no.

In 2019, the High Court considered this argument, ironically in a case involving a public servant who had taken to social media to criticise (justifiably one might add) the inhumanity of Australia’s policies and practices in respect of asylum seekers. In that decision, Comcare v Banerji, the Court took the view that while the Code of Conduct, to use Justice Edelman’s phrase, “casts a powerful chill over political communication”, that burden was justified because, as the Court said, “[t]here 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.”

And that is what is at stake here. As Andrew Podger, a former Commonwealth agency head put it in 2019; “Balancing responsiveness to the elected government and exercising the independence inherent in being professional, impartial and non-partisan, in serving the public and the Parliament as well as the Government, is not new: it is a perennial challenge.” Perhaps the Pezzullo case is a line in the sand moment, where the Public Service Act and the High Court’s affirmation of the need for an apolitical public service, are taken more seriously than has been in the case in recent years.

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