Appointment of Home Affairs Secretary Foster not merit-based

Dec 5, 2023
Home Affairs Acting Secretary Stephanie Foster during Senate Estimates at Parliament House in Canberra, Monday, October 23, 2023. Image: AAP/Mick Tsikas

On 1 November 2023 the Minister for the Public Service, Senator Gallagher said “in the next stage of reforms” to the public service the government would introduce “requirements for the Prime Minister and Cabinet Secretary to conduct merit-based appointment processes for Secretary roles to build rigor into the advice provided to the Prime Minister on candidates.”

On 27 November, the Governor-General, acting on the recommendation to the Prime Minister by the Secretary of the Department of the Prime Minister and Cabinet, Dr Davis, and the Public Service Commissioner, Dr de Brouwer, sacked the Home Affairs department Secretary, Mr Pezzullo. The Prime Minister said Ms Stephanie Foster would “continue to act” in that position.

She didn’t have to act for long, because on 28 November, following a report to the Prime Minister from Davis and de Brouwer, the Governor-General appointed Foster as Secretary of the Department of Home Affairs.

That is to say, there was no merit-based appointment process for Foster’s appointment. The Governor-General, with the Prime Minister and Drs Davis and de Brouwer cooperated to bring Minister Gallagher’s undertaking of 1 November to an ugly crash landing. Substantial repairs will be needed before it will be fit to fly again.

Embarrassing Minister Gallagher is not the worst of it.

First, it’s unfair to Foster. She may very well be the best person to be the Home Affairs Secretary but because she wasn’t afforded the courtesy of a merit-based process, she’ll never know and nor will anyone else.

Second, if merit can continue to be so casually relegated for the most senior positions, why not for others?

Third, while on 17 November Davis and de Brouwer boasted about being “committed to promoting a pro-integrity culture”, less than a fortnight later they’re at the heart of proceedings in which merit is tossed out the window giving the impression that commitments to integrity might not be all they’re cracked up to be. Their words seem to speak louder than their actions.

Let’s go back to what’s led to Ms Foster’s appointment, Mr Pezzullo’s dismissal.

When in September the disclosure of certain communications landed Pezzullo in the soup, his Minister asked de Brouwer to investigate. Instead of doing the job himself, the action that has become reflex, and which the government is working to moderate, kicked in – de Brouwer hired a consultant, a former Public Service Commissioner, Ms Lynelle Briggs, to put in the hard yards.

For reasons that have not been explained that job took several months with the Public Service Commission issuing a statement on 27 November saying that Pezzullo had breached the Public Service Act code of conduct “on at least 14 occasions” and listing five particular areas of offence.

At the end of its cursory statement the Commission said “No further information regarding the contents of the inquiry will be provided…”.

Disciplinary proceedings in the public service are self-evidently not the same as proceedings in courts of law. Yet with both it is important for the public to be able to have confidence that justice and fairness are done.

Public confidence in court proceedings is underpinned by their openness and the publication of reasons for decisions which often go to great lengths.

Over the last couple of months Mr Pezzullo’s case has attracted much community attention as he has been thoroughly bashed up in “the media”. Yet he has been tried behind closed doors and the decision to sack him has been described in such skimpy terms that the public cannot have confidence he has been treated properly and fairly. It’s not good enough for the Public Service Commission to say that in this case the public interest is served by disclosing “the overarching breach findings and the recommended sanction…”. And nor is poor Mr Pezzullo well served by the shroud the Commission has drawn over his case.

A report by a former New South Wales Public Service Commissioner, Graeme Head, on a proposal to appointment Mr John Barilaro to an overseas post was released in full. Ms Brigg’s report on Mr Pezzullo should also be released. The refusal thus far to do so leaves public confidence in the inquiry into his case in the lurch and it is an affront to another critical part of the “pro integrity culture” – openness and accountability.

In November, Drs Davis and de Brouwer said “We encourage all staff to reflect on how integrity shapes our work for the Australian public.” They might be encouraged to heed their own advice and, in particular, see if they can better exemplify those bastions of integrity, merit and accountability.

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