Government’s response to Thodey: long on rhetoric, short on substanceJun 2, 2023
My recent stocktake of the state of play on implementation of the Thodey Report recommendations was written just before PM&C released details of proposed changes to the Public Service Act with an exposure draft of the legislation and an exposure draft of explanatory materials. Extraordinarily, consultation on the changes ends on 31 May but these documents were only released on 22 May (a brief ‘consultation paper’ was released on 3 May).
Despite multiple references to the Thodey Report, the documents are remarkable first and foremost for what is missing. The draft bill has no provisions for:
- Strengthening the powers of the APS Commissioner (Thodey R7);
- Clarifying the distinct roles of the Secretary of PM&C and the APS Commissioner (R38);
- Strengthening the merit-based processes for appointments and termination of secretaries (R 39a and 39c);
- Consulting the Leader of the Opposition before the appointment of the APS Commissioner (R39a).
This confirms my fears. I can only hope the Government is forced to reconsider these matters when the Robodebt Royal Commission reports since the evidence before the Commission suggests strongly that current tenure arrangements for secretaries played a part in the inappropriate behaviour of senior public servants. Peter Shergold’s famous phrase, that frank and fearless advice is a function of character not tenure, was wrong: it is about both.
The main focus of the reforms (sic) the Government is pursuing through the proposed PS Act amendments is the more rhetorical elements of Thodey and legislating measures already being taken.
The first of what I consider ‘rhetorical’ is the proposal to add ‘stewardship’ to the APS Values. As mentioned previously, Thodey did not recommend this, but proposed a new set of ‘principles’ additional to the APS Values and Employment Principles. The proposed principles included stewardship drawing on the NZ practice where senior public servants must uphold the principles; by contrast, the values must be upheld by all public servants.
My strong preference remains to have the APS Values as the central principles that all APS employees must uphold, reflecting our Westminster-based framework of a non-partisan, merit-based public service that impartially administers the elected government’s policies and programs and is held accountable through the system of ministerial responsibility. Stewardship is a function, not a value, and our current approach under the Act to make APS leaders responsible for it should be strengthened.
A definition of ‘stewardship’ would help, however, but the wording in the draft bill is a clumsy attempt to find something that all public servants might uphold. A simpler version that the APS leadership should be responsible for would be:
‘Building the capability and institutional knowledge of the APS to support the public interest now and into the future.’
The second ‘rhetorical’ proposal is to include in the PS Act provision for an APS Purpose Statement to be prepared by the Secretaries Board from time to time. I remain of the view that the existing s3 of the PS Act, ‘to establish an apolitical public service that is efficient and effective in serving the Government, the Parliament and the Australian public’, together with the APS Values, represents a sufficient and ongoing statement of purpose. These provide the glue for a unified APS. I fear that trying to add more to ‘unify’ the APS would, like the current over-emphasis on mobility, risk undervaluing the wide range of functions the APS performs and the level of expertise each requires.
My preference is to dispense with both these rhetorical proposals and instead to revisit the APS Values as proposed previously, emphasising ‘merit’ in particular.
A third rhetorical proposal was not recommended by Thodey and, if interpreted as more than rhetorical, could cause serious difficulties. It involves requiring agency heads to create a work environment that enables decisions to be made by APS employees at the lowest possible classification level. No doubt, action is needed to address the current excessively hierarchical culture in the APS, but I very much doubt that legislation is the answer.
The other main changes proposed include legislating measures already being pursued:
- Mandating capability reviews, how they are to be conducted and the action plans to subsequently be prepared;
- Mandating agency heads to publish APS census results for their agencies and to prepare action plans.
These measures are themselves welcome (though the second one seems of very little moment for the Australian public). But there is a serious question as to whether they should be in legislation. A central feature of the 1999 Act was its emphasis on principles (essentially the APS Values) and the absence of the previous (1922) Act’s detailed rules.
I am more supportive of the proposal to authorise the Secretaries Board to arrange for ‘long-term insights reports’. This draws on NZ practice which requires all departments to prepare ‘insight briefings’ identifying and analysing the longer-term issues they face. These complement NZ’s equivalent of our Intergenerational Report. Such long-term insights reports would help to ensure the APS does devote time and resources to policy research and analysis, and to looking at the long-term and could complement our IGR. While all departments should be doing this, involving the Secretaries Board may open up opportunities for reports on long-term cross-departmental challenges.
Overall, I suggest the Government, and PM&C, suspend any further work on this extremely disappointing effort that is so clearly not ‘Thodey on steroids’. They should wait for the Robodebt Royal Commission to report and start again.