Holding senior public servants to account

Dec 23, 2023
Feet of a businessman walking in revolving door. Image: iStock/AnkiHoglund

A central question the Joint Committee on Public Accountability and Audit is pursuing in its inquiry into probity and ethics in the Commonwealth public sector is how to hold individual public servants to account for the failures so often being found in ANAO reports and those of other inquiries. Must we have a Royal Commission before individuals are identified and held to account?

The Public Service Act and Public Governance, Performance and Accountability Act exemplify the shift from earlier more prescriptive approaches to personnel and financial management to a ‘principles-based’ approach. They devolved more authority to agencies to manage for results, ostensibly with firmer accountability for those results. They also spell out the responsibilities and duties of senior executives which relate to how results are to be achieved, including the ethical leadership expected of secretaries and other agency heads.

But as the Auditor-General, Grant Hehir, said in his latest annual report and repeated in evidence before the JCPAA:
‘there appears to be a relatively high risk-tolerance for non-compliance so long as results are achieved, rather than seeing compliance as a hallmark of integrity and essential to the craft of public administration.’

He might also have noted recent interpretations by some public servants that the ‘results’ to be achieved include what ministers and their staff prefer rather than the formal objectives of the programs being administered.

The concern I expressed to the Committee is that the rewards from pleasing ministers and advisers, even when this involves non-compliance with legal and ethical requirements, seem to exceed any penalties. Indeed, it is rare that anyone is held to account for non-compliance let alone any sanction imposed.

Hehir noted that the ANAO has, for a number of years, suggested that the policy owners of frameworks should — in areas such as resource management, procurement, grants administration, cyber security, record-keeping, freedom of information, and ethical conduct —take a stronger regulatory posture. Alternatively, the current reliance on principles might need reconsideration with stronger and more independent oversight functions and a clear mandate to serve the Parliament.

In evidence provided to the Committee last month, APS Commission executives drew attention to the report of the Integrity Task Force, Louder than Words: An APS Integrity Action Plan, released just days before by the Secretaries Board with the Board’s in-principle endorsement. The report sets out 15 recommendations under three headings: culture, systems and accountability.

The recommendations include some useful measures that would, inter alia, strengthen the oversight by Finance of procurement and contracting and by the APS Commission of ethical behaviours through a firmer performance appraisal system for secretaries and other agency heads, and the SES.

The latter in particular offers the opportunity to begin to rebalance the current reward system, but only if it gives weight to ethical leadership and feeds into the appointments processes for secretaries and other agency heads as well as the SES. Senator Gallagher last month appeared to commit the Government to new legislation, following the current Public Service Act Amendment Bill that disappointingly has so little substance, to impose a firmer merit-based appointment system supported by stronger performance management by the APS Commissioner. (The recent failure to advertise the Home Affairs position, however, suggests the new appointments system may not be as robust as claimed.)

One way for the APS Commissioner and PM&C Secretary to get a handle on how to assess ethical leadership would be for them to reflect on secretary appointments (and terminations and failure to reappoint) over the last 25 years or so, and who, in light of ANAO reports and other evidence, demonstrated strong or poor ethical leadership. What lessons might emerge for future appraisal of behaviours and future appointments advice.

Further steps are needed beyond improved appointments processes to get the reward system into balance. In particular, the use of term appointments for secretaries should stop and the 1980s Hawke Government model reintroduced where best endeavours were taken at the end of an appointment period to find alternative suitable employment.

Missing from the report, including its section on ‘accountability’, is any sense of how the APS might actually hold individuals to account for lapses in integrity identified by the ANAO or other investigations, and the consequences for such lapses. I suspect that in most cases, the appropriate consequence is acknowledgement, reflection and learning, but on occasions breaches of the Code of Conduct should be investigated; however, the first step must be to identify the individual(s) who should be held accountable.

The report does suggest the development of a metric to measure agencies’ integrity performance. I suspect this will prove very difficult, but a start could be made by including in the APSC’s employee census questions on sensitive issues including relations with ministers and their offices, confidence in advice on grants and agencies’ management of procurement as well as in the application of merit.

The Integrity Task Force report does have useful recommendations to better manage ‘revolving doors’ (where people move between the APS and consultancies and contractors) and to impose ethical rules on consultants and contractors. That said, the recommendations demonstrate how the APS (and the Integrity Task Force itself) seems to have forgotten about the lessons learned in these areas decades ago whether from the Bowen Report in the 1970s or ANAO’s examination of contractors’ ethical standards a decade ago (the report similarly makes no mention of the work by the APS Commission two decades ago on ‘embedding the APS Values’).

Less convincing are the measures proposed for record-keeping which desperately need the action supported by the Robodebt Royal Commission of guidance from the APS Commissioner on the minimum requirements for keeping records (this really should be in the form of a legal direction from the Commissioner as advocated by Peter Shergold some years ago in his report, Learning from Failure, and as also recommended by me in my report to the Royal Commission this year).

Also, despite a recommendation to assist public servants who work in ministers’ offices, no mention is made of articulating the values of ministerial staff or legislating their code of conduct (despite the latter being recommended by Thodey and Jenkins and explicitly endorsed by the Royal Commission).

So the Integrity Task Force report provides a start, but it needs more teeth if it is to make the difference we desperately need. It also reveals once again that the action being taken by both the Government and the APS leadership is too slow with too much emphasis on fine-sounding words and too little on substance. Hopefully, the JCPAA will add more pressure on the APS for reform.

Original article published by The Mandarin on 20 December, 2023

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