Integrity, accountability and stewardship are, post the Robodebt royal commission, to be the watchwords of the hour. The cynic will note that the agencies to oversee changing the culture are those which did most, in word and deed, to create, foster and promote the old culture, and that not one of them has publicly examined the agency’s performance over the past decade or ‘fessed up’ to any departmental words or actions that were plainly less than ideal on the integrity front.
Some of the behavioural sins – including acting in the knowledge that what was being done was illegal – were as evident in some agencies as in Social Security, or Centrelink, where senior officers are now facing criminal, civil or disciplinary proceedings. It would be setting a bad example if other public servants, particularly in central agencies, were seen to be exempt from the sort of examination of conscience, and penance that is now taking place.
Some agency heads would protest. Three of the four central agencies most in a position to set public service standards – Prime Minister and Cabinet, Finance and the Public Service Commission – now have new men at the top. They might insist that all is now well under their leadership, regardless of what may have happened before. But agencies are bigger than their leaders, and, given the calibre of some of those leaders, many pass through leaving little in the way of impression, departmental culture remaining unchanged. None of the new bosses has restructured their agencies in any significant way. Officials who were cyphers for the ideology and will of the former government remain in position, continuing to treat their opinions and prejudices as facts. It is not just that the relevant ministers do not seem to care, or do not know better. The place and access of those officials is a matter for the department head, not the minister.
Nor do any of the new leaders, scene-setters for a new era, seem to have conducted any sort of inquiry into notorious misbehaviour, or apparent misbehaviour under previous “leaders”, whether their own or those with whom they work. The page has been turned. We are in year two, not the 122 since Federation. History is only for political point-scoring. Their speeches signalling change are vague and optimistic but essentially meaningless, and particularly uninterested in what their closest colleagues have been doing. As Paddy Gourley recently pointed out in Pearls & Irritations Lack of tenure “core driver” of Robodebt disaster, not even one of the crimes, misdemeanours or acts of misconduct exposed by the Robodebt commission would have been prevented by any of the anodyne changes to public service legislation swept in by the new brooms over the past year. Or legislation in contemplation. Top public service committees – of secretaries for example, do not mention at their many meetings cases worth exploring. No one, in the senior agencies or elsewhere, has sent out any messages that henceforth officials must no longer sit passively by if ministers appear to be breaking the law.
No one has asked how it was that senior officials of some of the senior agencies sat in Cabinet expenditure review committees in circumstances where they could hardly have failed to be aware that Centrelink was misleading ministers, if only by omissions that its boss Kathryn Campbell has called “oversight.” It should have been obvious to those with the big picture — the dollars and cents, the economic strategy and the coordination of policy– that what was being claimed by the minister, the secretary and the departmental brief, was misleading. Indeed, in the royal commissioner’s view, deliberately deceptive. The plan, apparently, is to punish the secretary, and maybe the minister, for this. Are we to punish those who should have noticed, but negligently failed to do so? Or who, having noticed, decided not to rock the boat. Commissioner Holmes had no real power, or time, to look at the wider context of the mega-scandal she was charged with investigating. But much of that context is obvious. Is it in the public interest that the big boys and girls get off scott-free, as it were, while we burn some witches?
If Freedom of Information (FOI) was the test of ethical behaviour and honest intention, PM&C would rank last.
A quick, useful way of checking whether agencies had changed their ways over the past year might involve checking performance in FOI requests asking questions about agency activities. FOI might not be the most important part of an agency’s functions, and many senior public servants hold it in open disdain. Nonetheless it is the law of the land, whether in terms of the timetable set down for answering requests, or in the spirit with which exemptions can or should be claimed. Any such review would make it immediately obvious that many agencies, including central ones, routinely defy legislated timetables, and that they regularly make plainly spurious claims that processing the request would involve an unreasonable diversion of departmental resources.
That the claims are specious is obvious not only by inspection but from formal reviews of decisions, after appeals to the Information Commissioner. Alas, these often come years after the decision, thus achieving agency aims of frustrating requests when they are topical or embarrassing to the government or the agency. This general aim is carried further with the routine making of fanciful, even laughable, claims for exemption, including in general terms that have been explicitly rejected in FOI guidelines or previous FOI decisions. Agencies frequently ignore precedents, at least until any adjudication process.
The open flouting of the spirit of the law is orchestrated by senior officers in PM&C and does not appear to have abated since the change of government. While in opposition, Albanese and the shadow Attorney-General, Mark Dreyfus were scathing about the use of false claims to avoid disclosure. In power, they shifted abruptly, making claims of a sort they had previously criticised, and becoming compulsive secrecy zealots. And, despite promises, they have continued keeping the FOI appeal system seriously under-resourced so that they get the full benefit of undue delay. The office of the information commissioner could certainly be a lot more efficient, if only it used its inquisitorial powers and devolved them on staff so that they could force the pace with recalcitrant agencies. But if it became more efficient, it would probably have its own limbs amputated.
A department which will not manage FOI in the public interest will almost certainly be cutting corners and doing dodgy things in its other activities. A minister who smiles over departmental resistance to the law is encouraging that attitude of mind to dealing with wicked problems in public administration. Such as, perhaps, attacking welfare fraud, were it actually a serious problem.
Why do public servants smile and shrug at open defiance of the Act by senior colleagues? What example have public service commissioners or secretaries set? The last public service commissioner to be an enthusiastic champion of FOI was Peter Wilenski who once commented that the total cost of having an FOI Act was rather less than the cost of maintaining golf courses on Defence department properties. Other senior officials make public sport of being cute and economical with the truth at estimates committee hearings.
How does this promote a culture in which public servants who abuse their powers come to know that “we’ll find you; we’ll track you down and you will have to repay those debts and you may end up in prison”? As Alan Tudge put it in a somewhat different context.
John Waterford AM, better known as Jack Waterford, is an Australian journalist and commentator.
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