Lack of tenure “core driver” of Robodebt disaster

Jul 15, 2023
Businessman lost in empty urban space.

It’s to be hoped that as much as possible can be squeezed from the Robodebt disaster not only to avoid a repeat but more generally to improve the working of the Australian government and its public service.

The Holmes Royal Commission report is boundlessly useful but the Government would letting the country down if it were to confine itself only to implementing fully its recommendations. Indeed, the Commissioner admitted she couldn’t get into “wholesale reform” of the public service as she had “neither the time and the resources to do so.”

Michael Keating rightly says that the Finance and Prime Minister and Cabinet (PM&C) departments should “monitor the programs” and “advise Cabinet on all new policy programs accordingly” and that it is “inexplicable” how staff in these departments “failed to spot and brief on the inherent flaws in Robodebt before it was even approved.”

That is, there was a failure in coordination between the public service’s central agencies. That may have been distorted by the Secretaries Board to the extent that it has displaced and diluted the coordinating roles of the Finance, PM&C and the Public Service Commission. Certainly it would seem the Board did little or nothing about Robodebt during its gestation or since. Indeed, it doesn’t appear on the “communiques” issued after its meetings until February 2023.

So, the Government should now be looking closely at the apparent shortcomings in the central agencies, including whether there should be a dedicated coordinating mechanism – what one eye might miss, the other might see. Further, the Secretaries Board responsibilities should be scaled back and, as a statutory board, it should be compelled to provide an annual report to the Parliament.

As a companion to Keating observations, Andrew Podger has emphasised the importance of holding to account the senior officials, some richly adorned with awards from the Order of Australia, who the Royal Commission has criticised. As much as the need for such action might be regretted, the discipline in the public service would be reduced to ashes if the shortcomings of individuals described by Commissioner Holmes were to be left untouched. Some, of course, are no longer in the public service and so could avoid disciplinary action as could other others by resigning. Thus, there should be no hesitation about accepting Holmes’s recommendation to amend the Public Service Act to make it clear that the Public Service Commissioner can inquire into the conduct of former agency heads and disciplinary action can be taken against former employees.

Following through on recommendations of the Robodebt Royal Commission must rely principally on advice from a public service which the Commission has been shown to be punching below its weight. Moreover, as administrative changes inevitably involve alterations in the relative powers of officials, turf protection can exert its doleful influence.

Other signs are unpromising.

The Public Service Amendment Bill now before the Parliament, honchoed by PM&C and the office of the Secretary for Public Service Reform, respectively headed by Drs Davis and de Brouwer, comprehensively fails to anticipate any significant thing arising out of the Robodebt saga and Royal Commission report. Indeed, if this legislation had been in place 10 years ago it is impossible to imagine how it would have done anything to impede the Robodebt.

Dr Davis is recently reported in the press as musing about the “need for deep thinking about Westminster guard rails” that might “restore balance between ministers and the public service”. Spare us. The time for “deep thinking” is over. The disastrous imbalance between ministers and officials gruesomely manifest in Robodebt has been apparent for ages. Drs Davis and de Brouwer, who were both members of the Thodey Review, have had the last year for “deep thinking”. It’s now time to do something other than forming sub-committees, dreaming up faint hearted and flawed legislation and indulging in the kind of depressing cliches, platitudes and leadership gobbledegook that have thus far dogged their attempts at public service reform.

Thus, in addition attending to the shortcomings of the central agencies and to the disciplinary and other actions on foot, the Government should:

  • immediately agree to implement all Commissioner Holmes recommendations for changes to laws and procedures affecting the working of government and the public service, including the controversial suggestion to remove the blanket protection to the disclosure of Cabinet documents now in the Freedom of Information Act
  • establish Services Australia as a statutory authority so as to better protect its operations and decisions from ministerial interventions – that is, for it to be put on footing similar to the Taxation Office
  • make consequential machinery of government alterations to the social security portfolio, and
  • withdraw the Public Service Amendment Bill from the Parliament until it can be made to encompass not only a full and comprehensive legislative response to Commissioner Holmes’s report but cover all other matters relevant to restoring the public service to the way it should be.

In the light of the evidence the Royal Commission has brought to light “about APS leaders being excessively responsive to government, undermining the concept of impartiality and frank and fearless advice”, the Government should also accept the Thodey Review recommendations on the appointment and tenure of departmental Secretaries, which the Royal Commission “endorsed”. How these didn’t get into the Public Service Amendment Bill is beyond belief.

In all this, a critical “guard rail” in securing a proper balance between ministers and the public service, to use Dr Davis’s language, is to restore the tenure of departmental Secretaries to how it has been for most of the history of the public service but which has more recently been reduced to zero.

Secretaries can now be arbitrarily tossed onto the street and left to the Jobseeker queue for any or no reason and through no due process. That is to say, there’s a strong and insidious incentive seeping through the public service to be circumspect in giving advice that might not be well received and so lead to Secretaries being given the boot with shadows over the reputations. That incentive should be removed. Thus, while governments should be able to move Secretaries from particular positions, when that happens they should be found other jobs with their tenure in the public service being the same as all other public servants. It’s hardly controversial, except for Dr de Brouwer.

He has been pleased to boast that lack of tenure “doesn’t stop me from doing what I have to do.” He would say that, wouldn’t he, because few like to admit to being readily intimidated. But it’s foolishly naïve to think that the arbitrary sacking of Secretaries is not having the effects the Royal Commission has gruesomely described.

Dr de Brouwer goes on to say that he’s never seen tenure as a “core driver”. Whatever that cliché might mean, dismissal of officials for cause and by due process has been a fundamental tenet in British derived public administration going back to the great reform movements in England in the mid-19th century. Why the Public Service Commissioner, of all people, now turns his back on that tradition of which his organisation is a principal manifestation and inheritor, is anyone’s guess.

Let’s not mess about: the tenure of departmental Secretaries is a “core driver” of their behaviour, if not the only one. It’s not a guarantee but without it full and frank public service advising is at grave risk. There’s no need for Dr Davis or any others to stretch themselves more brain busting “deep thinking”. A fresh and comprehensive Public Service Amendment Bill should simply provide for the re-introduction of the Hawke Government appointment and tenure provisions for Secretaries as that, among other things, would make a telling contribution to the avoidance of another Robodebt and remove a serious threat to the quality of public service advising.

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