It is dispiriting that the Public Service Act Amendment Bill now before the Parliament says so little about ‘merit’. Nothing about secretary appointments and terminations and only a minor grammatical change to clarify that ministers are not able to direct agency heads about individuals’ employment.
Yet we have:
- the Robodebt Royal Commission highlighting ‘the lengths to which public servants were prepared to oblige ministers
- the Royal Commission drawing attention to the Thodey Report recommendations about secretary appointments, performance management and terminations
- the Government claiming it is examining all the Thodey recommendations rejected by the Morrison Government
- Zali Steggall and her ‘teal’ colleagues pressing for apolitical merit-based appointments of statutory office holders
- the Attorney-General abolishing the AAT so as to bring back apolitical merit-based appointments to tribunals, and
- Lynelle Briggs commissioned to examine merit-based appointments to government boards
It seems that the APS leadership, advising the Government on amending the PS Act, is yet to recognise just how important ‘merit’ is to a Westminster-based public service. It was at the core of the 1854 Northcote Trevelyan Report that began the development of a professional civil service. It is critical to not only fairness, non-partisanship and constraining corruption, but also to efficiency, effectiveness and overall civil service capability.
Yet over the last decade the APS has lost sight of its central importance.
The capability review of the APS Commission (APSC) released a week or so ago draws attention to just one indicator of how the APS has downgraded the importance of merit. The review noted how the separation of the Merit Protection Commissioner from the rest of the APSC has ‘marginalised its work and interaction with the broader Commission as well as the role of the Merit Protection Commissioner’. ‘Further, the role has been vacant since December 2022’. The downgrading of the MPC began under APS Commissioner John Lloyd who recommended a lowering of the position’s classification to the Remuneration Tribunal. Previous APS Commissioners included the MPC on the Commission’s executive, contributing to all the Commission’s work drawing on the MPC’s hands-on experience with merit issues across the APS.
Lloyd also withdrew the Commissioner from the previous critical role of ‘certifying’ all SES appointments that they followed proper merit-based processes.
The downgrading of the MPC was not an isolated incident. The 2014 amendment to the PS Act dropped ‘merit’ from the APS Values, leaving it as one of the new ‘Employment Principles’, but not the first one. I argued at the time, without success, that this was a mistake. The new legislation did attempt to strengthen secretary appointment processes but sackings later in 2014 by the Abbott Government revealed the changes had no material impact.
To be fair, Peter Woolcott as APS Commissioner repaired some of the damage caused by Lloyd, reintroducing the SES ‘certification’ process and strengthening the Commissioner’s support for merit-based advice to the Prime Minister on secretary appointments. But he did not bring the MPC back into the fold, and the secretary appointments and terminations under the Morrison Government demonstrated again the weakness of current legislative arrangements.
Given the Robodebt Royal Commission Report, it is surprising that recent speeches by APS leaders, while expressing deep regret for Robodebt, have claimed that they have not compromised ‘frank and fearless’ advice and that their ministers always welcomed such advice (Gordon de Brouwer even included Tony Abbott as an example, not mentioning the sackings in 2014).
I recall the debate I had with Peter Shergold in 2007 when he claimed that ‘frank and fearless is a function of character, not tenure’, to which I responded that it was both. Secretaries respond to the rewards context in which they work, choosing when to go out on a limb and whether or how to express an unwelcome view. In extreme cases, this leads to the ‘cowardice’ the Royal Commission found. In my experience, the pressures were greatest not on major policy matters but on matters of due process – meeting FOI Act responsibilities, when and what to publish, answering Parliamentary questions, advising on grants. There is plenty of evidence that this remains true today.
Sorting out secretaries’ tenure will not totally resolve the problem, but it is an essential step. The welcome work now underway to improve how secretary and other agency head appointments are made will not lead to sustained reform without legislative change that constrains future governments as well as this one.
The Bill now before the Parliament has nothing on this critical issue.
Nor does it reinstate ‘merit’ as an APS Value. Instead, it proposes adding ‘stewardship’, surely a responsibility of senior management not staff to ensure agencies have the capability – the skills, the systems, the data and the connections – to meet future requirements.
The Robodebt Royal Commission provides the Government, and the APS leadership, with a grand opportunity to deliver substantial and lasting reform. This Bill does not deliver this. There is an unofficial suggestion that it is a first tranche of reform and that there will be a sequence of measures over the next two years. First, I have seen no public statement by a minister committing to this; second, it seems a strange way to achieve coherent and comprehensive reform, involving all the risks of repeated Bills before the Parliament to amend the PS Act.
I hope the Bill does not proceed, but that a more comprehensive reform package is developed which gives priority to ‘merit’.