NSW, like Victoria before it, is demonstrating once again that the dangers of politicisation do not lie with just one side of politics.
NSW, like most other States, has limited protection against politicisation of its public service. Its senior executives, whether they are departmental secretaries, other agency heads or other executives (with some specified exemptions), are subject to termination of their appointment “at any time, for any or no stated reason and without notice” under the Government Sector Employment Act. But at least there has been a reasonably powerful Public Service Commission since 2013 to provide some constraint.
However, the Commission is not so powerful now after Premier Chris Minns brought it within his department, transferred most of its functions away from Commissioner Kathrina Lo, and reduced her staff from around 120 to around 16 (with full effect from 1 October).
The story of NSW’s public service authority goes back some time, and I well recall my own involvement in some of the debates. That involvement followed the public discussion I had in 2007 as national president of IPAA over the Howard Government’s practices for appointments and terminations of departmental secretaries in the APS, and their performance management and pay. My view was that these facilitated excessive political control of the APS. The new Rudd Government committed to addressing the concerns I had raised.
In 2008, when I was still IPAA national president, we ended our national conference in Sydney with a forum on the relationship between the public service and ministers involving amongst others Nick Greiner (former NSW Premier), Arthur Sinodinos (former Chief of Staff to Prime Minister John Howard), Bruce Hawker (former Chief of Staff to Premier Bob Carr) and academics Jocelyn Bourgon and Peter Aucoin from Canada and Anne Tiernan from Australia.
I suggested to Greiner that his abolition of the former NSW Public Service Board in 1988 might be contributing to the politicisation then evident in NSW under Labor. Greiner initially rejected this argument noting that the Public Service Board at the time was chaired by “Bruvver Ducker”, a long-term union leader and Labor Party apparatchik. Fair point, I conceded, but the establishment of a more professional Public Service Commission in NSW might provide protection of the merit principle which the public sector so clearly needed. I gained the impression that Greiner saw some truth in this.
I also suggested that Ministers might have more faith in senior public servants and their loyalty to the elected government if there was a requirement not to belong to a political party. That drew the ire of John Lee, then head of the Premier’s department and closely identified with Labor, who claimed this would inhibit his and his colleagues’ rights. That seemed more important to him than the standing of the public service as a key apolitical institution in our democratic system.
The following year, I came into contact with Barry O’Farrell, then NSW Opposition Leader. He attended our 2009 National Conference (at which Prime Minister Kevin Rudd gave the Garran Oration) where he committed a new Coalition Government in NSW to establishing a new Public Service Commission. That came to pass, with the NSW Government Sector Employment Act 2013. The Act did not go as far as I wanted (it retained the capacity to terminate senior executive appointments at any time, for any or no stated reason and without notice), but it did create a reasonably powerful Public Service Commission, backed by an advisory board of quite eminent people. Its functions encompassed both integrity roles such as compliance with the merit principle and other ethical practices, and workforce capability roles such as workforce planning, identifying reform opportunities, advising on the structure of the government sector workforce and its leadership structure, and advising on service delivery strategies and models.
Minns’ amendments to the legislation, passed in a rush in late June with little debate, limit the Commissioner’s “function of leading the strategic development of the government sector workforce” to:
a). Recruitment
b). Equity and diversity
c). General conduct and compliance with ethical practices
d). Learning and development
e). Executive employment arrangements.
Removed are responsibilities relating to:
- Workforce planning
- Performance management
- Succession management
- Redeployment
- Leadership structure
- Structure of the workforce
- Service delivery strategies
- Setting standards for the selection of persons for appointment of boards or committees of public authorities (including GBEs).
The Government claimed the changes were in line with the (unpublished) interim findings of a review it had established that only the integrity functions of the Public Service Commission need to be exercised at arm’s length from the Government by a statutory officer and that the other functions could be undertaken by a central agency. An independent (and published) review in 2020, however, supported retention of the Commission’s workforce as well as integrity functions.
Under the new arrangements, the Commissioner is also no longer responsible for the state of the service report. This is now to be issued by the premier (presumably his department will conduct the “assessment of the performance of the whole of the government sector” and the “analysis of the government sector workforce data” still required under the legislation, but with what degree of independence must be uncertain).
With just 16 staff and operating within the Premier’s Department, it is hard to see the Commissioner retaining significant status within the NSW public service leadership cadre. Nor that she can firmly conduct the more limited functions she now has, though her role in executive employment arrangements was never extensive. She must be consulted on secretary appointments, but the head of Premiers has always had the leading role, and she is not involved in the selection of senior executives employed by agency heads. Agency heads must report to her on terminations, but only after they take effect, leaving her at best able to monitor practice and, if brave, mention in her annual report (or previously the state of the service report) any concerns about termination practices.
These changes do not augur well for the public service in NSW. They run in the opposite direction to the reforms being pursued at the Commonwealth level (including those committed to by Katy Gallagher in her APS reform speech last December) which involve strengthening the role and standing of the APS Commissioner. And those reforms do not yet go far enough in my view amongst my recent proposals is for the APS Commissioner to be the “Professional Head of the APS”).
As the Albanese Government takes action to address the excesses of recent Coalition Governments in political control of the APS, it would be nice if it conveyed to colleagues in NSW (and Victoria), the need to avoid replicating those excesses and to take measures that genuinely promote the apolitical professionalism of their public services. Equally, it would be nice if the Opposition in Canberra reconsidered its stance on the public service, listening to concerns being raised by their state colleagues about the excesses of state Labor Governments, and the need for measures to reinforce the integrity and capability of public services, including the APS.
Andrew Podger is honorary Professor of Public Policy at The Australian National University, and former Australian Public Service Commissioner and Secretary of the Departments of Health and Aged Care, Housing and Regional Development, and Administrative Services. He was national president of the Institute of Public Administration Australia from 2004 to 2010, and a member of the foundation board of the Australian and New Zealand School of Government. He was made an Officer of the Order of Australia (AO) in 2004, and has written extensively on social policy including health financing, retirement incomes and tax and social security, and on public administration.
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