The government’s response to the Briggs review abandons legislated reform and leaves ministers wide discretion over appointments across the commonwealth.

Former APS Commissioner, Lynelle Briggs, was asked in early 2023 to review the appointments process for government boards. The Government’s response, finally announced last week (with the release of Briggs’ report), effectively rejects every substantial recommendation, providing cover for political appointments to all Commonwealth public offices including departmental secretaries, other agency heads, statutory office-holders, as well as Government boards.

The Government’s response includes the release of its Australian Government Appointments Framework, covering not only board appointments but all Commonwealth public offices.

The response also rejects Briggs’ firm recommendation of legislation – required ‘to rebuild trust and embed integrity’ – and relies instead on this policy framework, the sort of convention Briggs firmly rejects. Such unlegislated conventions, she states, only continue the practice of ministers from both major parties repeatedly saying ‘that the other side will do it when they get in’.

In the absence of any Government-initiated legislation, Sophie Scamps needs to reintroduce her impressive ‘End Jobs for Boys’ bill she introduced into the Parliament in 2023, perhaps after further discussion with other Crossbench MPs and even Liberal Party MPS, to allow the Parliament to consider genuine and lasting reform.

With one critical exception, Briggs’ key recommendations make a great deal of sense:

• A framework for appointments set out in legislation.
• Potential board vacancies notified publicly on a regular basis in advance.
• Ministers and officials determining the range of skills, expertise, experience and diversity relevant to the scope and responsibilities of the role to be filled.
• Ministers advising officials about the names of people they would like considered as part of the competitive recruitment process.
• Independent assessment panels advertising board positions on a central government site, and using other mechanisms such as executive search to find the widest choice of suitably qualified candidates.
• Panels excluding candidates with a conflict of interest which cannot be managed, and determining whether the field is sufficient to enable a good appointment to be made.
• Once a quality field is obtained, panels assessing the candidates in a competitive process.
• Panels providing written recommendations to the minister with a short list of highly suitable candidates and suitable but not recommended candidates.
• Ministers being able to meet or converse with the recommended candidates to give ministers confidence that they are suitable and can work constructively with the Government.

The critical exception is Briggs’ next recommendation: that ministers in taking a decision about who to appoint, or who to recommend to the Cabinet to be appointed, may still make direct appointments not based on the independent panel’s assessments and recommendations.

While Briggs recommends that such direct appointments would require explanation to the Prime Minister of the reasons, and a public explanation when announcing the appointment, experience with ABC and SBS appointments under such a system shows that such constraints have limited if any effect.

The fact is government boards – whether managing companies or corporations or expert authorities – are appointed precisely so that they can exercise independence from politics, managing public resources for specific public purposes. Briggs is right to acknowledge that ministers need to be confident that they will work constructively with the government, but such confidence must not excuse appointments not based on proper assessments of suitability.

The new Australian Government Appointments Framework is far more permissive of ‘jobs for the mates’ than Briggs’ proposals. Not only does it not have the imprimatur of legislation but it meekly offers ministers a choice between three pathways that ‘will identify the best possible candidate for the position in a timely and cost-effective way’:

1. An open competitive pathway, with advertising only ‘proportionate to the role’, an assessment panel chosen by the minister and a suitability report identifying the largest possible pool of suitable (but unranked) candidates.
2. A closed competitive pathway, with individuals identified and approached to make an application or expression of interest, with the option of an assessment panel determined by the minister.
3. A direct pathway, where an identified candidate (or candidates) is approached by the minister, in relevant circumstances such as where a person is uniquely qualified, or found suitable for a previous appointment, or urgent or exceptional circumstances.

The framework contains a set of Appointment Principles, but there is little if any discipline evident to ensure they will be applied in practice. The principles also include escape provisions such as ‘when appropriate and proportionate, ministers should use independent assessment panels to identify suitable candidates’.

Diplomatic appointments are specifically excluded from the framework’s coverage. At the very least, there should be a ceiling on the number of such appointments made outside the normal APS merit-based processes determined by the DFAT Secretary.

Briggs also recommends legislating a series of ‘core operational standards’ for government board appointments. These seem to resonate with the duties of ‘accountable authorities’ under the PGPA Act and the APS Values under the PS Act. As such, they may offer a better way to ensure more coherent values and standards than Senator Gallagher’s longstanding suggestion of just extending coverage of the APS Values beyond the APS.

She also recommends an external performance review process for boards every five years enabling ministers and departmental secretaries to be alerted early about issues and, with the support of the APS Commissioner, address individual board member performance including through dismissal. The government’s new framework includes reference to board performance but with no process outlined – perhaps that will be in the supporting guidelines which eventually emerge.

Briggs recommends that the APS Commissioner assume responsibility for ownership or coordinating authority over board appointment processes. Disappointingly, but not surprisingly, the government’s new framework gives PM&C responsibility for advising the Prime Minister on the effectiveness of the framework, with the APSC only involved in developing guidance to support ministers and departments.

It is hard not to conclude that Senator Gallagher has been over-ruled by the Prime Minister and Cabinet colleagues on this most critical aspect of integrity in government – ensuring merit-based appointments across commonwealth government administration: for the APS including departmental secretaries, other agency heads, statutory office holders and government boards. Australia lags behind other countries in ensuring merit-based appointments – sadly, that has now long been the case and was not helped when ‘merit’ was omitted from the APS Values just over a decade ago.

While Senator Gallagher has told me that she still plans to bring forward a further ‘tranche’ of APS reforms in another PS Act amendment bill, the response to the Briggs report confirms that such a bill will not address the critical issue of secretaries’ appointments and tenure, in my view a major contributor to Robodebt. The FOI amendment bill, (fortunately) languishing in the Parliament, also demonstrates a big gap between the government’s rhetoric on integrity and its actions.

While the crossbench has constructively highlighted this gap, perhaps the Liberal Party might now recognise the public’s desire for more action on integrity if the declining trend in trust in government is to be reversed. It might seriously reflect upon the causes of Robodebt that so damaged the Turnbull and Morrison governments, and look to take advantage of Labor’s poor performance in Victoria and NSW as well as the Albanese Government’s increasingly hollow claims of reform.