Refer the Public Service Act Amendment Bill to a Senate Committee

Jun 22, 2023
Australian Government meeting. Map of Australia on the round table.

Last Thursday (14 June), the Government tabled its Public Service Act Amendment Bill 2023 in the House of Representatives. The Bill is almost exactly the same as the exposure draft which was released by the Department of Prime Minister and Cabinet on 22 May with consultation ending on 31 May.

Because there have been no substantial changes, my recent comments on the exposure draft apply equally to the Bill. Those comments evidently had no impact on the Government or the APS leadership, but I remain hopeful that they will be considered seriously by the Parliament. Let me therefore highlight my main concerns and provide some additional comments on the Bill’s provision for an ‘APS Purpose Statement’.

Thodey’s central reform recommendations are missing

Prior to the election, the Labor Party committed to revisiting in Government the recommendations of the Thodey independent review of the APS which the Morrison Government rejected. Amongst these were a number of changes to the PS Act that are not included in this Bill, including:

  • Strengthening the powers of the APS Commissioner;
  • Clarifying the distinct roles of the Secretary of PM&C and the APS Commissioner;
  • Strengthening the merit-based processes for secretary appointments and constraining the capacity of the Prime Minister to terminate appointments;
  • Consulting the Leader of the Opposition before the appointment of the APS Commissioner.

Perhaps the Albanese Government is still considering these recommendations, awaiting the reports of the Robodebt Royal Commission and the Secretaries Board’s Integrity Taskforce (whose terms of reference include ‘Governance and leadership (including the roles and responsibilities of oversight bodies, Secretaries and Public Service Agency Heads and the APS Commissioner)’).

If so, would Minister Katy Gallagher or Assistant Minister Patrick Gorman please publicly make this clear. In the absence of such clarification, surely the public – and the Parliament – must assume the Albanese Government has rejected these recommendations despite the pre-election criticism of the Morrison Government’s response. At least we know what the Morrison Government’s view was and why.

The Explanatory Memorandum claims the Bill will ‘reinforce the apolitical role of the APS’ by making explicit that ministers must not direct agency heads on individual employment matters. However, I have not been able to discern how the proposed new wording strengthens the existing s19 which states that:

‘An Agency Head is not subject to direction by any Minister in relation to the exercise of … powers under section 15 (the Code of Conduct) or Division 1 and 2 of Part 4 (relating to APS and SES employment) in relation to particular individuals,’

At most, the proposed new wording is simpler. But if the Government seriously wants to reinforce APS non-partisanship it must act on the Thodey recommendations listed above.

Some provisions are worthwhile

I am not opposed to everything in the Bill. The provisions that require regular capability reviews are worthwhile (noting that Morrison agreed in 2019 to re-establish such reviews), and the provisions allowing the Secretaries Board to commission ‘insights reports’ will draw on recent NZ initiatives to give more emphasis to longer-term policy analysis.

Others should be firmly rejected

The Bill would add ‘stewardship’ to the APS Values. I have always strongly supported the 2014 addition of ‘stewardship’ to the responsibilities of secretaries and the Secretaries Board; it should also be added to the responsibilities of the SES. But it is not a value that every APS employee is in a position to uphold; but failure to do so would be a breach of the Code of Conduct!

What is required (and Thodey recommended) is a more thorough reconsideration of the APS Values. Such a review might not only restore the central role of ‘merit’ but also provide a clear framework for distinguishing between the core (Westminster) values of the public service and those which ministerial staff, other staff of MPs, the Parliamentary Service and other groups of public sector employees should be required to uphold.

The Bill would also require agency heads to create a work environment that enables decisions to be made by APS employees at the lowest appropriate classification. Is this really a matter for legislation rather than just good management? Could a public servant pursue through the law a complaint that someone more senior had taken a decision?

An ‘APS Purpose Statement’

I have always thought the Thodey recommendation for a ‘unifying’ purpose statement to be superfluous. s3(a) of the PS Act sets out the first object of the legislation, ‘to establish an apolitical public service that is efficient and effective in serving the Government, the Parliament and the Australian public’; this, together with the APS Values, is surely sufficient. But on looking at the proposed provisions, I fear that such a statement is not just superfluous but could cause serious problems.

The Bill would require the Secretaries Board to ‘cause a written statement that sets out the purpose of the APS to be prepared’, allow the Board to vary the statement, and require the statement to be reviewed every five years after consultation with both the public and the public service. While the statement must not be inconsistent with the APS Values or the APS Employment Principles, whatever it contains, all agency heads would be required to uphold and promote it.

That sounds to me like a blank cheque in the hands of the Secretaries Board: surely any purpose statement should be authorised by the Parliament. Experience also suggests that the Secretaries Board may be strongly influenced by the Government of the day (particularly if the chair, the PM&C Secretary, is closely associated personally with the Prime Minister).

Even a benign interpretation raises questions. Do we really want a purpose statement that is subject to change every five years? Is it appropriate to require every agency head – from the ACCC to AIATSIS to Defence to APVMA – to promote and uphold some statement that goes beyond s3 of the Act and the APS Values and Employment Principles?

Frankly, I don’t know what the Government (or Thodey) has in mind. Maybe the current Secretaries Board should issue a draft so we can see what such a statement might look like today. That might also reveal the potential dangers around some future statement under a different regime.

Conclusion

Two things are now needed:

  • Clarification from the Government as to whether this represents every change to the PS Act that the Government is considering, or whether other Thodey recommendations are still genuinely on the table; and
  • Careful consideration of the Bill by the Parliament, including through referral to a Senate Committee once it has been debated in the House of Representatives: these issues are far too important for the future of the APS to be rushed through.

 

Republished from The Mandarin June 19, 2023

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