The experience of recent injuries to the pro-integrity culture in the federal public service are rather like sensations, in dream or reality, of rodents scurrying up the legs of one’s pyjama pants. Disconcerting, unwelcome and potentially eye-watering.
Against the dreary background of the Anti-Corruption Commission’s refusal to deal with cases referred to it by the Robodebt Royal Commission and the Public Service Commission’s inexplicable slowness in dealing with related cases referred to it, in June the Acting Auditor-General turned up the gloom with reports on a couple of little corkers.
The Department of the Treasury, a critical agency safeguarding proper use of taxpayers’ coin, was found not to “have developed an evidence based assurance framework that considers gifts, benefits and hospitality.” No surprises then when the Auditor found the Department guilty of twelve counts of “non-compliance” with policies and procedures on the giving and receiving of hospitality. The Department had been taking it and dishing it out improperly.
The Department of Defence was next in the Auditor’s line of fire. She found its “management of probity [on a billion dollar plus munitions contract] was not effective” and “there was evidence of unethical conduct.” No independent probity adviser was appointed and a defence official solicited gifts of grog in exchange for removing the contract from a “projects of concern” list. A Defence official involved in the project joined the sole source supplier in April 2019 and the contract was settled in July 2020. It is not known if the officer’s case was considered in accordance with post separation employment procedures.
Perhaps these are isolated incidents misrepresenting the vistas of pro-integrity in the federal public service. It’s hard to tell though because the key responsible agency, the Public Service Commission might not have much of an idea if another Auditor-General report in June is anything to go by. It found that the Commission:
- “was partly effective in its administration of its statutory functions relating to upholding high standards of integrity and ethical conduct” in the public service
- “could not demonstrate or provide assurance on whether its activities relating to integrity functions was well directed and fully effective”
- was “partly effective” in promoting the values and code of conduct in the Public Service Act
- did not have a sound basis for monitoring and evaluating the extent to which agencies incorporate and uphold the Act’s values, and
- had “no documented strategy” to support “functions relating to stewardship”, a value that has been now foolishly imposed on all staff.
If the Commission were in a contest for a contract, it would be wise to try to keep the Auditor-General’s report on its integrity responsibilities as sub rosa as possible, if that can be forced logically to compute.
Without the Public Service Commission breathing down their necks on integrity are agencies being commensurately insouciant about their responsibilities? That may be moot but the history of the last 10 years, and not just Robodebt, and June stories from the Auditor bring along that old dead cat whiff.
Thus, it reasonably can be asked if the present legal frameworks dealing with the behaviour of public servants are sufficiently robust. This question has been very pertinently raised by former Public Service Commissioner, Andrew Podger in his comprehensive discussion paper on possibilities for further legislative reform of the public service. The discussion paper says “It might legitimately be wondered…if the Values, Employment Principles and Code of Conduct in the Act are all that is necessary to maintain a flourishing integrity culture.” The answer to that question is likely “No”.
Over the last 50 years there has been a gradual move from regulating the behaviour of public servants by prohibiting certain activities. In tune with the times, systems have been made more permissive relying on values, codes of conduct and guidelines about what should and should not be done. For example, management has been given a more passive role with responsibility being put on individuals declaring conflicts of interest and having cases treated on their merits There’s much to be said for that as it was convincingly advocated by the so-called 1979 Bowen Committee report on public duty and private interests, the Bible on the subject that is no doubt consulted by departmental secretaries on a daily basis.
But the permissive system may have been based on too optimistic an estimate of goodwill, in particular the willingness of individuals to declare conflicts of interest. And that may not have been helped by guidance from the most senior levels of management. For example, a year or so ago, the Secretaries Board launched with a flourish an ill-devised “Charter of Leadership Behaviours” that said nothing about the admittedly scanty conflict of interest provisions in section 13 of the Public Service Act. It weakly advised managers to “accept people won’t always get it right and support them to bounce back.” Unfortunate signalling to say the least.
So it should not be a matter of great wonder that administrative procedures on avoiding conflicts of interest in post separation employment, for example, appear to have withered away.
Podger’s paper proposes that the Public Service Act be amended to provide specific provisions for regulating conflicts of interest with post separation employment along the lines recommended by the Bowen report. These procedures should not seek to interrupt movement of public officials to other forms of employment because, as some foolishly fret, they are “monetising” their experience. That happens all the time and it helps to make the world go around. But there should be legislative provisions to avoid conflicts of interest that rule out the possibilities, for example, of firms getting an unfair advantage in competition for government business by recruiting officials with special knowledge unavailable to others. It would appear that at the moment a blind eye is being turned to these ills.
Further, if public servants cannot generally be relied upon to declare the acceptance of gifts and hospitality related to their official duties, then maybe it’s time to turn the clock back and prohibit them from doing so by primary law. That would be tough, and awkward when it required them somehow or other to pay their own ways at certain events. But if the public cannot have confidence in their willingness to declare these benefits, then they have every right to require sterner disciplines.
There are no signs the government is considering such matters. Indeed, there are no signs of delivery on the Public Service Minister’s undertaking at the end of last year for a further “tranche” of public service legislation. At least plenty of grist is being left for the mills of the Auditor-General. Where would we be without her?