Serious reform now firmly on the agenda

Nov 13, 2023
rubber stamp with the word reform stamped on kraft paper envelope.

The good news from Katy Gallagher’s second progress report on APS Reform presented at ANU last week is that there will be a second Public Service Act Amendment Bill in the new year containing much more substantive reform than the disappointing Bill before the Parliament at the moment.

There should be real comfort in her concluding words that she had been listening to ‘calls for faster change and a focus on permanently enshrining more reform elements in a legislative reform package’, and that she always reads these opinion pieces and listens to these voices with respect.

The main point I made in my evidence to the Senate Committee inquiring into the current Bill was the absence of a commitment to legislative reform that would address the substantive issues raised by the Thodey Report and the Robodebt Royal Commission. Vague references to further ‘tranches’ of reform omitted any commitment to more legislation. At long last we now have that.

Gallagher announced that the next stage of legislative reform will address:

  • Processes for the appointment of secretaries, requiring the Secretary of PM&C and the APS Commissioner to apply merit-based rigour in their advice to the Prime Minister;
  • Publishing the performance management framework for secretaries including for better management of sustained under-performance, with appropriate consequences;
  • Transparency and consistency in the appointment, performance management and suspension of other agency heads (executive, statutory and non-statutory), with merit-based appointments and the power to suspend with or without pay and to impose sanctions for breaches of the Code of Conduct.

The new legislation will also address relevant recommendations of the Robodebt Royal Commission:

  • New own-motion powers for the APS Commissioner to initiate reviews and investigations into Code of Conduct breaches by agency heads (including secretaries) and APS employees;
  • New powers to investigate alleged Code of Conduct breaches by former agency heads (including secretaries) to match the provisions for other APS employees; and
  • Safeguards for the appointment of the APS Commissioner given these new powers.

A separate detailed response to the Royal Commission will be made later.

The legislation will also address the recommendations of Lynelle Briggs’ report on board appointments which is now before the Government.

This is a good start, but I hope the minister will keep listening to external commentators and provide the opportunity for consultation on the details.

In particular, I hope the Government will consider more radical option for secretary appointments and tenure. My strong preference is to return to the 1980s Hawke Government model (with no formal term appointments and with the APS Commissioner and PM&C Secretary using best endeavours to find suitable APS positions for secretaries displaced or completing five years in a particular role). It would then be appropriate to review secretaries’ remuneration and the 20% increase provided in the 1990s for loss of tenure (that, I suspect, would be widely welcomed by the public and the Parliament given current eye-watering pay levels).

I also hope there is willingness to add to the agenda for legislative reform.

The APS Values need more fundamental revision than the current Bill’s addition of ‘stewardship’. Robodebt revealed a lack of appreciation that the APS serves the public and the Parliament as well as the Government. To make that more clear, and to better reflect Westminster principles, the APS Values should more closely relate to the key relationships the APS must have with the elected Government, the Parliament and the Australian public, and in the workplace. This would involve reintroducing ‘merit’ as the centrepiece of APS workplace relations (the original 1854 Northcote Trevelyan Report civil service principle) as well as highlighting commitment to serving the public (perhaps using the NZ phrase of ‘spirit of service’) and the need for impartial or fair and inclusive administration. Such an approach would also explicitly recognise the democratic principle of responsiveness to the elected government, delivering its policies and programs.

This approach would also facilitate articulation of the equivalent values for ministerial advisers and legislating of a code of conduct for them as recommended by Thodey (and the Jenkins Report on parliamentary behaviour) and endorsed by the Royal Commission.

I remain of the view that ‘stewardship’ should not be included in the Values but perhaps that is a lost cause now. At the very least, the proposed performance framework for secretaries and other agency heads should highlight their stewardship responsibilities, and not leave responsibility to more junior APS employees with no means to be genuine stewards of APS capability.

Other matters the new legislation should address include:

  • The use of consultants and contractors (and labour hire);
  • Remuneration principles and processes;
  • Classification controls, including with regard to SES positions;
  • Post-separation employment.

To be fair, the Government has made some good progress, particularly in abolishing ASL caps and reducing the use of consultants and contractors, in promoting evaluation and towards merit-based appointment processes (though not yet in legislation). Also in establishing the National Anti-Corruption Commission.

But as Gallagher herself noted, this is a once-in-a-generation opportunity for reform and it must not be missed. She may be right that not everything can be done at once; she is certainly right that it is equally important to do things well. The criticism of tardiness does have substance, however; but more important now is the quality and comprehensiveness of the reforms.

 

First published in The Mandarin November 8, 2023

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