The Robodebt Royal Commission has shown that the Australian Public Service is at a crossroads. It can be a professional and ethical APS that serves the public interest through the government of the day. Or it can be an overtly politicised service, little different from the staff in ministerial offices. What must not persist is the stealth service, where the pretence of a professional public service masks spineless servility and outright capture.
For more than 25 years, the integrity of the APS has been increasingly at the whim of the government, and it requires a mighty power to correct that.
Top levels in significant areas of the APS were shown to be spineless, intimidated and, in some cases, captured by key ministers.
Cowardice, sycophancy and self-interest all played their part in the robodebt travesty. But they share a common source – the power imbalance, insecurity and low esteem experienced by public servants in dealing with politicians. For evidence, look no further than the denigration that often goes on in Senate Estimates Committees.
The lack of tenure, driven by short term contracts of Secretaries and SES officers, compounds the problem massively. These are smart people in their 40’s and 50’s, on attractive remuneration. But they are also usually loaded up with the debt common to such a high achieving aspirational cohort at the height of their powers, and they are, in effect, dismissible at will, with 3 months’ pay, if a minister or Prime Minister takes umbrage.
Who among such vulnerable people would hear a reincarnation of Gough Whitlam or Malcolm Fraser saying, “I don’t want to hear what you’ve got to say”, and like Tony Ayers reply, “Prime Minister, I am not here to tell you what you f…ing want to hear. I am here to tell you what you f…ing need to hear”; or more politely but more ominously, like Fred Wheeler, “Prime Minister, you must listen to me. I am drawing to your attention facts your ignorance of which will bring you down”. (Jack Waterford, The Canberra Times, April 15, 2016)
What is it a minister would likely take umbrage at? Not discourtesy; they almost never encounter that. No, what rankles is frank and fearless advice, independent critical thinking, evidenced-based scepticism in the face of political assertion, and a refusal to be intimidated by the “Don’t you know who I am?” attitude.
Yet these are the public servants who, from an impotent and insecure base, and subject to whatever undue influence is brought to bear, prepare the Cabinet submissions for a cornucopia of strategic decisions: on billion dollar expenditures, on Budget decisions affecting millions of Australians, on legislation, on judicial appointments, on defence and foreign affairs, and on a vast range of public sector appointments and sinecures.
There is nothing in the senior employment and operating practices of the APS that will prevent a future collapse of public service professionalism and legality when the APS is again faced with ministers of the same ilk as those in recent governments.
The long term solution should lie in the very institution that one might have expected to be the defender of public service integrity and professionalism, the Public Service Commission.
However, although presumptively important, and enjoying a tenure that only Parliament can terminate, in practice the Commissioner doesn’t have a defender function and lacks real standing, power and influence.
Remedying senior level insecurity of tenure is complex though not insoluble. But what is also needed is a Public Service Defender, appointed and empowered on the same basis as people who actually matter.
In other words, a person appointed by the Governor-General, on the recommendation of the government, having been chosen from a slate of 3 or 4 candidates recommended by a bi-partisan Joint Committee of the Parliament, following public advertising of the position and a selection process. A non-renewable tenure of 7 years would straddle successive administrations, and such a person would only be removable by resolution of Parliament for proved misbehaviour.
Why such arrangements? Because only such a person could offset the power imbalance in giving frank and fearless advice about the behaviour of ministers and their private office apparatchiks in dealing with the public service.
Only such a person would have the standing to receive and act on complaints or evidence of ministerial intimidation, bullying and undue influence, and report them to the Minister, the Prime Minister and the Parliament.
Only such a person would have the role, capacity and authority not only to defend the senior ranks from mistreatment but also ensure that Secretaries and the senior ranks themselves uphold professionalism and the rule of law.
Malpractice, abuse and illegality, whatever their origins, corrupt the processes and integrity of the public service, undermine responsible Cabinet government and ultimately jeopardise the rule of law. Only a mighty response will prevent that recurring.
Peter O’Keeffe
Peter O’Keeffe is a lawyer with a long-standing interest in hospice and palliative care.
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