With the scalp of poor Mr Mike Pezzullo dangling from his belt, The Age/Sydney Morning Herald journalist Michael Bachelard continues to take a terrier-like interest in the Department of Home Affairs.
That’s not a bad idea for the Department, constructed as it is to fail and fail continuously, deserves as much scrutiny as it can be given. Too much is barely enough, pace H G Nelson.
Thus Bachelard recently reported that a senior officer of the Department, described as its “cybersecurity guru” holds “a six figure shareholding in one of the country’s biggest tech supplier companies, CyberCX, a major contractor to government departments including his own.”
Bachelard also reports that the officer was an “executive director” for CyberCX from 2019 to 2021” having previously been “a senior adviser to former prime minister Malcolm Turnbull” where, upon other things, he advised on, wait for it, ”cybersecurity”.
While a useful reminder to Home Affairs that while it watches others, it also is being watched, Bachelard’s story lacks the vim of his reporting of the Pezzullo-Briggs correspondence with its gruesome denouement. Indeed, the CyberCX shareholder yarn looks much like a slow day in the media world.
As Bachelard notes the Public Service Act “code of conduct” contains provisions dealing with conflicts of interest. Moreover, the Department of Home Affairs has exemplary procedures for the declaration of all sorts of conflicts of interest, even including “romantic” ones. And Bachelard lets his tyres down by reporting that the CyberCX company told him that “It is our understanding that Mr Anstee fully disclosed his shareholding to the Department of Home Affairs upon commencing employment…and has not had any involvement in any tendering or contracting awarded to CyberCX by that department.”
Bachelard’s report ends with the limp observation that when the CyberCX shareholder “joined Home Affairs in 2021, he was quickly promoted by the then departmental secretary Michael Pezzullo into senior cyber and technology positions.” Well, why not?
Still, Bachelard’s yarn hints, whether intentionally or not, at a serious question to which he might like to turn his inquiring mind: that is, is the current legal and administrative framework for regulating conflicts of interest in the Commonwealth public service up to the job?
That framework essentially consists of a statement of values, employment principles and a code of conduct that are expressed at a high level of generality in the Public Service Act. Those provisions can be augmented at a departmental level by administrative procedures, as they are in Home Affairs. This edifice is supported by disciplinary provisions in the Public Service Act within which alleged infringements of the code can be considered.
The system is based on principles and its effectiveness relies to a great degree on staff being “good chaps” who, when it comes to conflicts of interest, will make proper declarations and then have them appropriately managed including by, at the extreme, requiring interests that otherwise can’t be resolved to be divested. How that might play out with “romantic” conflicts in Home Affairs doesn’t bear thinking about.
Over the last 40 years or so in the Commonwealth this principles-based system has replaced much stricter and prescriptive primary laws that avoided conflicts by prohibiting the holding of interests that could be troublesome.
Yet prohibition was arbitrary, unreasonable and often unfair. It’s better as a last resort rather than a first one.
Still there’s a question about whether the regulation of conflicts of interest in Commonwealth employment should be made a more prominent and prescriptive part primary law, say in the Public Service Act.
Let’s take one example of seeming failure of provisions without specific legal backing. Following the Bowen Committee report on public duty and private interests in the late 1970s, administrative procedures to avoid conflicts of interest in post separation employment by public servants were introduced. They worked for a while but they now seem to have almost wholly withered on the vine.
In recent estimates committee hearings Senator Barbara Pocock quizzed a Defence Department Associate Secretary about the handling of potential conflicts when defence staff departed to work with consulting firms. The answers were that Defence does “not track former employees” and that “the obligation is on the individual, not the department.” The Secretary of the Defence and the Chief of the ADF sat by mute as this dispiriting evidence was given.
While individuals certainly have obligations, so do departments. When any of their staff leave to work for a private company where, for example, they might take special knowledge with them, including in relation to specific contracts, that would give unfair advantage to their new employer, departments, even Defence, should track them. They should find out what that employment is and, if necessary, seek undertakings from the new employer that those former personnel would not be engaged in any activities that would give rise to conflicts of interest real or apparent. That’s what the Bowen procedures did but they seem not to have been able to survive in the grand modern age of integrity.
It is disappointing that the question about the adequacy of a principles based approach to conflicts of interest and whether it should be reflected in primary law hasn’t appeared in the rhetoric or reality of those now trying to deal with public service “reform”.
The best they’ve been able to do is to come up with the looney notion that “stewardship” should be a “value” in the Public Service Act.
At a recent seminar on “integrity” the Public Service Commissioner, Mr de Brouwer, said that Government intended to add “stewardship as a value to make clear that all public servants have responsibility and a role to play in making sure their workplace is effective”. Another speaker at the seminar enthused that “Stewardship is very much around breaking down power imbalances…and it means you have to be deeply committed to the values, principles and purpose of the organisation.” So what is it? In the confusion there should be freedom to take “stewardship” to mean whatever you wish.
Making “stewardship” a “value” is the product of magical thinking sustained by hot air.
Stewardship is not a value, it’s a basic function of Ministers and senior management. Now the Government is proposing to delegate that function to junior staff so they can take the rap and be disciplined for things over which they have no control. “Stewardship” is concerned with ensuring that departments have adequate resources, structures and operating procedures to do their jobs, things which are beyond the power of junior and middle ranking staff.
Those responsible for trying to improve the public service should retreat from irresponsible fantasies about “stewardship” and give sustained attention to whether the regulation of conflict of interests needs to be better expressed in primary laws. It’s likely they should be.
Paddy Gourley is a former senior public servant.
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