The probity standards public servants walk past are the ones they accept

Jun 1, 2021

Phil Gaetjens is not the only senior public servant who can be relied upon to see things in the government’s eyes, even when being asked for an objective opinion. There’s all too much advice coming to government which is masquerading as independent judgment but has merely been pre-arranged to appease, to the point where some “independent” reports are being reworked in minister’s offices.

Generally, the quality of public service reports is higher. But there have been occasions when public servants purporting to act independently have shown a remarkable attraction to some particularly unsuitable consultants, virtually guaranteed in advance to deliver the result the government wanted. The reputation of senior public servants in Finance – indeed the reputation of the department itself – was seriously affected by a major error of judgement in selecting a law firm to pass judgement on the conduct of minister Michael Sukkar. Before going into politics, Sukkar had worked for that very firm.

If the department of Finance – the supposed guardian of public money, proper process and adherence to the spirit and letter of the law – now sets such slack standards, one must wonder whether we have a system of constitutional government at all. It is badly in need of better leadership, and it seems clear that this is not going to come from the minister. As General Dave Morrison once said the standard you walk past is the standard you accept.

In more recent times, Phil Gaetjens accepted another prime ministerial brief quite unsuitable for a person in his office – of establishing just who in the PMO knew or was in any way involved in the aftermath of an alleged rape in the office of the then Minister for Defence, Linda Reynolds, before the May 2019 election. It was more unsuitable for him because of his past direct association with the PMO.

Even before a mysterious conversation with the “independent” AFP Commissioner, Reece Kershaw, brought the investigation to a temporary halt, Gaetjens did not appear to be treating this investigation with any great urgency, a matter that very much suited the interests of the government of the day. After some delay, the investigation seems to have resumed, if with the same glacial pace: Gaetjens, for example, has yet to interview the complainant. This week in the Senate, he refused to say which members of the PMO – or other parties – had been interviewed. This was, it seems, on privacy grounds.

At the same time a closely associated inquiry by the chief of staff of the prime minister, Dr John Kunkel was sadly reporting that no member of that office would own up to having backgrounded journalists with negative information about the alleged rape victim and her boyfriend. He could not find that anyone had in fact done so. Scott Morrison was quick to claim that this far-from-independent report making far-from-definite findings had “cleared” his office, and by implication himself, of suggestions that while he was expressing his well-known empathy to the victim, his henchmen were secretly defaming her.

Dr Kunkel’s inconclusive report contradicted by the evasive and dissembling face of the prime minister in parliament, as well as by his characteristic misrepresentation of its contents

No one would suggest that Dr Kunkel would suppress information presented to him on a platter by a very foolish PMO staffer, but no one imagines that the want of a positive result was in spite of a vigorous inquisition. One might assume, after all, that people so directly in the PMO’s employ would have watched him fudge, prevaricate, haver and dissemble about the question in a long series of question times. At the very least, these suggested guilty knowledge, and a marked unwillingness to look for any evidence not already drowned in Lake Burley Griffin.

Even with the minder system, senior public servants will inevitably be involved in giving governments close political advice. The duty and, one might say, the purpose of a secretary of PM&C is to help the government of the day succeed in its policy hopes and intentions, and if they do that well, a consequence may be that the government is re-elected. In this sense, the head of PM&C simply cannot help but be political, and with a focus, while the government is in power, of helping the government.

One can do all of this while being able and willing to serve a succeeding government in exactly the same way. In recent times, at least since the accession of Paul Keating as prime minister, it has become usual for a new prime minister to have a new secretary – if usually already a senior public servant – at his side. But even where the two have had some rapport and relationship – such as John Howard with Max Moore-Wilton, for example – this has not usually been seen as a directly “political appointment” in the manner of the US system when an administration changes. There was little doubt that Moore-Wilton, for example, preferred to serve Liberal governments and agreed with most of their policies, but he maintained proper distance, and was often critical of developments, for example about the activities of minders and ministerial staff. He was also conscious that he was, as head of PM&C, de facto head of the public service, with a duty, along with the public sector commissioner, of preserving and defending its independence and its professionalism. That included, sometimes, defending the rights of public servants in conflict with the government, or organising exits that respected their rights.

Some would say that the greater the perception of political and personal closeness between a prime minister and his top public servant, the more careful both should be of offering or accepting tasks with the potential to cross the line that separates the public servant from the partisan. It is, for example, far from uncommon for governments to want short sharp investigations to repudiate public criticism of the way that something was done. There will be occasions when this might merit a public inquiry – even a royal commission. But there will be other times when a former judge, retired public servant, or distinguished citizen will be asked to review the materials, to advise government about the facts and to recommend where to go. The more independent the person conducting the review, the more detached they are from the important short-term tasks of government, the more cred such reports will have. Particularly if they are – as once most used to be – made public. Over the years, regular report writers with high cred have included Tony Blunn, Andrew Menzies,  Alan Hawke and Vivienne Thom. By contrast, many reports – these days often secret – from favourite government consultancies have had much lower status, if only for acquiring reputations of saying exactly what government wanted to hear. In some cases, significant sections of such reports have been rewritten, without protest, in ministers’ offices.

When prime ministers instead ask their most senior advisers to do reports they are, first, taking them away from day-to-day tasks of government, which involve not only seeking to achieve what the government wants but also the routine administration of the department and other roles implicit in the job. Second, the person in a continuous relationship has to weigh how a  frank and fearless report — often having consequences for ministers or the government’s standing — will impair capacity to provide routine advice, or even to help the government manage the politics of a situation before the report is received. In some cases, matters that officials can be asked to report on place a department’s interests up against the government’s political interests. All good reasons why a PM&C head should resist being personally drawn into handling inquiries or being asked, in a political context, to give the government of the day a clean bill of health. Martin Parkinson did considerable damage to his reputation among his peers by a tame report to Morrison pooh-poohing the idea that former ministers who went straight into lobbying were prostituting their former knowledge and access and in breach of even weak ministerial codes. Very useful for government, but hardly a ringing endorsement of standards.

Gaetjens is expected to retire this year. No doubt he will leave with high credit with coalition ministers whose interests he has served, mostly behind the scenes.  But the public will have less reason to know him. He has yet to deliver a significant public speech about anything, let alone about public service, matters of duty, professionalism, objectivity and independence of mind. There’s a good chance indeed that he will be chiefly remembered for using his office to wrongly let Morrison off the hook.

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