Integrity

Trust, Service

& Accountability

Behaving Ethically

Good Practices for engagement with Ministers’ offices

“The principle of frank and fearless advice is an important tenet of the Westminster system of government.  It requires public officials to give advice that is forthright, non-partisan and does not gloss over possible negative outcomes.” [1]

The purpose of such advice is not to limit the Minister to the Department’s or agency’s recommended position, or to anticipate ‘what the Minister wishes to hear’, but, rather, to advise, with transparency and accountability, on the full range of evidence-based, lawful options and to provide the information necessary for the Minister to make an informed decision.

It is entirely proper – and, indeed, expected – that the Department or agency will recommend one option over the others, after outlining the pros and cons of each. The Minister may accept the recommended option, or reject it and choose another, subject to any legislative constraints.  Further or more detailed advice from the Department or agency may also be requested to assist the Minister’s decision making.

The NSW Ministerial Code of Conduct states that “a Minister who seeks advice from a public service agency that is subject to the Minister’s direction must not direct that agency to provide advice with which the agency does not agree”. However, the code also makes it clear that a Minister can discuss or disagree with advice; make a decision contrary to advice; and direct an agency to implement a decision, whether or not the agency agrees with it.

When advice or information has been considered and a lawful decision made by the Minister or Cabinet, it is the responsibility of the agency to implement that decision diligently and professionally.

The following Good Practices are intended to assist Departments and agencies to resolve some issues that may arise during their engagement with Ministers’ offices.


[1] Independent Commission Against Corruption, Reducing the opportunities for corruption in the state’s management of coal resources, October 2013 www.icac.nsw.gov.au/component/docman/doc_download/4209-reducing-the-opportunities-and-incentives-for-corruption-in-the-states-management-of-coal-resources-oct-2013

 

Issue: Rejection of Department or agency advice

Carefully prepared advise and recommendations developed by the Department or agency are rejected by the Minister.

Westminster Principle:

Ministers and Cabinet decide policy under the Westminster System. They can accept or reject the advice of an agency, subject to any legislated constraints. After advice has been considered and a lawful decision has been made, it is the responsibility of public servants to implement the decision of the Minister (or Cabinet) in ways that are consistent with the legal and ethical obligations of public servants.

Good Practice:

Recommended Approach

Department/agency to provide well researched, professional, apolitical advice to Ministers which is in the public interest, transparent and can be supported by evidence.

Employees to:

  • Document reasons for the Minister’s decision, if available
  • Discuss the matter with their manager
  • Provide supporting material to their manager, if required.

Managers to:

  • Review advice provided to the Minister and discuss with employees
  • If appropriate, consider raising the issue with senior management or the Minister’s office
  • Reassure employees that they provided professional and appropriate advice and their efforts are appreciated
  • Update employees on the progress of higher-level discussions, if possible.

Senior management to:

  • Discuss the reasons for the decision with the Minister or Chief of Staff including implications for policy direction and expected outcomes
  • Reassess agency programs and priorities
  • Initiate improvements for engagement with the Minister’s office, if required.

Issue: Direction of agency employees

Ministerial staff seek to direct Department/agency employees, rather than make requests as per the established convention.

Westminster Principle:

Public servants are under the direction of their Department/agency head and cannot be directed by ministerial staff. This is a standard included in the NSW Office Holder’s Staff Code of Conduct.

However, employees have a clear duty to respond promptly and professionally to Ministers’ requests for advice or information. In practice, many such requests are made on the Minister’s behalf by ministerial staff. Requiring all requests to be made through the Department/agency head would be impractical, inefficient and an impediment to good government.

Good Practice:

How such requests are handled will vary from organisation to organisation, issue to issue, and with the experience and seniority of the employees involved.

Departments/agencies should therefore:

  • Provide guidance on when a formal process is mandatory or recommended
  • Encourage employees to discuss any concerns
  • Stress to employees the importance of good record keeping , documentation and of keeping managers properly informed
  • Select employees who are able to exercise sound judgment and common sense in high pressure-situations.

The following suggestion is intended for situations where an employee is uncomfortable with what they have been asked to do by ministerial staff, perhaps because it does not appear to be consistent with the Department’s or agency’s policies, announcements, timeframes and/or the employee’s obligations under the Ethical Framework.

Recommended Approach

Department/agency to have agreed protocols for transparent working relations with the Minister’s office.  This should include actions to be taken by employees when directed by ministerial staff.

Employees to:

  • Seek (or confirm) the request in writing, for example, in an email
  • Discuss the matter with their manager.

Managers to:

  • Assess the circumstances of the request - particularly the level of urgency – and discuss with employee
  • If warranted, ask ministerial staff to make the request via the Minister to the Secretary or agency head
  • Ensure appropriate contact officers appear on documents to the Minister’s office
  • Consider being the contact point on the issue in question
  • Raise the issue with senior management
  • Update relevant employees on the progress of higher-level discussions.

Senior management to:

  • Ensure there is an agreed written protocol for transparent working relations between the Minister’s office and identified agency contacts
  • Ensure employees are aware of protocol arrangements and delegations
  • Ask that the Minister’s Chief of Staff ensure incoming ministerial staff are aware of the established protocols
  • Review protocols and initiate improvements for engagement with the Minister’s office, if required.

For a practical example of how these principles may operate in respect of directions to agency employees, see the ethical scenario ‘Direction by ministerial staff’ page.