Frank and fearless in the Westminster system

TRANSCRIPT


9:30 am Friday 8 May 2015

Ms Belinda Clark
Victorian Public Sector Commissioner

The Hon Bob Debus AM
Graduate School of Government, former NSW and Commonwealth Minister

Mr Terry Moran AC
Chairman, Barangaroo Delivery Authority, former Secretary, Department of Prime Minister and Cabinet

Professor Anne Tiernan
Program Director, Graduate Certificate in Policy Analysis, School of Government and International Relations, Griffith University

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Peter Mares

In the report into the ‘Pink Batts affair’, the Royal Commissioner, Ian Hanger QC, concluded that, as Steve Sedgwick pointed out, that the Australian Public Service failed to adhere to the principles on giving advice that are laid down in the Public Service Commission Guidelines; particularly the principle that advice should be forthright and direct and should not withhold or gloss over important known facts or bad news. Mr Hanger contemplated the possibility that the loss of security and tenure in the public service may have contributed to this situation in which public servants now feel less able to give unpalatable advice to a Minister or in which briefs are procured to support a particular perceived outcome that’s already favoured by a Minister, and so on.

Now whether or not we agree with Mr Hanger QC, or whether we agree with the relationship that there was a link between tenure and lack of frank and fearless advice, his views do feed into a long running and sometimes contentious debate about whether this Westminster tradition of frank and fearless advice is under threat or in decline – not just from changes to public service employment settings, but from other factors such as the rise of politically appointed and politically motivated ministerial staffers, the impact of the nonstop 24 hour news cycle, and continuous campaigning, and so on.

So we’ve assembled an expert panel with a range of perspectives – including the views of experienced public servants, of a former Minister, and one of Australia’s leading scholars of government and public administration – to talk through these issues for you.

Terry Moran of course, Terry Moran I see is National President of the Institute of Public Administration Australia and has a distinguished public service career in Federal and State Governments having served both as Secretary of the Department of Premier and Cabinet in Victoria and as Secretary of the Prime Minister and Cabinet at the Federal level. And Mr Moran, Terry Moran wears many other hats, he’s Chair of the Melbourne Theatre Company, the Barangaroo Delivery Authority and, indeed, the Cranlana Programme, with which I’m associated.

Anne Tiernan is a professor in the School of Government and International Relations at Griffith University. She directs Griffith’s Executive Masters in Public Administration. She’s a faculty member with ANZSOG, the Australian New Zealand School of Government, and was for four years a member of the Board of Commissioners of the Queensland Public Service Commission. And Anne Tiernan has authored many books or co-authored many books, including most recently and very relevant to our purposes today, The Gatekeepers: Lessons from Prime Ministers’ Chiefs of Staff, co-written with R A W Rhodes.

The Honourable Bob Davis AM is a former State and Federal Government Minister. He was Federal Minister for Home Affairs in the Rudd Government. In New South Wales he served in many portfolios including Attorney General, Environment Minister and Finance Minister. Prior to entering politics he worked as a lawyer and as an ABC broadcaster.

Belinda Clark is the Inaugural Commissioner of the Victorian Public Sector Commission which was established, I think, just over a year ago now. Before taking up this role Belinda Clark held a number of senior Government roles in New Zealand including Secretary of Justice for more than ten years, and was the Inaugural Director of the Office of Treaty Settlements (a body set up to negotiate and settle Maori land claims). Last year Belinda Clark was made a companion of the Queen’s Service Order, a New Zealand Honours Award.

So please join me in welcoming our panel. And we’ll begin with this question: Is this public service tradition of frank and fearless advice in decline?  Terry Moran?

Terry Moran

To an extent it probably is because at the national levels since the '70s there’s been a steady decline in the ability of senior public servants to feel that they’re able to give advice and not suffer any consequences from a political level. But the decline is not so great as to be a source of really big concern. Other changes which have been mentioned include the spoils system that now operates around Ministers in terms of, again at a Federal level, about 500 ministerial staff, many of whom have no relevant experience of the business of Government or public policy and can create havoc in the relationships between senior departmental people and Ministers.

Peter Mares

I can see heads nodding around the room as you say this.

Terry Moran

It’s not the case in New South Wales. But putting that aside, there’s also a related question about the skills base in the public service. And so in one sense Australia is internationally notable because of the strength of the economic spaces for advice, not only in the national public service but also in many of the states and territories. But it’s become comparatively weak in terms of advice on, the latest approach to management, and what I would call strategic policy: which is, how do you think about changing over time the big systems that deliver services, particularly at State level?

Peter Mares

So you’re saying there that in areas like Treasury and Finance the level of knowledge and advice is still strong, but less so maybe in Community Services and, I don’t know, Environment or other areas, is that...?

Terry Moran

Well it’s not just Treasury and Finance, the First Minister’s Department has now got lots of economists or people with economic training in them and a number of other departments do as well. But in many other areas there are huge developments in management. For example in the last 20 years, and I’m thinking here particularly at Commonwealth level, have passed those departments by and they don’t think about what I call strategic policy in a very sophisticated, sort of, way. Therefore when they come to give advice it’s not necessarily as expert as it should be and it doesn’t necessarily justify a sort of a courageous, frank and fearless advice type approach, because often, in my experience, it’s poorly based on expertise.

Peter Mares

Thank you Terry. Anne Tiernan, is this tradition in decline, frank and fearless advice?

Anne Tiernan

Peter I think tradition is the key word. Westminster is a set of ideas, it’s a set of beliefs, it’s a set of practices about the way things work, about how relationships are supposed to work and I think there’s been a... I think the rules of the game have changed profoundly under some of the pressures that you raised. And I was thinking, whilst Steve Sedgwick was talking earlier, you know, centralisation around leaders, small group decision making, all these kinds of things have really put pressure on who’s involved in the provision of advice. And I think the rules of the game have changed in terms of the practice outstripping theory. So ministerial advisors don’t exist in constitutional theory. We don’t have a way of dealing with them really in practice except that people know they have to deal with them and they’re part of a very contestable system.

Peter Mares

Well there are questions around about whether they can be called before parliamentary committees for example. In theory they’re not allowed to direct public servants, but you know, in practice they often say I speak for the Minister. So you get those... well its confusion.

Anne Tiernan

That’s right and these are some of the complexities that kind of hand-tie us. But I think this, I think the idea that frank and fearless has diminished, you know, is kind of in some ways, you know, it’s a debate that we’ve not been able to cut through. We can’t go back to the way things were before, there’s absolutely no way we can go back to the way things were before. So how do we adapt our traditions and practices to address the dilemmas that are thrown up by the involvement of these new actors?

Peter Mares

Okay. Bob Debus?

Bob Debus

I agree that we can’t go back to way things were before and when I first thought of this question in the last few days I was reminded of a story that I was told by David Paul Landa, a Minister in the early Wran Government. When he went on a ministerial conference in Queensland the host Minister was a man called Russ Hinze – some of you are old enough to remember him – he found that the meeting was to take place on Hamilton Island and they were taken out in helicopters and when they got to the island there was a man with a clipboard asking if they wanted to do scuba diving or glass-bottomed boats. And then they went into the meeting and – it was a meeting of Environment Ministers – and Russ Hinze said, alright, he said, items one to 55, are there any comments?

And Landa, at the time the only Labor Environmental Minister in the country, felt a surge of panic and put up his hand. He said yes, we want to talk about the Murray Darling Basin and acid sulphuric soil, the state of national parks. And Hinze waited for a bit, and he called out to the back of the room and said, hold those bloody boats five minutes. And later he put his arm around Landa and he said, listen son, he said, that’s the sort of matter you should leave to the officers.

And although there may be some in the public service who would like to retreat to that time, in a sense it no longer exists. Indeed it seems to me that we constantly underestimate the complexity of the circumstances in which advice is given.

Of course I sympathise with all of those speakers who’d been telling you that you must exercise honesty and integrity against some kind of a background of understanding of public value. Of course you must, but I also understand that those principles are not much help without a context and the context is really complicated. This idea that people say the Ministers have decided something on the basis of the advice of someone is kind of just nonsense. It’s like, there is a massively complicated organism at work and New South Wales’ Government is much more complicated than BHP, I think, and you have to be able to master that complexity as you are providing advice.

Peter Mares

So the idea that there’s some golden age we can go back to is just not going to take us anywhere. We actually just have to deal with the complexity of the current situation. Belinda Clark what’s your take on this question?

Belinda Clark

Look it’s periodically raised and I was thinking for today and I thought I’d have to say that as far I’m aware the answer’s generally a no. I wouldn’t say there’s a discernible pattern of decline. I think these things ebb and flow a lot and are influenced by a lot of circumstances and some are to do with the capability and experience of the Ministers just as much as the experience and capability of the bureaucrats. So it’s a complex thing and I think there’s definitely ups and downs and different jurisdictions can be different, but overall I don’t think there’s a decline.

Peter Mares

Have you had the same debates in New Zealand?

Belinda Clark

Yes, and that’s partly what I’m drawing from, these experiences, thinking of times when there have been cases where individual Ministers have been extremely experienced in their portfolio on quite technical matters and so their inclination to take advice is relatively small, smaller than their colleagues. But it’s not necessarily, I think, a reflection of any dereliction of duty – they actually are very able. So I think we’ve just got to be careful and being too simplistic and saying it’s always bad if there’s a decline of influence.

I think the more important question is around capability and ethics. People have talked ethics, but some of the speakers have also touched on capability and Stephen whose speech said, you know, public servants pussy-footed around too much. They didn’t come out and say we can’t do it. Nobody actually said they actually can’t do it in the time available. And I think part of the ethical considerations is to have that honesty and not… and have the skill in expressing it. We do speak a lot of euphemisms and this is actually not fulfilling the duty, I think, to be frank and fearless.

Peter Mares

So perhaps one of the, sort of, capability skills that’s needed within the public service is clear writing in terms of, I mean, maybe George Orwell’s Five Rules for Writing, I always had them pinned up by desk at the ABC, but you know, to avoid euphemisms, to get the point, to be active in the language... I mean is that, is it something, is it a skill, is that an important skill to be enhanced?

Bob Debus

It sure is. I mean, in my experience of the public service, at Commonwealth level in particular in more recent times, is that some bits of it wrote letters that I couldn’t understand. They had that managerialese language in it which is actually a sophisticated form of avoidance of responsibility.

Peter Mares

So they were hedging their bets or they didn’t really know what they wanted to say or...?

Bob Debus

All of that.

Peter Mares

Terry do you want to... Terry Moran as a former public servant?

Terry Moran

I think, I think that’s true Bob and when I think back to my time, my third time back in Canberra recently, most of the Cabinet submissions, from a Minister’s point of view, would have been almost unintelligible. The body of the submissions would typically be very long in immensely dense conceptual prose without a great deal of clarity often as to what the essential issues were and I got a very capable First Assistant Secretary to work with, highly respected and a published author in fact on governance in corporations to try and come up a different way to do Cabinet submissions so that Minister would find it useful. And everybody agreed, but the system lapsed within a very short period of time into what it had always done. And so public servants are often their own worst enemy when it comes to these things.

Peter Mares

Belinda Clark you’re smiling at this story.

Belinda Clark

I think it’s an art like a lot of these things that we encourage people to tell the full story, the whole point of free and frank and frank and fearless is that it’s a full picture that you’re, you know, honour bound, duty bound to give your Minister the best advice. They which means they are prepared against unexpected risks, consequences, costs, trade-offs … it’s very important to give the full picture. And some of these examples are in things like rationing type situations on a health spend for example. But the trouble is in trying to give this full picture and saying that if Group A over here, this interest group, is going to be benefited in this way, but Group B, over here, will be disadvantaged – or whatever – in trying to encapsulate the complexity and the richness we often lose the actual direct meaning, as it’s been said.

And I know as Chief Executive, in former incarnations, that I’ve read briefs going to a Minister and I can’t understand and I’ve been supervising the work that’s gone into them. So that’s always the test: if you can’t understand them you’ve got to hand it back and say the Minister is busy, they do need to know about the complexity and nuance, it doesn’t mean you lose the nuance, but what exactly is it that we’re saying. And that is a test, so I’m just smiling at some of those recollections.

Peter Mares

Anne Tiernan?

Anne Tiernan

Well it’s just interesting I think, you know, Terry and Belinda and Bob make great points and a lot of them are actually pointing a problem of craft and, you know, this idea that people can adapt their briefing practices to the contemporealities and that they’re struggling with that and that then senior people are rewriting briefs because they can’t understand them and they’re doing them in the middle of the night and trying... and it’s all kind of getting centralised and there’s no feedback back to people about the advice isn’t useful and can’t be utilised. We’ve really got some pressure on the underlying craft of doing this work and I think that’s a more, I think that’s the debate we need to have actually.

Terry Moran

And I’d add one point to that, to an extent we’ve got out of the habit of putting options as to how you address a particular problem in many of the documents that are prepared for Ministers. It’s almost as if the people writing the document think well there is only one answer and it’s the one that I favour and that’s what the Minister is going to get. But along with frank and fearless advice went the notion of giving Ministers choice.

Anne Tiernan

Choice, that’s right... and I think, you know, empirically, you know, as a researcher it is incredibly hard to track down when a Minister gave the intimation they weren’t interested in have choices. So, you know, whether people are self-censoring or whether people, you know, are getting advice from, you know, some 12 year old, as it’s usually put by public servants….

Terry Moran

In many a ministerial staffer…

Anne Tiernan

That’s right. Between 12 and 18 depending on which jurisdiction you’re in.

Terry Moran

15 at least.

Anne Tiernan

They were your median age Terry. So I think, you know, I think it’s always hard to track that down. When we go looking for that it’s very hard to find.

Bob Debus

I mean, I should say that I think that it’s the responsibility of an effective Minister to try to make a culture, at least at the top of the department and in their own office, which leads to significant levels of co-operation. I don’t mean that they are not, that everybody’s behaviour is perfect in every circumstance; I only mean that there should be, as far as possible, a co-operative culture which recognises, something that’s been said often in this conference, that you can’t really separate the Minister and the leadership of a department in the construction and implementation of decent policy. I had something like twenty-five department heads and hundreds of senior officials when I was about. My relationship was not identical with any of them, but I think I only, I only couldn’t get on at all with a handful, and they were bastards.

Peter Mares

And I’m sure Bob Debus that you never raised your voice in any of these situations because you were always...?

Bob Debus

Well I don’t have answer every one of your questions.

Peter Mares

But your point here is that actually we need to, not just look when we’re talking about this idea of frank and fearless advice, we don’t just need to look at the public service we need to look at the Ministers and how well equipped they are, how well prepared. Anne Tiernan how well prepared are Ministers for their job and for understanding their role and accepting and encouraging frank and fearless advice?

Anne Tiernan

Sure, well I’m always glad when the demand side comes into the equation because it’s been the missing piece. It’s been the elephant in the room in public sector reform for the last 40 years: the role of Ministers. And the role of Ministers – they are under enormous pressure, I think. You know, how well prepared are Ministers kind of comes back to a couple of questions; one, what’s their parliamentary experience and if we look at Prime Ministers, recent Prime Ministers have actually had a lot less and more truncated preparation than maybe some of their predecessors. Is that relevant?  I suspect so.

Some of the people coming to the ministry have experience as ministerial advisors which gives them a particular view that may be a different view to what a Keating or a Howard might have had with them, a much longer tradition. It’s hard to generalise, but I think, and I also think it depends on the jurisdiction. But I do think that the rise of the career politician is relevant, maybe more relevant than we understood when we did the 2010 book, you know, Learning to be a Minister. Just because people are smart doesn’t mean they’ve thought about or have a framework for understanding Government.

And, you know, I would probably argue that we’ve got very clear examples of leaders who do not understand how to operate the machinery of Government, who haven’t thought about how they want to do that, and it’s no accident that they’re struggling and they’re failing.

Bob Debus

That’s true.

Anne Tiernan

And in some cases, or at least two recent ones, they’ve been one-term wonders.

Bob Debus

Because, I don’t at all mind acknowledging that, Kevin Rudd’s dysfunction at various levels and Tony Abbott’s extreme partisanship both impede sensible Government.

Anne Tiernan

But how come they aren’t better prepared?  How come they haven’t done more transition planning, I mean. I think that is a fascinating question. They have superstitious beliefs about that to some extent, but I think that’s a really serious area for reform and the parties are badly served by not being better prepared. I think the New South Wales Government was well prepared when it came in. It doesn’t mean you won’t have problems, but if you’ve actually thought about and you’ve set some priorities and done those things...

Peter Mares

So all that process of backroom dealing to win pre-selection doesn’t prepare you to be a, well, necessarily, to be in Government?

Anne Tiernan

It gives you the skills to win, but not the skills to govern.

Peter Mares

And do we, I mean, do Ministers, should Ministers get some sort of training, induction process, is there something like that?

Bob Debus

Well I’m not going to argue for it, but we finished a period of severe dysfunction in New South Wales at the end of the Labor Government when without the public service all sorts of things would have fallen apart. They didn’t fall apart, but without a reasonably well functioning government the public service couldn’t do reform or innovation. It could hang on, and it did, but there were periods in my direct experience with the Wran and the Carr Governments, when there was a high level of functionality, when things really were singing along. When a substantial part of the Cabinet knew what it was doing and they had good relationships with public service who knew what it was doing and things really went well. And I think that was partly because the Government party at that time had an informal system of kind of training people up. You had to stand in parliament for some time before you could possibly get a ministerial job and then you got a junior job and then you graduated. And so you did have a period in which you learnt things because there’s a lot of the stuff that goes on in the weird business of Westminster government that you can only learn on the job. I don’t... you can write it down as often as you like, but unless you experience it it’s not much use.

Anne Tiernan

Peter one of the criticisms I get in my work, and it’s not unsubstantiated sometimes, you’ve got to be robust in academia, one of the criticisms I get is not proffering prescriptions and that’s a very deliberate thing. Because, you know, in the 30 years or 40 years in the Presidential Studies Literature people were telling Presidents how to how to do stuff and they never ever, ever took their advice because no one knew what it was like to be them. So in my work I’m very interested in how the people who have been there think the job needs to be done, because Ministers are pretty resistant actually and there’s lots of reasons why. You can’t give the impression that you don’t know what you’re doing, because there’s always other people who want your job and will do the backroom deal to take you out. So you can’t show uncertainty, you can’t show ill preparedness.

So it really has to be a craft, it has to be an apprenticeship, it has to be a development and that’s why, you know, in our research, and you mentioned the Gatekeepers book, we brought out the perspectives of the people who’d authentically been there, because those people can then take the book away. You know, the prospective Ministers or prospective chiefs of staff can take it away and read it and discuss it among themselves, in the authentic knowledge that some public servant who doesn’t know what’s it like to be them – or some academic who doesn’t know what it’s like to be them, you know – can bring the, you know, recommendations to them.

Terry Moran

Could I say that it is true that in some jurisdictions there’s a higher proportion of people getting to ministerial level now who haven’t really mastered the arts of governing, but more importantly they don’t necessarily even understand how to do the one thing that only Ministers can do which is effectively communicate with the public and feed that back into the decisions that are taken at a political level within Government and also then the explanation of those decisions to the community. And what’s going wrong in some jurisdictions at the moment is that there’s a tablets of stone mentality amongst some of the senior figures in government which is as much as saying well we’d decided this is in your best interest so cop and take it. And the public says well we didn’t know this was coming, what are you talking about we don’t agree with this.

Peter Mares

They don’t agree yes.

Terry Moran

And so that’s the core political skill and part of the failure in the development of people who end up in senior political positions is not just about the art of governing it’s also about the art of being a politician, a senior politician.

Peter Mares

And to what extent does this intersect with the changing media environment and the kind of 24 hour news cycle and so on?  I mean I have heard complaints from public servants who I’ve met who have said look I thought I entered this job because I wanted to influence, you know, to be engaged in policy and develop good policy and play a role in good government. I find myself all the time as being called in to write press releases for the Minister because something’s come up in the media. It’s not what I wanted to do, but I’m just, I’ve just become a kind of media flag.

Terry Moran

Well if I could respond on that. That’s a consequence less of the media than of a change in the people around Ministers. Where previously there would be people, such as the people in this room, who would spend on secondment some time in the Minister’s Office to help with the business of Government, to be a source of advice if necessary on public policy, there would be others in the Minister’s Office that would deal with political management and others who would deal with communication.

Peter Mares

So you’d have a public servant say, seconded from the Environment Department, to advise, to work in the Minister of Environment’s Office and advise from a public service perspective?

Terry Moran

Correct, or well a professional perspective yes. And then they could go back and pursue their career and that’s the pattern of the Hawke and Keating years. The Hawke and Keating Government...

Peter Mares

And what’s the benefit of that – of having the professional public servant come in to work for the Minister rather than in the department?

Terry Moran

You can have somebody close at hand who can do a reality test on something that doesn’t seem quite right, but you can also have somebody who reminds everybody else in the office that before a Minister makes a decision the Minister has to have had the right people in the room, if necessary, for a discussion. And that’s not happening now because what’s happened in ministerial offices at Commonwealth level, and it started towards the end of the John Howard period, is that all public servants have been sent off and people with a purely political interest have come in and they think that government is the province of amateurs, which it’s not, and therefore the things that they worry about are what you mentioned – the media and how to feed it – and so a lot of midnight press release writing and so forth is ultimately pointless: it doesn’t have any impact.

But it supports the need of the sort of people who are in ministerial offices to do this. And if you look at the Rudd-Gillard period, the interesting thing is that there was one area of policy and government activity in which both were judged to be highly effective, and that was international policy, including Foreign Affairs, Defence, National Security. And the reason for that was that that was the one area where there was still a tradition, at Commonwealth level, of a seconded First Assistant Secretary with deep expertise in that area who could be in the office as an advisor and make sure that everything was brought together in partnership with the Public servants involved.

Peter Mares

You might say the same thing about the Abbott Government – that Foreign Affairs is one area where the Government is performing very well.

Terry Moran

And that’s got, Tony Abbott’s got, experienced people, a person in his office with that background.

Peter Mares

Bob Debus, could you...?

Bob Debus

I would add that it’s possible for a Minister to appoint someone of particular experience as an advisor. Sometimes you may find that the civil service itself does not have much knowledge about perhaps an area of new interest, or what have you. It’s possible to appoint someone who’s still not 18 and only knows about branch stacking. So I’m not really contesting Terry’s point only to say you can implement the spirit of it in a number of ways.

Terry Moran

I agree with what you’re saying.

Peter Mares

We’re not saying get rid of ministerial advisors.

[Overtalking]

Bob Debus

Don’t have time-serving inexperienced idiots.

Anne Tiernan

And can I make the point that... can I make the point that in fact we have a mechanism, we have the mechanism that was designed to enable all of these excellent things to happen which was the Members of Parliament Staff Act passed in 1984 which actually provided a framework for Ministers to appoint specialist consultants. A practice that hasn’t been pursued since the sort of the mid 1990s, probably ’95-96. You had this capacity to bring people in who had substantive career experience, as Terry had pointed out, and while they were in the Minister’s Office they were relieved of their obligation to be impartial while they were in the service of the Minister.

But it was very clear that if they told Minister something they didn’t want to hear that, unlike ministerial staffers who’ve got no employment security, if you, you know fell foul of the Minister or the Prime Minister you could go back to your job in the public service and you’d continue to have your career development. When the staffers are cut off, and this is not irrelevant, then they’ve got nowhere to go. And also when you tie your, you know, star to the wagon of a political party and they’re out of office you don’t... your career can’t develop any further. So, you know, it’s a really, really bad pathway in terms of people’s professional skills and I think we can see it in the advice that Ministers are getting.

Terry Moran

There’s a rule on this. I think a new rule that’s emerging is that to the extent to which a government relies on ministerial officers made up of young or old political operatives, but they’re overwhelmingly young...

Peter Mares

People who have basically been appointed for their political loyalty rather than expertise?

Terry Moran

Or their familial relationships or whatever. To the extent...

Anne Tiernan

And their personal standing is not irrelevant.

Terry Moran

To the extent that ministerial offices are made up of those sort of people, the average term in office of government will decline significantly, and you see that in a number of states as well as at national level.

Peter Mares

I wanted to ask Bob Debus about, as a former Minister in both State and Federal jurisdictions, your experience of having those seconded officers from the departments, how important that was for the operation of your office as a Minister?

Bob Debus

It was significant and I was proud to have several staffers who were headhunted by departments and taken back. But to be successful in a ministerial office the public servant has to have some skills that are not like, prominent, in their work in the public service. They do have to have high political awareness, which is not necessarily a quality of cynicism – you’ve got to know how the government works and what the relationship between the Minister and the government and the community is in a way that may not be so relevant as a public servant. But the short answer is it was good. Another answer, however, is I mentioned partisanship before. I mean, I understand that people who worked in offices in the last Federal Government are not doing particularly well in the public service in the new Government.

Peter Mares

This was my next point. I was going to ask you about this, Belinda Clark, I mean is there a problem here for the public servant who, who gets seconded to work directly in the Minister’s Office that they then risk being tainted, as being seen to be politically aligned with this or that side of politics because they worked in a Minister’s Office even though they were on secondment?

Belinda Clark

I think there’s a risk but I wouldn’t overstate it. I think the lines in the Minister’s Office are pretty clear between who’s a public servant on secondment and who’s Ministerial staff. In fact, I think they’re probably clearer in the Minister’s Office, sometimes, than when they are out in departments – the actual, you know, roles are fairly clearly defined. I think if someone who is seconded from the service to a Minister’s Office acquits themselves well they actually have got great career opportunities because it would have developed their maturity and sophistication of judgement which is the thing that’s valued, by both the public service and by Ministers. And you know, if they have managed to navigate their course with the advice that they haven’t become partisan, I don’t think it should. You know, the merit principle should apply and it shouldn’t be held against them by any different administration. It should be seen, I think, as something that public servants aspire to and to develop their repertoire of skills and to make this interface between Ministers and public servants more effective.

Terry Moran

Could I say on that Kevin Rudd went out of his way to ensure that people who had held positions in Ministerial Offices in the Howard years and went back to the departments were not treated with prejudice and indeed some of them were advanced by him to appointments that Government got to make, like ambassadorial positions and so forth?  However, that isn’t always the practice. In New South Wales, I think when Barry O’Farrell became Premier, he also was reasonably scrupulous on that front. So I don’t know that we’ve seen a sea change in those issues as much as some outlying behaviour becoming evident from time to time.

Peter Mares

Anne Tiernan, you look like you want to disagree?

Anne Tiernan

Well I do. Not with the how it should be…

Peter Mares

So the how it should be is with the public servant…

Anne Tiernan

The how it should be. But it very much depends on the maturity of the leader and the people, the court around the leader. There had been some people, certainly in the Commonwealth who were hunted down in the Howard years unfortunately, who’d been associated with the former Government. Sensible Ministers didn’t do that, they said you know, well if you can work for me, I, you know, then that’s fine. But it didn’t take long for the public service to go “that’s not a safe path to go down because I’m not going to have it come up and, you know, maybe be told by somebody in the Minister’s Office that I’ll never work, you know, I’ll never go anywhere while this Government is in office.”

Peter Mares

I’m going to be associated with Labor or I’m going be associated with the Coalition, and it’s going to damage my future in public service.

Anne Tiernan

Yes. And I was traumatised when Bob brought up the Hinze kind of example, of course, because we’ve, you know, tried to move on from there in Queensland.

Peter Mares

You are from Queensland.

Anne Tiernan

But I can… that’s right. But sometimes the people who do strange things as leaders there are not from Queensland. So what I would say is, in some State jurisdictions working for a party has had very severe – or working in a Ministerial Office has had severe – consequences for people, including being, you know, perspective employers being rung up afterwards and being told, don’t employ that person because they’re associated… and I think that contributes in significant ways to, you know, what I describe as a sort a political labour market, or advisors moving between jurisdictions where their party is in power. And that dilutes traditions and understandings and the way things are done around here. I think that’s happened in Victoria when all the Howard people went to work for Ted Baillieu [Premier of Victoria from 2010 to 2013]. I think it’s happened in lots of places. It can happen in weird times too when you get people from a local government coming in and being significantly involved in the state government administration, that can get a bit confusing in terms of the Westminster traditions…

Bob Debus

You’re not exactly encouraging anyone out here to go and work in a Minister’s Office.

Anne Tiernan

I’d be very interested in the questions if people are, think it’s a safe pathway, because I think it was an essential pathway when Steve Sedgwick spent time in a Prime Minister’s Office. It was seen as a necessary developmental pathway, you could see how important it was for people. I think now, both on the demand side and the supply side people think, no I’m not sure, and it’s a tragedy, it’s an absolute tragedy because…

Bob Debus

Agreed.

Anne Tiernan

It is, you know, the skills that people need to work around senior people, it brings benefits both ways.

Peter Mares

But before we… and I’ll throw that question to the delegates in a moment, but before we come to that, I mean there’s a related question which is a question of tenure. And as I said in my introductory comments, this was raised as a potential issue in the Royal Commission report into the roof installation ‘Pink Batts affair’. The question… in New South Wales, as I understand it, at the moment, a public servant or a Secretary of a department let’s say, can be dismissed at any time for no reason. So there is no security of tenure. Now does that impact on the willingness to give frank and fearless advice?  Has it gone too far; that the push for responsiveness in the public service?  I mean, it’s a reaction to the whole kind of Yes Minister idea where the public service are the brick wall against which an elected Government bangs its head. But has the push for responsiveness, that is, the public service should respond to the policies of an elected government, gone too far such that people now feel too beholden to Ministers for their job security.

Bob Debus

It’s really hard to answer that question, not least because there are hundreds of Ministers around the country and over a decade there are hundreds of people all who have slightly different circumstances and there are thousands of public servants. But I can say this to you, that I never trusted anybody who was in my perception just kind of holding back or engaging in a pre-emptive battle and I never really trusted anybody who kind of belligerently resisted a position that I’d taken after apparently seriously considering it. Is that helpful?

Anne Tiernan

Oh, I haven’t been there.

Peter Mares

Terry, you’ve been there.

Bob Debus

I should say this. I never, this is something Peter that I learned from the ABC, I never expected anybody to be neutral or I never expected that anybody would have a kind of objectivity in the…

Peter Mares

In a pure sense?

Bob Debus

In some sort of sterile sense. What I think is a useful notion about objectivity is that you’re open minded about looking at evidence and that kind of thing, and that you know where you stand so that when you give advice you’re transparent about what your own personal position is, but you’re giving advice with the greatest attachment that you can muster while you remain an intelligent person committed to your own personal values. Such advice is trustworthy, advice that is mealy-mouthed and kind of avoids that reality pretends to be neutral when actually neutrality is probably not possible in an epistemological sense, is to my mind not useful advice.

Terry Moran

I think that over 30 years Australia’s had massive reform, and a large part of why we’ve had massive reform has been to do with the quality of the public servants involved and they were usually able to have an open conversation with Ministers or Heads of Government or Treasurers about the pros and cons of particular reforms and set a path forward and then implement it reliably. A lot of what we’re talking about today is the greater incidence now of openness between senior officials and individual Ministers such that you can have the conversation and indeed it’s got so bad in some cases that there’s very little direct contact between some senior officials and Ministers because the interchange is mediated by the teenage political advisors, if I can put it in those terms.

And so we’ll get to the point if the emerging rule of law in government is in fact correct, that is, that governments have shorter terms than they used to because of the lack of governing skills and the lack of expertise in Ministerial Offices where politicians themselves will look for answers but there are other things that public servants could advocate.

So, for example, now having spent my entire career fighting Freedom of Information – as with Sir Humphrey, I believe in Freedom from Information – I believe – not believe – I now think we should have much more transparency in Government… and even Cabinet submissions should be available publicly without having to be denied under a FOI process.

Peter Mares

I’m thrilled at your conversion Terry as a journalist.

Terry Moran

Thank you Peter. Yes, and I also think that Ministerial advisors have to be subject to their own accountability regime. They are lacking in accountability, they can do anything even if it’s illegal and never get caught and that’s the black hole in our society that causes so much trouble.

Peter Mares

So they should have to be called before Senate Committees or Parliamentary Committees?

Terry Moran

Yes, absolutely, yes, Parliamentary Committees, and they should have the obligations not to destroy records, and so on and so forth.

Anne Tiernan

Well you see here we’ve got to be careful of jurisdiction differences because I can see all the New South Wales people going, actually they can be kind of – and in Queensland, of course, before the CCC [Crime and Conduct Commission] Ministerial advisors can be called – so it’s the lack of an oversight body in the Commonwealth that kind of has been a bit of an issue about this sort of stuff. And this issue of Ministerial staff accountability I don’t disagree, except that there was a mechanism, or at least debated, and as I understand it, adopted by Labor as policy, that in the event where a Minister walked away and wouldn’t take responsibility for the actions of their staff, that the Chief of Staff could be called.

Now that was adopted in policy by the ALP and its public administration... But it’s never been tested… so a kind of, we’ll have to see. And you know, of course, that both parties have a lot invested in the comity, as we’d call it, of not, you know, I-won’t-call-yours and you-don’t-call-mine. So the, the sort of the, these Royal Commissions, and the payback as a government leaves and a new one comes in and it’s not enough to win anymore, you have to smash your opponent and make them unfit to govern ever again, I think that could have some pretty significant consequences. Could I just say one thing about…?

Bob Debus

Just to say this, the Royal Commission that we were talking about in the previous session, it had Cabinet documents made available and it broke a tradition, that broke a rule…

Anne Tiernan

An understanding of how things were done…

Bob Debus

… or at least a norm that had been in existence since forever, and it’s kind of catastrophic.

Anne Tiernan

Well there is, and it will have consequences and it will accelerate, so that hyper partisan behaviour is actually fraying lots of the conventions that underpin Westminster. And it’s not just in the public service, it’s in the parliamentary kind of arena and I think that will be catastrophic…

Can I just make a point about the consequences of agency head turnover which is I think very concerning. So there was the Night of the Short Knives in Canberra there’s been a Night of Long Knives, you’ve have lots of the stuff, it happens routinely…

Peter Mares

This is when you have a change of Government and then you get a whole, wholesale changes of public heads of departments and secretaries.

Anne Tiernan

So I can’t comment on the impact on frank and fearless because when you interview people you say, look I’m always frank and fearless in my dealings with the Minister but know colleagues of mine who aren’t. But the casualty…

Peter Mares

You don’t have people coming forward saying actually I was really gutless because I was afraid for my job.

Anne Tiernan

The casualty is – well it might Terry’s point, I couldn’t get near the guy and I didn’t see them for, you know, six months and you shouldn’t assume public servants always get access – but the real casualty is institutional memory. And this, and the incapacity to learn, and I think that is a massive concern for the way we’re doing government in Australia…

Peter Mares

So that should be a very, a warning light to government to have those Nights of the Long Knives and wholesale movement and change at the top of the public service…

Terry Moran

But there is one really big counter to all of that which is the degree to which, at the Commonwealth and the State level, there as lots of agencies with various degrees of independence…

Peter Mares

Statutory offices, and so on.

Terry Moran

Yes but also, often with boards and commissions, and those agencies can be in the business of doing policy work, for instance the Productivity Commission, they can have regulatory functions and they can have service delivery functions.  When you think about it, as hospitals become more independent from departmental micro-management they’re in that category as well. And all those agencies, including those with devolved responsibilities are doing very well. What we’re really talking about is problems at the heart of government in the Ministerial departments and the relationships with senior people in those departments and Ministers but in other respects the RBA [Reserve Bank of Australia] is doing very well. APRA [Australian Prudential Regulation Authority] is doing pretty well. ASIC [Australian Securities and Investments Commission] is doing well. The Productivity Commission is doing well. The ACCC [Australian Competition and Consumer Commission] is doing well. And myriads of other bodies are doing very well, and that’s a key part of the Australian system which is often not sufficiently recognised because usually those bodies are frank and fearless advice on steroids….

Peter Mares

And often public, I mean in … Productivity Commission, for example.

Terry Moran

Yes. Therefore I think we should be more like them.

Belinda Clark

I just want to comment on the tenure question. I don’t know the answer – as a relative newcomer to Australia – but it’s been fascinating to watch. I do wonder… actually it might even improve fearlessness of advice because of people think their likelihood of being replaced if there’s a change with administration is pretty high, almost irrespective of advice, how much is it tied to advice, how much is it tied to fact your face doesn’t fit or someone else is preferred or some other factor that you may not be, you know, directly… the author of your own you know, future… so I’m not sure about that but I did sort of somewhat cheekily wonder maybe if it could even improve  the…

Peter Mares

What have I got to lose, sort of…

Belinda Clark

Well yes, to some extent. But I did just want to make a contrast because I’ve had over 30 years in the New Zealand system and that does have tenure and in fact the appointments of Departmental Secretaries is made by the Public Sector Commissioner and what’s evolved there is that experienced and sophisticated Ministers want those public servants who’ve served under numerous administrations. They are the sought after ones which was reference to my remark earlier that you build up a body of knowledge and expertise that senior Ministers want and it’s actually seen as a credit to your CV if you can say I’ve served under, you know, several different administrations. One because they know your discretion is impeccable and your neutrality is impeccable and you’ve got this institutional knowledge and you can save them or at least warn them of pitfalls and consequences which less experienced people just can’t, it just takes time to build up that knowledge.

So it’s very much the norm there that the most senior Departmental Secretaries have served under numerous administrations. Quite a few of them are just… speak from personal conversations, say they don’t vote. They are allowed to, it’s not compulsory in New Zealand to vote, but some of them choose, like some judges do, not to vote just so that they can always say that they do not have party affiliations. I know of course you can still have sympathies and whatever, but they just want to make the point that they take their professionalism and neutrality to such as a degree as they choose not to vote while they are holding such positions.

 

[TRANSCRIPT ENDS]

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