New Public Service Legislation: the Public Service Bill 1997


Index

Background Paper 2 1997-98

John Nethercote
Politics and Public Administration Group
22 September 1997

Contents

Major Issues Summary

Introduction

1997 Public Service Bill: Main Features Statutory Exposition of 'APS Values'
Statutory Code of Conduct
Whistleblower Protection
Prohibitions
Promotion of Employment Equity
Employer Powers Vested in Department Secretaries/Agency Heads
Senior Executive Service
Heads of Australian Missions Abroad
Public Service Commissioner
Secretaries of Departments
Management Advisory Committee
Executive Agencies
Administrative Arrangements and Re-organisation
Miscellaneous

1997 Public Service Bill: The Power Structure The Prime Minister
The Public Service Minister
The Agency Minister
Department Secretary/Agency Head
Public Service Commissioner
Secretary, Department of the Prime Minister and Cabinet

Comparing the 1922 Act and the 1997 Bill

Comparing the 1997 Bill with the McLeod Review Group Report

1997 Public Service Bill: Some Significant Issues The Character of the Legislation
Efficiency, Economy, Effectiveness
Merit
Equal Employment Opportunity
Mobility
Politicisation
Impartial Advice
Position of the Senior Executive Service
Leadership

Conclusion

Endnotes

Major Issues Summary

This paper by Mr JR Nethercote (with some editorial changes by the Politics and Public Administration and Law and Bills Digest groups), a leading commentator on public sector issues, analyses the Public Service Bill 1997 which will replace the Public Service Act 1922. [Readers might note that Mr Nethercote submitted this paper to the Information and Research Service prior to the introduction of the draft subordinate legislation accompanying the Bill. He, therefore, does not refer to such subordinate legislation.] Although it might be suggested that reform in the public sector moves slowly (some unkind souls have suggested that the pace of reform is glacial) few would deny that reform in the Australian Public Service has been quite rapid over the past ten years or so.

Bruce Millett and Mark Neylan recently suggested that given the rate of change within the APS: [A]ny attempt by the Howard Government unilaterally to graft or superimpose its proposed reforms onto a service already exhibiting 'change fatigue' and 'downsizing survivor syndrome' (Mulligan 1997, 26) will almost certainly meet with widespread resistance and generate even greater disillusionment with public service life. Coupled with its emphasis on agency-based management and a private sector 'high performance culture', such a strategy would also seriously call into question the APS's future as a career service.(1)

Mr Nethercote discusses the amendments made by the Bill in considerable detail noting the importance of the amendments to, for example:

  • the relationship between central public service management and a management structure based on departments/agencies;
  • the notion of a unified, tenured, career public service and the implications for frank advice to government;
  • control of appointments to the senior levels of the APS, and in particular the importance of the role of the Prime Minister; and
  • the differences between public and private sector employment-to what extent are public servants bound by ethical and political constraints not operating in the private sector.

Further, Mr Nethercote discusses the Bill in the context of the Public Service Act 1922 and recent reviews of the public service, including, for example, the 1994 Report of the Public Service Review Group (the McLeod Report).

Politics and Public Administration
September 1997

Introduction

The 1997 Public Service Bill crystallises many developments in the Australian Public Service (APS) in the twenty years since the Coombs Royal Commission on Australian Government Administration reported, though these changes do not necessarily derive from its report.

It signals the end of central public service management in favour of department/agency based management; the end of the unified career service as traditionally understood; the end of tenure especially at the top level; and it will be the source (and confirmation) of vastly enhanced prime ministerial power over the top echelons of the public service.

In abstract an argument can be made that the APS is still a Westminster-style public service. In fact it is much less so than it has been in the past. This is symbolised by the absence from the enumerated APS Values of the fundamental duty of officials to tender frank advice without fear or the expectation of favour and, more practically, in the fact that the careers of top officials can now be terminated by ministerial decision.

The question of whether Australia has a Westminster-style public service is often tendentious and not infrequently a distraction from basic issues. Important questions are whether Australia has, within its own approach to democratic, constitutional government, a public service which meets its own needs on a durable basis. In shaping and maintaining such a public service it may draw on practices developed in the context of responsible government as expressed at Westminster; it may also draw on the insights of other systems of government; and, perhaps above all, it will draw on its own long experience of government and administration.

In the new regime of public service governance, public service personnel management is likely to be firmly subordinate to industrial relations. Old debates about whether public administration is a 'service' or a 'profession' are now void. Public administrators, even the Senior Executive Service (SES), will be, under the new legislation, 'employees'.

The new legislation will remove many 'rights' especially in the form of appeal rights to an extra-agency body. The scope of management prerogative is considerably extended, again following the trends of the past two decades. The precise terms of these changes will not be clear until the various agencies have established systems for review of employment decisions; there is a high likelihood of variation from agency to agency.

The legislation retains the traditional title, the Public Service Act (PSA). It is the third Commonwealth Act of that name, previous legislation having been enacted in 1902 and 1922.

Most other jurisdictions that have adopted new legislation in recent years have abandoned the traditional title whilst maintaining, in reasonable degree, a single united public service.

The Commonwealth is retaining the traditional title but creating a framework where it will be increasingly erroneous to talk of a 'public service': if statements about appropriate arrangements to suit particular circumstances reflect reality, the Commonwealth will have, under the aegis of the 1997 legislation, an extensive range of agency-based services.

In both the second reading speech and the Explanatory Memorandum much is made of the deficiencies of the 1922 legislation which is being replaced. It would be well to recognise that there is a context in which these criticisms should be read.

First, most of what is criticised is of relatively recent vintage. It has been mainly in the past generation that the legislation has been cluttered up with much detail. The need at least for a consolidation has been glaringly apparent since 1987 when the then Public Service Board was abolished and many key provisions which gave meaning and purpose to the Act were removed. And it is of interest to find a number of changes in the new legislation actually have the effect of restoring earlier provisions repealed, mostly, in the 1970s and 1980s. In terms of appeals apart from those relating to promotion, the new legislation essentially reverts to the situation as it was in the days prior to the Coombs Royal Commission.

Second, the scheme in the 1922 Act not only had an obvious durability, it allowed important developments both expressly and indirectly. The performance of the 1997 legislation in this respect will be of much interest. However, it may be observed that whilst a strong central management capability is not an invariable sign of dynamic public administration, the absence of such a capability is almost invariably a characteristic of a weak administration. Dynamic public administration is a matter of legislation, structures, systems and resources.

Legislation is, however, not necessarily the key factor. The presence of a well-resourced personnel and management agency in a public service is usually a manifestation of investment in orderly practice and innovation. An illustration of this feature of administrative governance would be the post-war modernisation of the APS through application of information technology to administrative routines, a feature of Australian public sector practice which has been, historically, of great importance in constraining growth in employee numbers without detrimental consequence to performance or service.

Legislation is in part a product of its environment. The 1922 Act was, inter alia, designed for a small service staffing a small number of mainly small agencies in the pre-technological era of administration in a community with restricted educational opportunity and achievement. It was also framed by people with first-hand experience of the patronage, corruption and inefficiencies which marked the highly departmentalised public service of the Australian colonies in the first half-century of self-government, the fifty years, that is, which preceded federation.

The APS is now an Australia-wide entity with some very large organisations. In terms of office systems and technologies it is among the most advanced in the country. A new Act is certainly timely but it would not be inappropriate to recognise that those who drafted the 1922 Act, including Sir Robert Garran (a major architect, also, of the 1902 Act), produced a document of considerable resilience.

The new bill itself has its immediate genesis in a review of the legislation by a Review Group headed by the Inspector-General of Security, Ron McLeod, a long-serving official with much experience in industrial relations and public sector personnel management. The Review Group reported in December 1994.

The new legislation has an obvious connection with the report of the Review Group, although the form and character of its proposals bear a closer resemblance to the 1922 Act than does the 1997 bill. Some commentary on the Bill in relation to the Review Group proposals is included later in this paper.

The aim of this analysis is to describe the main features of the 1997 bill, to review the power structure which it creates for governance of the APS, and to compare the new legislation with that which it is designed to replace. It then appraises the legislation in terms of what appear to be some major matters of significance to the character and quality of administration such as efficiency, politicisation, merit and mobility.

The great strength of the new legislation is its general embodiment of current thinking about public service management. The core elements of current thinking are all conspicuous: significant, direct ministerial control, especially prime ministerial control, of the public service; agency-based management of administration; more focus on outcomes than processes with an expected significant efficiency gain in the reduction of 'red tape'; revival and re-establishment of management prerogative, with corresponding containment and reduction of union influence and employee rights; and minimal distinction between the public service workforce and private sector employment.

Within the policy framework, the legislation does not have inherent weaknesses per se, only a certain vagueness and looseness of language. Most problems may be seen to derive from the underlying policy. While it is brief in itself, the legislation only embodies a very small part of the public service system. There will be Commissioner's Directions, Classification Rules and new Regulations. Each agency will build a body of documentation, some of which will be obligatory. What will be of much interest in the next five to ten years is the extent to which agencies constructively take advantage of the opportunities now available, and of the extent to which self-management imposes costs which agencies are unable or unwilling to meet.

1997 Public Service Bill: Main Features

Statutory Exposition of 'APS Values'

The Values state that the APS is 'apolitical', 'impartial' and 'professional'. They cover merit; anti-discrimination; ethical standards; accountability; responsiveness to the government in provision of timely advice and policy and program implementation; fair, effective, impartial and courteous service delivery; leadership; workplace relations; fairness, flexibility and safety in the workplace; results and performance focus (clause 10).

Statutory Code of Conduct

The Code Of Conduct included in the bill covers honesty and integrity; acting with 'care and diligence'; treating everyone with 'respect and courtesy'; compliance with 'all applicable Australian laws'; compliance with 'any lawful and reasonable direction' by authorised people; appropriate confidentiality in dealings with ministers and ministerial staff; disclosure and avoidance of conflicts of interest; using 'Commonwealth resources in a proper manner'; use of information; and upholding APS Values and 'the integrity and good reputation of the APS'. It also states that APS employees abroad 'must at all times behave in a way that upholds the good reputation of Australia' (clause 13).

Department Secretaries and Agency Heads are required to establish procedures to determine whether the Code has been breached. Procedures must have 'due regard to procedural fairness' (that is, a hearing for an individual likely to be adversely affected; absence of bias; and decisions to be based upon 'logically probative evidence') (clause 15).

Penalties can include termination; reduction in classification or salary; reassignment; or a fine (clause 15).

Whistleblower Protection

The bill provides that Agency employees may not victimise or discriminate against an employee who has reported 'breaches (or alleged breaches) of the Code of Conduct' to the Commissioner, an Agency Head or people authorised by them (clause 16).

Prohibitions

The bill prohibits patronage, favouritism and ministerial interference in relation to specified particular individual personnel decisions (clauses 17, 19).

Promotion of Employment Equity

Secretaries/Agency Heads 'must establish a workplace diversity program to assist in giving effect to the APS Values' (clause 18).

Employer Powers Vested in Department Secretaries/Agency Heads

Clause 20 states that an 'Agency Head, on behalf of the Commonwealth, has all the rights, duties and powers of an employer in respect of APS employees in the Agency'.

These powers include engagement of employees (clause 22); determination of remuneration and other terms and conditions of employment (clause 24); assignment of duties to employees, and locations of work (clause 25); termination of employment subject to provisions of Workplace Relations Act 1996 (WRA). The powers are subject to any 'rules about classifications of APS employees' made by the Public Service Minister (clause 23) and any determinations of the Public Service Minister about 'the remuneration and other terms and conditions of employment applying to APS employees' (subclause 24(3)).

Clause 22 states that an 'Agency Head must not engage, as an employee, a person who is not an Australian citizen, unless the Agency Head considers it appropriate to do so'. The circumstances of when it is 'appropriate to do so' are not explained.

Senior Executive Service

The SES is retained to provide a group of APS employees who provide, within his or her Agency, high level professional expertise, policy advice, and management; promoting co-operation with other agencies; and, by 'personal example', promote APS Values and compliance with the Code of Conduct (clause 35). There is provision for incentive payments to SES employees to retire (clause 37). The Workplace Relations Act does not apply to terminations of employment of SES employees (clause 38). However it may be significant that the current distinction between SES and SES (Specialist) will not be retained in this legislation.

Heads of Australia Missions Abroad

An innovation in this legislation is a requirement that all heads of Australian missions abroad will be APS employees or employees under the Australian Trade Commission Act 1985.

An Agency Head will be required to comply with a ministerial direction to engage particular people as APS employees so that they can become a Head of Mission, and to assign particular duties to an APS employee who has been appointed as a Head of Mission (clause 39).

According to the Explanatory Memorandum, this provision will overcome a number of technical problems associated with discipline of these office-holders, and does not give rise to any difficulties in terms of Australia's international representation.

Public Service Commissioner

There will continue to be a Public Service Commissioner. The Commissioner is to be appointed by the Governor-General for a term not exceeding five years (clause 45). The Agency Minister will be responsible, however, for 'remuneration and other conditions of appointment'.

The Commissioner's responsibilities embrace evaluation of 'the extent to which agencies incorporate the APS Values', and the 'adequacy of systems and procedures in agencies for ensuring compliance with the Code of Conduct'; conduct of various inquiries authorised under the legislation; development and promotion of employment policies and practices, and facilitation of 'continuous improvement in people management throughout the APS'; and 'to co-ordinate and support APS-wide training and career development opportunities' (clause 41).

The Commissioner is also 'to contribute to, and foster, leadership in the APS'; and also, to provide assistance on public service matters to Agencies on request'.

The Commissioner is also authorised to publish directions which are disallowable instruments for the purposes of the Acts Interpretation Act 1901. Whilst they cannot 'create offences or impose penalties', 'Agency Heads and APS employees must comply with the Commissioner's Directions'.

The Commissioner will also report annually on the activities of his/her Agency, and upon 'the state of the APS during the year'.

Secretaries of Departments

Under the Agency Minister, a secretary is to be 'responsible for managing the Department' (clause 50).

Secretaries will be appointed for periods up to five years by the Prime Minister, after receiving 'a report about the vacancy from the Secretary of the Prime Minister's Department' (clause 51). (Where there is a vacancy in the latter post, the Prime Minister will receive a report from the Public Service Commissioner (clause 51)).

Similar procedures will also apply where an appointment is being terminated. A former secretary may be engaged to perform specified duties (otherwise than as an APS employee), on terms and conditions determined by the Prime Minister (clause 53).

At the end of the financial year each secretary must present a report 'on the Department's activities during the year' to the Agency Minister for presentation to the Parliament (clause 56).

Management Advisory Committee

There is to be a Management Advisory Committee (MAC) composed of all Secretaries and 'such other persons as are nominated in writing by the Secretary of the Prime Minister's Department'.

The purpose of the Committee is to advise the Government 'on matters relating to the management of the APS' (clause 57).

The Secretary of the Prime Minister's Department will chair the Committee, of which the Public Service Commissioner will be the 'executive officer' (clause 57).

Executive Agencies

The legislation creates a new category of government organisation called Executive Agency. It has many affinities with a department of state, including creation and abolition by the Governor-General (clause 58).

Heads of executive agencies will be appointed by the Agency Minister for periods not exceeding five years. The Agency Minister will also be responsible for determining the Agency Head's remuneration and other conditions of employment (clauses 60, 61).

The Head of an Executive Agency will also be responsible for preparing a report annually for presentation to Parliament (clause 63).

Administrative Arrangements and Re-organisation

Clauses 64 and 65 govern various administrative arrangements etc., and, inter alia, prescribe express executive functions to be performed by the Public Service Commissioner.

Miscellaneous

Part 10 makes provision for authorising payments to employees and others of an ex gratia character (clause 66); employment of locally-engaged employees at embassies, high commissions and consulates (clause 67); attachment of salaries (clause 68); release of personal information (clause 69); creation of positions when necessary (clause 70); delegations under the legislation by ministers, the Public Service Commissioner and Agency Heads (clause 71); and the making of regulations under the legislation by the Governor-General (clause 72).

1997 Public Service Bill: The Power Structure

Power under the proposed public service legislation will be exercised variously by ministers and Department Secretaries/Agency Heads.

The Prime Minister

Among ministers the most significant is clearly the Prime Minister. What is distinctive about the Prime Minister's position is that he/she now has considerable direct power as well as meta-power (as has long been the case). To appreciate the Prime Minister's position it is crucial to recognise that it is not only the power which is vested in the Prime Minister which is significant, it is the meta-power, the fact that the Prime Minister is the only person under the legislation with a pervasive capacity to decide, in many instances, and otherwise to influence who has power.

In the first instance, the Prime Minister will both appoint department secretaries and decide their remuneration and other conditions of employment. It will also be the Prime Minister who will terminate appointments. This will mean termination of a public service career unless termination coincides with a fresh appointment.

These powers are untrammelled by any but the most modest due process. Appointment and terminations are based on reports from the Secretary to the Department of the Prime Minister and Cabinet. This is a requirement of little apparent substantive importance, in part because it is unusual to have a statutory provision requiring a Minister's principal adviser to submit a report to that Minister on an important matter. The process will not include even the formal but not always nominal disciplines provided by an Executive Council appointment process. (In the Canadian public service, such appointments are by Order-in-Council.)

And, unlike earlier procedures for department head appointments, there are no conventions about discussions with the responsible minister or raising the appointment in Cabinet and 'under the line'.

Thus, in both formal and actual terms, the Prime Minister's power over the top echelon of the APS is enormously increased under this legislation.

Another dimension of the Prime Minister's powers over the top echelon of the APS is contained in clause 53. Under clause 53, the Prime Minister controls any subsequent engagement of a former secretary 'to perform specified duties (otherwise than as an APS employee), on terms and conditions determined by the Prime Minister'. The Prime Minister's power thus extends beyond termination. Secretaries wanting government assignments after termination will appear to need the good offices of the Prime Minister.

The Prime Minister's power also embraces appointment of the Public Service Minister, the Minister who presumably administers the legislation on a day-to-day basis.

The legislation also states that '[t]he Prime Minister may issue general directions in writing to Agency Heads relating to the management and leadership of APS employees' (clause 21).

The Public Service Minister

The Public Service Minister's main functions relate to remuneration. They include making rules about 'classifications of APS employees' with which Agency Heads must comply. More significantly, the Public Service Minister is authorised to determine the remuneration and other terms and conditions of employment applying to APS employees, if the Public Service Minister is of the opinion that it is desirable to do so because of 'special circumstances'. The purpose of this clause is not explained but it would appear from the terms of the Explanatory Memorandum (4.11.10, 30) to be in the character of a reserve power which would be useful in, inter alia, certain industrial situations (e.g. in its availability to 'override any inconsistent determination by an Agency Head').

A power of some importance is contained in clause 46, namely determining the 'remuneration and other conditions of appointment' of the Public Service Commissioner.

The Agency Minister

Agency ministers have only a limited role in the scheme of administration envisaged by the legislation. In relation to a department secretary, the Agency Minister has only a general function. Clause 50 states that: 'The Secretary of a Department, under the Agency Minister, is responsible for managing the Department'. This reflects the earlier formulation in section 25(2) of the 1922 Act as amended in 1984: The Secretary of a Department shall, under the Minister, be responsible for its general working, and for all the business thereof, and shall advise the Minister in all matters relating to the Department. [emphasis added]

The words italicised are considered by a number of observers to address a potential conflict between the Public Service Act provision and section 64 of the Constitution which states: 'The Governor-General may appoint officers (that is, the Queen's Ministers of State) to administer such departments of state of the Commonwealth as the Governor-General in Council may establish'.

Although this particular amendment has been seen as a major step in 'politicisation' of the APS, it was not a change which, apparently, brought any fresh powers not otherwise available to a minister.

An Agency Minister has particular roles in appointment of heads of executive agencies for terms up to five years, termination of such appointment, and determination of remuneration and other conditions of appointment (clauses 60, 61).

Otherwise, it falls to the Agency Minister to present annual reports to Parliament received from the department secretary, Agency Heads and anyone else with a reporting responsibility.

Basically the position of the Agency Minister is similar under the new legislation to that of the departmental Minister under the current legislation. Agency Ministers may secure some additional scope for action under the Executive Agency scheme.

Department Secretary/Agency Head

It is in keeping with the department/agency focus of this legislation that much power is concentrated in the department secretary/Agency Head. The legislation states that: 'An Agency Head, on behalf of the Commonwealth, has all the rights, duties and powers of an employer in respect of APS employees in the Agency' (subclause 20(1)).

The Act also empowers an Agency Head, 'on behalf of the Commonwealth', to engage persons as employees for the purposes of the Agency.

A good deal of the power at the disposal of these individuals derives from the Workplace Relations Act 1996 rather than the Public Service legislation. This is an especially clear indication of the extent to which the public service legislation is now effectively subordinated to industrial relations legislation even in career service/personnel matters which it was previously practice to keep reasonably separate.

A department secretary/Agency Head has a number of obligations under the legislation, including: upholding and promoting APS Values (clause 12); establishing procedures which must have due regard for procedural fairness for determining whether an APS employee has breached the Code of Conduct (clause 15); and establishing 'a workplace diversity program to assist in giving effect to the APS Values' (clause 18).

A department secretary/Agency Head will be required to comply with Classification Rules made by the Public Service Minister (clause 23) and may 'from time to time determine in writing the remuneration and other terms and conditions of employment applying to employees (subclause 24 (1)). Such a determination may apply, adopt or incorporate an award or certified agreement. (See above for the power of the Public Service Minister likewise to issue determinations.) Another power concerns determining duties of an APS employee, and the place or places at which they are to be performed (clause 25).

A department secretary/Agency Head 'may at any time, by notice in writing, terminate the employment of an APS employee in the Agency' (clause 29). Rules and entitlements in the Workplace Relations Act 1996 will apply, except to SES employees and locally engaged staff, or in the event of machinery of government changes.

The Explanatory Memorandum states: ' ... no lengthy processes will be mandated' (4.23, 31). It continues: 'the power to terminate at any time cannot be restricted by an agreement between the Agency Head and the employee. However, such an agreement could deal with, for example, compensation for early termination of a fixed term engagement' (4.26, 32).

It has also been stated that: 'Dismissals which are harsh, unjust or unreasonable will be open to review by the Australian Industrial Relations Commission with the possibility of reinstatement or compensation after a successful application'(2).

Public Service Commissioner

The legislation retains the office of Public Service Commissioner, mainly for promotional, developmental and advisory tasks, and an investigatory role on particular matters such as alleged breaches of the Code of Conduct by department secretaries/Agency Heads. There is some additional scope in terms of considering and reporting to the Public Service Minister on any matter relating to the APS and the Commissioner may 'develop, promote, review and evaluate APS employment policies and practices' (subclause 41(1)). The Commissioner is also required to report annually to the Parliament, including on 'the state of the APS' (subclause 44(1)(2)).

The Commissioner's powers concern issue of directions (with which Agency Heads and employees must comply although they cannot 'create offences or impose penalties'), and others for investigatory purposes. Subclause 44(3) requires secretaries/Agency Heads to give the Commissioner whatever information is required for the purpose of reporting on the state of the service.

The main matters in which the Commissioner has some executive or instrumental capacity is in re-assignment of excess employees and in employee transfer arising from machinery of government changes.

Much will hinge on the funding and staff of the Commissioner's agency but it is arguable that there is a considerable disparity, de facto, between the functions and the powers of the Commissioner.

Notwithstanding substantial differences in role, function, power and responsibility, the Commissioner retains some of the characteristics of the offices from which the post has descended, in particular appointment by the Governor-General and removal only following addresses to the Governor-General presented by each House of Parliament in the same session. It is unclear which Minister will be advising the Governor-General on appointment.

The reality of the Commissioner's relationship with the Executive Government comes in the provision that 'remuneration and other conditions of appointment' will be 'as determined in writing by the Agency Minister'. Given the significance attributed to the office, it could be agreed that it would seem more appropriate that this role should be taken personally by the Prime Minister even if he or she is not the Agency Minister.

Secretary, Department of the Prime Minister and Cabinet

In a substantial sense, a more significant administrative figure in the new regime will be the Secretary to the Department of the Prime Minister and Cabinet to the extent that the holder of this office is in fact the principal adviser to the Prime Minister in public service matters.

In making and terminating secretary appointments, the Prime Minister must receive a report from the head of the Department of the Prime Minister and Cabinet. These reports need not be anything more than formalities. In as much as there is an advisory process, it appears to be mainly oral. (Note that it is the Public Service Commissioner who makes reports when the post of Secretary to the Department of the Prime Minister and Cabinet is involved.)

The Department of the Prime Minister and Cabinet Secretary is also to chair a new Management Advisory Committee composed of department secretaries and 'such other persons as are nominated in writing by the secretary of the Prime Minister's Department' (paragraph 57(2)(d)). The Public Service Commissioner will be the executive officer (paragraph 57(2)©). (This committee appears to be a formalisation of periodical meetings of portfolio secretaries which, in recent times, date from the late 1970s/early 1980s.) The Committee's function will be one of 'advising the Government on matters relating to the management of the APS'.

The Committee's size means that it is likely to be more in the nature of a forum than a policy-making body, as the portfolio secretaries meetings have been. If it is as active as the smaller Management Advisory Board which it, in some senses, supersedes, it will be one of the few mechanisms for fostering coherence in the public service which evolves under this legislation, to the extent that coherence is considered desirable.

It is of interest that this Committee is to be composed only of secretaries on an ex officio basis. A number of secretaries, including the heads of several central departments, preside over fairly small agencies in public service terms, whilst statutory officials such as the Commissioner for Taxation and the Comptroller-General of Customs have the charge of some of the largest public service organisations. To be a genuine forum of the top officials carrying the primary management responsibilities, there would be some argument for a requirement that the Committee include the head of any agency with more than 750 employees. This can be addressed by nomination under subclause 57(2)(d). Significance of function could constitute another ground for inclusion, thus incorporating, for instance, the Ombudsman.

Some observers would also find it curious that selection of additional members of the Committee is in the hands of the Secretary of the Department of the Prime Minister and Cabinet rather than the Prime Minister or, on her/his behalf, the Public Service Minister, the principle being that the advised should choose the advisers.

Comparing the 1922 Act and the 1997 Bill

The new bill is in many respects simply enabling legislation, assigning functions, powers and responsibilities but very little specification of substance. Merit is an example. The 1922 Act contained basic procedures for the workings of the promotion system: there is nothing comparable in the 1997 bill.

The 1922 Act provided a framework for a 'unified public service'; the 1997 bill provides a framework for departmentalised services. Indeed, although it is to be called a Public Service Act, it is basically a generic employment framework for departments and related agencies. The 1922 Act established a public service system led by a Board with a comprehensive, executive role; the 1997 bill departmentalises public service employment, except in relation to compulsory transfer between agencies (clauses 25, 27). The Commissioner's role appears to be largely exhortatory. The 1922 Act also was, subject to social limitations, (in particular, preferences for returned servicemen and prohibition on permanent appointment of married women), a merit-based personnel system aligned to educational standards. Within this context, various equal opportunity/anti-discrimination policies and programs were developed.

The 1997 bill is brief on merit but in the requirement that Agency Heads establish 'a workplace diversity program', it suggests a de facto move to what might be described as 'representative bureaucracy' (see below).

Executive authority under the 1922 Act, particularly until the late 1970s, provided greater involvement for the Governor-General, symbolising the fact that the public service worked for the Commonwealth and not simply the Government-of-the-day. Comparable authority under the 1997 legislation rests mainly in ministers, including the Prime Minister. This symbolises a more direct employment relationship with the Government-of-the-day in spite of the statement that the public service serves 'the Government, the Parliament and the Australian public' (clause 3). Of these three, the first appears to be the greatest.

The 1922 Act was firmly structured around the work to be done. The work was organised and expressed in 'offices' created under section 29 which were classified for salary purposes. Appointments and promotions were made to 'offices'. The 1997 bill, however, ostensibly does away with the concept of 'office' except where an office is necessary for purposes such as delegation of powers. The concept, nevertheless, runs through the bill. Classification is still necessary up to a point for salary purposes.

But it is not clear that 'merit' can be strictly practised without reasonably precise definitions of jobs. The prohibitions on 'patronage' and 'favouritism' are thus more necessary under the 1997 bill than they were under the 1922 Act, but will be more difficult and possibly impossible to enforce.

Under the system contained in the 1922 Act, and subsequently augmented by various amendments, there was increasing growth of extra-departmental review of personnel decisions such as promotions and also in resolving grievances. The 1997 bill appears to reverse this practice totally. Departments/agencies will make their own arrangements for review of personnel decisions. This is consistent with the philosophy of the legislation and it also constitutes another strand in the shift from a unified service to departmentalised services.

The description of staff under the 1922 Act as 'officers' (who were permanent) and 'employees' (temporary) partly expressed the policy of the Hughes Government that, as stated in the second reading speech, 'The Public Service now really partakes of the nature of a profession. It is capable of high ideals, and the desire is that this idealism should permeate the whole service'.(3)

This approach is, in symbolic as well as practical ways, much attenuated in the 1997 legislation.

Tenure as understood in career service philosophy has no place in this legislation. The term 'officer' is disposed of; except for department secretaries and Agency Heads, all those on the payroll are 'employees' (even members of the SES are 'employees').

The 1922 Act in its initial formulation and effectively until the Public Service Reform Act 1984 was a management document. This was epitomised in the charge to the Public Service Board under section 17 to pursue efficiencies and economies in the public service departments and in the central role played by the section 29 processes for creation, abolition and classification of posts. The 1997 bill, by contrast, appears to be employment legislation. It is a satellite of the Workplace Relations Act 1996 whereas the Public Service Arbitration Act 1920 was a satellite of the Public Service Act 1922.

Although there is not, in a statutory sense, a central management agency in the APS, that role de facto falls to the budget agency (in the current context, the Department of Finance). Administration, like nature, usually abhors a vacuum. In the absence of a strong management and personnel agency, budget agencies assume additional importance, but it is suggested that their impact is more pronounced in terms of economy (parsimony) than efficiency or effectiveness.

Paradoxically, while the opposite was the apparent design, the administrative expense of the 1997 legislation, especially if department secretaries and Agency Heads exploit its potential, is likely to be high. More resources, or at least time, will likely go on both development of policy options under the regime, as well as negotiating compensation packages with staff. Departments/agencies may need to augment their personnel management strengths significantly. Small agencies are likely to be hard-pressed unless substantial support is available (possibly from management consultancies).

In establishing the concept of 'executive agencies', the legislation introduces a much needed flexibility in the public service administrative system. It provides a means for handling functions, often of a routine type, which warrant high level management attention but do not necessarily generate a great deal of work for a minister. Because of the autonomies given to departments and a reduction in a centralised monitoring role it also creates an opportunity for ministerial patronage. Common services are an example of this type of government activity.

In a departmentalised regime, the expenses involved in even a modest rearrangement of the departmental machinery of government on a scale comparable to that which followed the general elections of 1990, 1993 or 1996 may be substantial in terms of time and expense (though this will depend on how the department heads choose to exercise their various powers). And it should be monitored to see whether in adjustment of terms and conditions of employment, there is not a matching of best offers. At all events, departmental changes may well be time-consuming and probably burdensome.

Comparing the 1997 Bill with the McLeod Review Group Report

It was observed earlier in this paper that the immediate genesis of the 1997 public service legislation was the report of the review group headed by Ron McLeod(4). The review group itself represented a recognition that the structure of the APS had changed so much, not least in the preceding decade and a half, that a fundamental reconsideration of the legislation was warranted. Moreover, piecemeal amendment of the legislation, especially since the early 1970s, had robbed it of coherence and form.

The Review Group report included an analysis of a number of policy matters which form part of the 1997 legislation, and a preliminary draft bill containing 'principal provisions of a new Public Service Act'. This draft is the precursor of a number of provisions in the new legislation.

There are, however, some differences: these differences warrant close attention, not least because they are not simply explained by the change of government or enactment of the Workplace Relations Act 1996.

The Review Group favoured continuation of the traditional value of 'frank' advice. It saw a major function of the APS in provision of 'frank, honest, comprehensive and accurate advice'(5). This is a stronger charter than that which emerged in the 'APS Values'.

The Review Group also favoured continuation of an APS-wide SES. It reported that the arrangements as they had developed since establishment of the SES were 'generally supported as appropriate'. As a consequence, the preliminary draft bill saw the Public Service Commissioner as the employer of the SES in terms of recruitment and appointment, promotion, reassignment at the same or lower classification level, and for termination.(6) The report states the present 'arrangements emphasise the primary responsibility of the secretary to select the department's top executive team and are consistent with a devolved and accountable management philosophy'(7).

Arguments for a basic reversion to the pre-SES approach (without appeal rights?) provide little reason, and they certainly do not explain, upon what grounds the Review Group's finding should now be negated.

Other strengths in the preliminary draft which warrant further thought in relation to the 1997 legislation include: specification of a functional role of the APS as serving 'Ministers and the Government loyally and impartially' (B.1 (a), 159) [some will regard this as clearer than 'apolitical']; and 'to implement legislation and government policies efficiently and effectively' (B.1 ©, 159);

a clear, substantial statement of the 'general responsibilities of a Secretary of a Department' (C.2, 160-1);

similarly, a clear, substantial statement of the 'merit principle' (D.1, 162-3). It may be noted also that the Review Group would have retained a role for the Public Service Commissioner 'to develop and promote policies for equal employment opportunity' (E.1 (g), 165).

The basic point is that the Review Group report, and its preliminary draft bill, still have much to offer in terms of parliamentary consideration of the 1997 legislation; it should not be assumed that the bill necessarily supersedes the report.

1997 Public Service Bill: Some Significant Issues

The new legislation, which provides only a very partial guide to the APS of the future, gives rise to questions about some enduring matters of interest in public service governance. These are matters about which more information would be helpful in order to assess the legislation and the scheme of governance which it constitutes.

An important supplement to the new legislation, once proclaimed, will be Directions issued by the Public Service Commissioner. The Explanatory Memorandum states that it is proposed to issue Directions on:

  • Fairness in Employment
  • Merit in Employment
  • SES Employment
  • Internal Review of Employment Related Decisions
  • Public Interest Whistleblowing
  • Access to the Commonwealth Gazette
  • Transitional Arrangements relating to the above.

Availability of drafts of some of these Directions, if prepared, would provide major assistance in clarifying the character of the new regime and conveying some insight into how it is likely to work. These would be very beneficial for legislators who will otherwise be considering the bill, in some degree, in the dark.

The Character of the Legislation

Exponents of the 1997 legislation have highlighted the various exhortatory provisions which will, henceforward, have a prime role in encouraging the integrity of the departmentalised service, thus dispensing with many-perhaps most-of the appeal and review mechanisms which evolved in the context of the 1922 legislation (and have been steadily contained and increasingly limited in the 1970s and 1980s). There is, however, considerable scepticism about the practical impact of such provisions. Critics usually acquiesce on the basis that if they do little good, they are similarly unlikely to do much harm. As Professor Robert Parker told the round table on the discussion paper, Towards a Best Practice Australian Public Service, organised by the Senate Standing Committee on Finance and Public Administration: A lengthy statement of these core principles in a revised Public Service bill would have the universal appeal of motherhood. It would be merely declaratory, and so it probably could not do much harm, but it would certainly introduce nothing new to the APS.(8)

Other provisions similarly give rise to the question of the necessity of their inclusion in a statute. A particular instance of this type of provision is that establishing the Management Advisory Committee, with the Public Service Commissioner as 'executive officer' (clause 57).

These practices are not an innovation in the 1997 bill, but more significance seems to be attached to them than previously.

Another and, perhaps, more interesting, feature of the bill is that its enactment will remove from legislation, and therefore from active parliamentary scrutiny, many aspects of public service administration. There will, however, still be means for a measure of scrutiny through the disallowable instruments procedure. It could be argued that, as a consequence of this legislation, Parliament may wish to consider its own arrangements for overseeing administration systematically and thereby bringing some substance to Public Service Value (e) concerning accountability. Indeed, so substantial will be the likely changes to the APS under this legislation that continuing parliamentary scrutiny by a dedicated committee could well be warranted. It might well be the only means whereby the subsequent development of the APS could be effectively tracked.

Efficiency, Economy, Effectiveness

The bill has been described as 'enabling' legislation. There is very little indication of what the public service will be like under the regime created by this legislation and, unless the Commissioner does a thorough job of reporting developments, the task of finding out in a decade's time will be very difficult indeed.

The Financial Impact Statement contained in the Explanatory Memorandum (paragraphs 5 and 6, page 1) is singularly bland and does not provide a clear guide at all as to the advantages of the new regime in efficiency and financial terms. Neither likely costs nor expected benefits are identified.

Because the scheme for public service administration practically dissolves the existing central capacity, there is likely to be considerable expense as the various departments and agencies set about filling in the gaps created by the legislation, both those required, such as procedures for the Code of Conduct, and those to which reference is not made but will be unavoidable, such as methods of staff selection. For a time it may be possible to utilise existing systems if needed, but many of these are now becoming dated, not having had much attention in recent years (for example, classification practice and application).

There may also be costs in diversity, although this is far from certain. Classification is about the cost of labour. It is more than a decade since there was any rigorous scrutiny of classification practice on a service-wide basis. There has reportedly been an upward drift in classifications. This may be partly a consequence of mechanisation of more routine tasks. And the increased costs would have been partly ameliorated by reductions in staff numbers.

Cost benefits (i.e. better value for money) will also depend on the accuracy of the assumption that management structures will be more economical if they can be developed simply to suit the needs of a particular department or agency rather than having to adhere strictly (which rarely happened anyway) to centrally-promulgated rules. Cost benefits derived from abandoning central approval processes of the pre-1984 period have probably been off-set by what seems to be increasing frequency of internal reorganisations (frequently driven by an assumption that problems, rather than being addressed directly, are more likely to be solved by a regrouping). It would be a very optimistic view to assume that the stress on outcomes rather than processes is likely to discourage these endemic behaviour patterns of bureaucracy, especially public bureaucracy.

Neither the Explanatory Memorandum nor the antecedent documentation has considered the consequences of the new regime for Government flexibility in making changes in the machinery of government. Whilst the rate and extent of such changes has been markedly reduced since 1987, there have been instances subsequently, even with the relatively small variations of recent years, where small changes have brought problems of compatibility, time-consuming rather than significant.

The variety of administrative practice which is likely to emerge under the new regime will probably reinforce departmentalism (it would be surprising if it were otherwise) and may have some adverse, diversionary consequences in effecting machinery of government changes.

Whilst it is far from easy to work out precisely where the efficiency benefits of this legislation will lie, and they will probably vary from agency to agency (not least according to size), the expectations contained in the Explanatory Memorandum may turn out, government-wide, to be optimistic.

Merit

Merit is dealt with lightly in this legislation and in the Explanatory Memorandum. All procedures which formerly gave effect to merit in terms of open competition supplemented by specified rights of extra-departmental/agency appeal have lost statutory foundation, replaced only by APS Values 10 (b) and ©: 'the APS is a public service in which employment decisions are based on merit'; and 'the APS provides a workplace that is free from discrimination and recognises the diverse backgrounds of APS employees'.

Related provisions prohibit 'patronage or favouritism' (clause 17); require secretaries etc. to 'establish a workplace diversity program to assist in giving effect to the APS Values' (clause 18); and state that an 'Agency Head is not subject to direction by any Minister in relation to the exercise of powers by the Agency Head . . . in relation to particular individuals'.

It is not clearly stated but the attempt to abolish the concept of 'office', the heart of the 1922 Act for purposes of merit, remuneration and efficiency, could well weaken merit by rendering its application less certain.

This proposition may rest on some key assumptions. The first is that merit, because it is difficult to define, is best assessed by appraising an individual's competencies in relation to the nature of the work to be undertaken. A second assumption is that in a public service system even of the loose sort contemplated by this legislation, a measure of comparability in remuneration for broadly comparable work is desirable. The concept of office was a key means through which these objectives were sought. The Public Service Commissioner has made it clear in his address of 8 July 1997 that these principles are of 'little significance' in terms of current policy. His view takes little account of whether differential pay rates will diminish what he says is of the 'utmost consequence', namely, 'the approach they (i.e. employees of comparable rank) bring to their work, and the manner in which they are managed'.

These objectives, and especially the first, hinged on the view that people were not employed unless there was work to do, and that individuals were paid for the work they did rather than who they were. These practices were seen, particularly in the era when public services were being reformed to apply merit and eliminate patronage and favouritism, as central to efficiency.

The new legislation does not altogether dispense with the concept of office, either expressly as in clause 70, or implicitly as in clause 25, 'Assignment of duties' (indeed, a core part of creation of an office is assignment of duties). The reasons for seeking to diminish the place of 'office' are not compelling. One relates to the notion of 'ownership' and seems to be a contrived rather than a real difficulty; and the other stems from a desire that the staff of government should be 'employees' not 'officers'(9).

Whilst it is not the case that merit arrangements under the 1922 legislation by any means necessarily achieved their purpose, especially some of the appeal arrangements, the laissez-faire approach of the 1997 legislation certainly requires considerable thought and leadership if merit is not to be put at risk. On what is now the core principle of public sector personnel management, it is a subject which should be addressed clearly and specifically, if not in legislation itself, in associated documentation available to legislators at the time of enactment. Not least on merit, the act of legislation should not be a step in the dark.

Under this legislation it may be that cheaper staff selection methods will be devised. It is not clear, however, that they will necessarily be more effective methods in a merit sense.

Indeed, one of the unaddressed topics in the recent debate about the public service is the national character of the APS, especially at central offices located in the national capital. A driving anecdote in the appraisal of selection methods is the cost of a junior employee seeking a promotion from Port Hedland to Canberra. The anecdote does not provide a justification for curtailing opportunity to seek employment in or advancement to Canberra. What it does suggest is a need to examine who should meet the costs of the selection process involved and of transfer where the application succeeds. Policy in these respects must in part be motivated by how national the national public service should be.

More generally, there are grounds for reviewing the APS selection system in terms of what are called in some public services, 'zones of competition', which could be defined hierarchically, organisationally and/or geographically. Such review should take account not only of merit but of the need to ensure the APS remains a national public service. And it could certainly ensure that certain costs of the selection system which entail relocation are allocated so that public expenditure is confined to that which is warranted by the need for a strongly merit-based, national approach to staffing.

Equal Employment Opportunity

Elimination of the term 'equal employment opportunity' from the legislation, however it may be defended in argument, may well be seen as a diminution of the endeavour to ensure APS employment, and advancement in the APS is fully non-discriminatory and merit-based. The compensatory words will not, for many, be adequate, and the notion of 'workplace diversity' has counter-implications, as will be outlined below.

Statutory expression of equal employment opportunity was a component of the 1984 Public Service Reform Act. It was about the employment opportunities of four designated groups: Aborigines; people with disabilities; people from non-English speaking backgrounds; and women. The provision simply required departments and agencies to have programs to promote equal employment opportunity for the designated groups.

A case for retaining the concept of equal employment opportunity in the legislation would be that it is a relatively small change: it would retain a significant strengthening of the traditional value of merit; and it would remove any grounds for suggestion that its absence marks a retreat from what has been an important goal of public sector personnel management in the last quarter century.

The concept of 'workplace diversity' is not a merit-consistent substitute and raises other problems. It is not defined in the legislation or the Explanatory Memorandum. It could readily be taken to mean a prescription for 'representative bureaucracy'. If it were so interpreted, this would be a major departure in policy, for the APS has always resisted the notion of representative bureaucracy or such derivatives as quotas. And it could be viewed as a major qualification of the merit principle in staff selection (especially recruitment and promotion), particularly when combined with elimination of 'equal employment opportunity'.

A redraft could be based on whatever is the objective of a 'workplace diversity program'. If it is to ensure that any Australian citizen, irrespective of ethnic background, colour, creed, race, etc., would not feel an APS workplace is hostile or unfriendly or discriminatory, a preferred approach would be to prescribe an equal employment opportunity and equity program having regard to the diverse backgrounds of Australian citizens and APS employees.

If the purpose is in fact some form of representative bureaucracy, this should be transparent and the concept articulated clearly and specifically. A succinct summary of concerns about representative bureaucracy is as follows, and retains its pertinence notwithstanding its composition in the late 1960s: There have been efforts to make public employment at all levels more 'representative' of the general population by adopting quota systems of selection favourable to those who come from disadvantaged families... . Subsequently, such quotas have been adopted from time to time when political considerations have suggested the advisability of populist appeals and measures against new 'pockets of privilege'. However, experience has shown that an administrative apparatus dependent upon a skilled staff is limited in the degree to which it can manipulate quotas favouring the disadvantaged without jeopardising its level of performance.(10)

Mobility

The effect of the bill on general mobility of staff is unclear. Any 'departmentalisation' of the APS is unlikely to encourage 'mobility', although there may be cases of agencies being able to improve their situation in relation to the rest of the APS (and others from which there may be something of an exodus). At present a decision to seek transfer or promotion to another agency may be confined to the opportunities of the new post and the style of an organisation. Location may have a bearing in terms of transport costs. Now a number of other considerations in the conditions field may have to be weighed.

Politicisation

A significant question often addressed whenever there is any major change in the structure of a public service is whether, as a consequence, a public service will or might be 'politicised'. The purpose of this section is to appraise the 1997 legislation to see if, and in what sense, the APS will or could be politicised as a consequence of its adoption.

The term 'politicisation' usually carries a suggestion of disapproval or censure. This can include an implication that an appointment has been secured on the basis of cronyism, or in return for a favour, rather than competence or even capacity for the job. It is usually associated with appointments but can be related to terminations, and relates also to other fields of administration such as contracts.

Another meaning may simply be that an appointment or a decision is made by or on the recommendation/advice of a minister or some other elected person. Such appointments may well be made in terms of competence, and matters of partisan loyalty need not have any relevance.

In a public service context 'politicisation' may mean that a decision is made by a minister for party reasons. It can also mean that advice is tendered so as to be in conformity with party philosophy, or it may refer to recommendation of a course of action of questionable wisdom but likely electoral benefit especially in the short-term.

'Politicisation' is often used in Australia to refer to what are seen as American practices of a Jacksonian character. These are appointments based on party service, unlikely to endure beyond the life of an administration, with no necessary regard for competence. These practices have declined in the past forty years in the USA itself, with competence being regarded as a basic requirement even for patronage (presidential) appointments.

Claims of 'politicisation' have a long history at Commonwealth level, from the earliest days of the Federation.

The provisions in the 1997 bill do make changes which increase ministerial authority within the public service. This is especially so of the Prime Minister. In this sense the bill largely reinforces trends of the past two decades in removing tenure in secretary and other senior posts and substantial elimination of the principle of continuity during changes of minister and/or of ministry. Some of the changes are substantial; others are symbolic.

Under the 1922 Act, department secretaries are appointed by the Governor-General, symbolising their fundamental loyalty to the Commonwealth of Australia and not only to the Government of the day.

Under the 1997 bill, apart from the case of the Public Service Commissioner, such appointments will be made by the Prime Minister who will also determine remuneration and conditions of employment. Department secretaries will hence inevitably be seen to be unquestionably functionaries of the Government of the day. Allegiance to a broader, more enduring entity, the Commonwealth of Australia, does not seem to have a prominent place in this legislation.

A department head who is replaced without receiving another appointment, or who does not receive another appointment on abolition of a department, is no longer an employee of the public service. This is not new but became especially apparent in 1996 following the election. In terms of traditional approaches this is a major departure, at odds with the principle of continuity of service notwithstanding a change of ministry. It would also be seen as politicisation in that a career is terminated as a consequence of a ministerial decision rather than as a consequence of due process.

The possibility of politicisation is increased in that the only individual other than the Prime Minister involved in a secretary appointment is the Secretary to the Department of the Prime Minister and Cabinet. The occupant of this post may be a career administrator, as has been the case with, for example, Sir Allan Brown (1949-58); Sir John Bunting (1959-68); 1971-75); Sir Lennox Hewitt (1968-71); Sir Alan Carmody (1976-78); Sir Geoffrey Yeend (1978-86); or Michael Codd (1986-92). But it is not invariably the case.

It may be noted that of the above, Brown, Bunting and Yeend straddled changes of government. On the other hand, Sir Lennox Hewitt's appointment was almost identical with Sir John Gorton's prime ministership. Michael Codd relinquished the post when Paul Keating became Prime Minister. Within a week of the 1996 general election a media release of 8 March 1996 by the Prime-Minister-designate stated that Dr Michael Keating would be retiring during the year.

Politicisation is neither proved nor disproved by the nature of department secretary appointments. It was because a person perceived as a 'political' appointee could be drawn from the ranks of the public service itself that legislation of the Fraser Government in 1976 about department head appointments, distinguished between an 'established' candidate, that is, an appointee drawn from a list vetted by a panel headed by the chairman of the then Public Service Board, and other candidates. All department heads appointed during the currency of this legislation, repealed in 1984, were 'established' candidates.

Departmental headship may be said to be politicised in terms of lack of tenure and the prospect of termination on change of minister or government, or even simply after an election. It is also politicised in as much as a department head whose appointment is simply terminated, without another appointment, has come to the end of his or her career as an official.

These posts are not generally politicised in a party sense at the appointment stage but this will be a matter of policy and practice under the 1997 legislation as it has been under the legislation of the last decade. There are no effective statutory barriers. The statement in the APS Values that the APS is 'apolitical' could have only rhetorical impact.

Impartial Advice

Another relevant meaning of 'politicisation' is the tendering of counsel to a Minister on the basis of what is presumed to be desired or expected: the colloquial expression is what the Minister wants to hear rather than what he/she should hear, with all the long-term consequences this implies.

Those with this concern will view the 1997 legislation with the gravest apprehension. Survival at the highest level appears likely to be contingent on ministerial, especially prime ministerial, benevolence that to advance, let alone press, an unwelcome perspective will be a course chosen only by the very brave and the very fool-hardy. The fact that the legislation, in the Values provision, chooses to exclude perhaps the most ancient of all obligations of officialdom, the duty to offer advice which is frank, without fear or expectation of favour, may well further encourage an inclination to convenience rather than to truth.

The provisions for appointments to and within the SES are still public service decisions. But an Agency Head is not required to comply with any ministerial direction and has more discretion to hire and fire. However, the definition of SES rank also suggests that these requirements are to be based on professional capacity and accomplishment (clause 35).

Position of the Senior Executive Service

The 1997 legislation thus weakens the protections, in theory, present in the 1984 amendments to the 1922 legislation, under which the SES was established. Under that legislation SES appointments were made by the Commissioner (initially the Public Service Board until its abolition). The Commissioner also nominated a member of the panel advising the department secretary. This form of protection has now gone. (But note that the character of the protection so offered could be contingent on who is appointed Commissioner. There is no requirement that the Commissioner be drawn from the profession.)

And, it needs to be recalled, it presumably remains possible for a ministerial nominee, engaged under the Members of Parliament (Staffing) Act 1984, to be assigned duties within a department providing the Secretary/Agency Head agrees. An instance of this use of this legislation was the appointment in March 1996 of Michael L'Estrange as Secretary to the Cabinet, a role previously performed by the Secretary of the Department of the Prime Minister and Cabinet except during the Gorton prime ministership.

Leadership

The matter of leadership can be agreed to be closely related to that of 'politicisation'. The legislation sees it as necessary to cast 'leadership' as an APS Value: 'the APS has leadership of the highest quality' (clause 10). Asserting a Value does not, of itself, remedy a problem if it exists. What is meant by 'leadership' in the context of the legislation? How does it strengthen the legislation? The McLeod Review Group, e.g. did not see 'leadership' as a public service value.(11)

The concept of 'leadership' conveyed by the bill is of a decidedly tenuous hue. And policy about APS leadership for more than two decades has been about underlining its subordination to the ministerial level (whereas the Northcote-Trevelyan principle was about a measure of independence in relation to ministerial superiors).

It may be that 'leadership' is about an APS which fosters and encourages initiative and innovation. Such qualities would not be out of place in a statement of Values in any case.

Conclusion

Peter Hennessy, Professor of History at the University of London, recently noted that the key ethic of the public service is 'fearless advice resting on top-class analysis, itself fashioned by evidence and reason'.(12) In the current global market, he continued: the prizes go to the flexible and the intelligent. And governments can be neither of those things if the outcome of policy making is the precooked, the palatable and the convenient.(13)

The need for reform and improvement in the public service, as in all other areas of life, will never cease. Public servants advise governments on policy alternatives on matters that have a lasting impact on the Australian community; they also spend significant quantities of the peoples' money implementing government policy. In such circumstances, governments and public servants have a duty to ensure that they continually strive for improvement.

The current Bill maintains the momentum for public service reform. Whether it will improve overall services to the public-which at the end of the day must be the test of effective public service reform-is yet to be seen.

Endnotes

  1. Millett and Neylan, 'Change Management in the Public Sector' in Prasser and Starr (eds) Policy & Change: The Howard Mandate, Sydney, 1997, p.58.
  2. Accountability in a Devolved Management Framework, PSMC/DIR, May 1997, p.29.
  3. Commonwealth Parliamentary Debates (House of Representatives), 28 September 1922, pp.2840-2841, Mr Groom.
  4. Report of the Public Service Review Group, AGPS, December 1994.
  5. ibid., p.159.
  6. ibid., p.165.
  7. ibid., p.95.
  8. Australian Parliament, Senate Standing Committee on Finance and Public Administration, Official Hansard Transcript of Evidence, February 1997, p.7.
  9. Public Service Bill 1997, Explanatory Memorandum, 2.1.16, p.9.
  10. Reinhard Bendix, 'Bureaucracy', International Encyclopedia of the Social Sciences, vol.2, 1968, p.213.
  11. Report of the Public Service Review Group, op. cit., pp.141-2.
  12. Canberra Bulletin of Public Administration, August 1997, p.2.
  13. ibid., p.2.

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