There is reason to believe that genuine integrity reform – even just insistence on obeying the law – would have a big impact. Not just on the operation of the APS but on the Government, the Parliament and the Australian public.
There may be too much rhetoric about integrity reform in the APS, and some public servants may think Robodebt is behind us and we don’t have any bad apples any more so little serious action is now needed; but the problems revealed by Robodebt run deep as the ANAO has uncovered in a series of audit reports over the last few years and the JCPAA has highlighted in its most recent report on probity and ethics in the Australian public sector (‘Report 502: The never-ending quest for the golden thread’).
The package of proposals I presented recently would shift the rewards and penalties facing senior public servants away from excessive responsiveness to ministers to supporting lawful and ethical decision-making and advice. They would also clarify the APS Values, lining them up explicitly against its relationship with the Government, the Parliament and the Australian public which the APS is established to serve (under s3 of the Public Service Act). The proposals would also complement the non-legislative recommendations of the Robodebt Royal Commission which the Government has accepted; they would also ensure reforms are sustained into the future.
A prime example of the impact integrity reform should have concerns the provision of legal advice.
‘It is remarkable’, the Royal Commission stated, ‘how little interest there seems to have been in ensuring the Scheme’s legality’; ‘Truly dismaying was the revelation of dishonesty and collusion to prevent the Scheme’s lack of legality coming to light’. The Commission recommended (Recommendation 19) a series of measures about the selection, training and legal practice standards for in-house lawyers in Services Australia and DSS. These have all been accepted by the Government (and presumably are to be applied to in-house lawyers in all departments and agencies). They emphasise the duties and responsibilities of the lawyers including the duty to avoid any compromise to their integrity and professional independence.
Established before the Royal Commission reported, the APS Integrity Task Force finalised its report, ‘Louder than Words’, last December clearly drawing on the Royal Commission’s findings. Its recommendations have been agreed by the Secretaries Board, including the call for reinforcing a culture of legality across the APS and the strengthening of the independence of government lawyers (Recommendation 8).
The actions listed in the report under this recommendation include ‘ensure timely escalation of legal risk within all APS agencies’ with ‘all heads of legal to have direct access to their accountable authority for escalation of legal risk’ and ‘accountable authorities to make clear their expectation that significant legal risks will be brought to their attention, particularly as to the lawfulness of the activities of the agency’.
Now obeying the law is a pretty obvious requirement for integrity and ethical decision-making, but I suspect many have not fully appreciated the meaning and implications of this last action under the Task Force’s recommendation 8.
Sue Robertson, who led the Task Force, spelt out the meaning more clearly in an article for ANZSOG on 13 December last year about the operation of her Task Force. In particular she cautioned that
‘an overly flexible approach to legal advice in terms of “risk” rather than on the question of lawfulness can dilute the clarity of advice to Ministers and inadvertently absolve the APS from its rule of law stewardship’.
Too often in the recent past, legal risk has focused on the risk of legal challenge, not on actual lawfulness. So, while the risk of someone actually challenging the Constitutionality of sports grants, for example, might be low (those who missed out might still hope to get funding later), the important issue is whether the scheme was lawful: what would the courts find if there were a challenge.
In the 2012 Williams case, the High Court found that the Abbott Government’s school chaplains program was unlawful as it did not relate to any of the specific heads of Commonwealth power in the Constitution. In light of that decision, the risk of the sports grants program being unlawful seems significant even if the risk of a challenge was low. Even if the scheme’s Constitutionality was arguable, the basis of the allocation decisions was almost certainly unlawful in terms of the requirements for impartiality under the Administrative Decisions (Judicial Review) Act including that factors which are not relevant (such as the electorate in which the money would be spent) must not be considered.
Strengthening the independence of government lawyers and clarifying their duties and responsibilities could therefore have a big impact on the legal advice going forward. Robodebt might well seem an extreme case of unlawfulness, but the correction required to avoid future Robodebts will almost certainly affect advice in many other situations.
It is essential, of course, that legal advice is requested and that it goes to ministers and cabinet, these being amongst the responsibilities of secretaries and other senior public servants (as well as the AGS). Ensuring appropriate rewards and penalties for them is therefore also essential, as the proposals in my discussion paper are designed to achieve.
With clear advice on lawfulness, it would be a ‘brave’ government that proceeded when lawfulness was seriously in question. That would be apparent in any ANAO audit report to the Parliament.
Perhaps amongst the positive impacts of APS integrity reform, to the benefit of all Australians, will be serious curbing of pork-barrelling (at least at the Commonwealth level).
Andrew Podger is honorary Professor of Public Policy at The Australian National University, and former Australian Public Service Commissioner and Secretary of the Departments of Health and Aged Care, Housing and Regional Development, and Administrative Services. He was national president of the Institute of Public Administration Australia from 2004 to 2010, and a member of the foundation board of the Australian and New Zealand School of Government. He was made an Officer of the Order of Australia (AO) in 2004, and has written extensively on social policy including health financing, retirement incomes and tax and social security, and on public administration.