A clumsy protest over the social media use of Senate evidence exposed a deeper problem. The public service must answer to Parliament and the public, while MPs must protect its political neutrality. Both sides need to remember where their responsibilities begin and end.
The reaction to Defence deputy secretary Celia Perkins’ statement at Senate Estimates earlier this month was predictable and understandable. Her 15-second coda to a 10-minute opening statement about the Defence real estate – that public service witnesses “do not consent” to the “reporting of our evidence to social media sites or the reproduction of our likeness for purposes outside the frame of the parliament and the transparent public proceedings of this committee” – was inept and improper.
Equally, however, her underlying concern, spelt out in much more detail in the submission from the Secretaries Board to the Parliamentary Joint Committee on Parliamentary Standards inquiry into the operation and effectiveness of the new Behaviour Codes and Standards in parliamentary workplaces, was far too readily dismissed.
Behind the stoush is a failure of the Australian Public Service (APS) leadership to sufficiently respect its responsibility to serve the parliament and the Australian public as well as the government (section 3 of the Public Service Act), and of some parliamentarians to sufficiently appreciate the importance of public service non-partisanship and the dangers of embroiling public servants in party political debates.
The failure to fully understand the different roles and responsibilities of our different democratic institutions is evident in other practices across the executive and the legislature.
APS roles and responsibilities
For too long the APS leadership has been long on rhetorical commitment to transparency and accountability (emphasised again by Perkins and the Secretaries Board in its submission) and short on demonstrating this in practice.
It has consistently railed against the Freedom of Information (FOI) Act. The government’s FOI Amendment Bill finally withdrawn earlier this year was actively promoted by APS leaders both within the government and before parliament, claiming the current legislation inhibits “frank and fearless advice”. Little if any evidence was presented, for example of documents required to be released by the Information Commissioner or the courts which caused any damage (other than some embarrassment to the government). The leadership was also reluctant to act on the Robodebt Royal Commission’s recommendation of clearer guidance on the keeping of written records, surely the bedrock of the APS value of accountability.
On the other hand, Steven Kennedy and the Secretaries Board make many entirely valid comments in the submission to the Parliamentary Joint Committee. The submission draws attention to the requirements of the new Behaviour Codes and Standards which arose from the Jenkins Report, and to other existing conventions including for broadcasting excerpts from the parliament itself, raising legitimate concerns about how they are being applied in the current communications environment.
Getting this right is also vital to keeping the APS apolitical, as Kennedy emphasises. This is a core APS value. Public servants cannot respond to annotations or misleading edited videos of their evidence without entering the political arena.
The Secretaries Board submission does not call for any serious curtailment of transparency or accountability. It mostly calls on the new Behaviour Codes and Standards to apply in this context with better education of MPs and firmer control by committee chairs. It asks for options to prevent harmful use of committee evidence to be considered and, if such options are not adopted, there be better guidance for MPs consistent with the rules for broadcasting parliament.
Roles and responsibilities of the executive and the legislature
The Jenkins Review and the response to its recommendations have made a significant contribution to improving behaviour in parliamentary workplaces, promoting greater professionalism amongst those working for MPs and clarifying MPs’ employer responsibilities. The initiatives include not only the new Behaviour Codes and Standards but also significant amendments to the Members of Parliament (Staff) Act (following a review conducted by the Department of Prime Minister and Cabinet) and a new Parliamentary Workplace Support Service Act creating the PWSS and the Independent Parliamentary Standards Commission.
While addressing behaviour, however, these initiatives have not adequately addressed institutional issues: the distinct roles and responsibilities of the executive and the legislature in the management of parliamentary workplaces.
The inquiry by the Parliamentary Joint Committee and the parallel Independent Review of the Commonwealth Parliamentary Support System (supported by the Department of Finance), both required by the recent legislation, provide the opportunity to fill this gap while also addressing the effectiveness of the initiatives in improving behaviour.
The new Behaviour Codes and Standards represent a step forward but fall short of establishing for MOP(S) Act employees statutory values and codes of conduct equivalent to those applying to the APS and the Parliamentary Service. Such statutory values and codes of conduct could identify both common behavioural requirements and the distinct requirements of those staff working for the executive (the personal staff of ministers) and those working in the legislature (electoral staff and the personal staff of other MPs).
The design of the PWSS also needs adjustment.
Senator Hanson and other cross-benchers are right when they complain that the prime minister should not determine the numbers and allocation of the staff of MPs other than ministers’ personal staff. The PWSS, which has been asked for advice on this, is inappropriately established as an APS agency reporting to a minister. It should be within the Parliamentary Service reporting to the presiding officers. Ideally, it should come under the Parliamentary Service commissioner, and the APS commissioner should no longer be appointed to the Parliamentary Service commissioner position.
Strengthening the role and profile of parliament
These suggestions would make an important contribution, clarifying the respective roles of the executive and the legislature. But more should be done to strengthen the role and profile of parliament as our central democratic institution.
Dr Val Barrett, a former senior member of the Parliamentary Service, completed her PhD researching the administration of the British and Australian parliaments. She recommended Australia consider establishing a Parliamentary Commission drawing on the British experience of separate commissions for its two chambers (the House of Commons and the House of Lords).
The fact is that the presiding officers in Australia do not, on their own, have sufficient standing to represent and promote the parliament as a whole institution. A Parliamentary Commission, including senior members of the main parties and some cross-benchers as well as the presiding officers, might be better positioned to do so. It would not need a dedicated secretariat but could be supported by the Parliamentary Service commissioner and the clerks of the two chambers.
A Parliamentary Commission or something similar could help to lift the parliament out of the shadows the executive has been allowed to impose on it.
This is an edited version of a piece that first appeared on The Mandarin.
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.