Free, frank and fearless?
17 September 2019
Source: Lee, S (1962) Amazing Fantasy, Marvel Comics, August issue.
“With great power there must also come–great responsibility!”
Profound words. If, like me, you are a fan of Marvel movies, you can be forgiven for thinking Spiderman’s Uncle Ben was the first to utter them. Both you and I would be wrong.
While there is dispute over their precise origins, statements to similar effect can be found in the Bible; in a 1793 decree made by the French National Convention; in the 1817 debates of the United Kingdom Parliament by Sir William Lamb (later to become Lord Melbourne); in a speech by statesman Winston Churchill delivered to the House of Commons in 1906; in a letter by President Theodore Roosevelt In 1908; and in the text of a speech Franklin D. Roosevelt penned the night before he died which was never delivered.
Apart from Uncle Ben, these were statements made by politicians of considerable historical esteem. They understood their great responsibility to wield their substantial political power for the benefit of the people they served.
So how exactly should politicians exercise their powers responsibly for the betterment of society? That is the million-dollar question to which there are as many answers as there are dollars. My focus is on one: politicians should actively solicit and listen to high quality advice that is free, frank and fearless.
This is not new. Queen Elizabeth I got it. Just three days after her accession to the throne in 1558 she appointed Sir William Cecil (later Lord Burghley) her principal secretary, saying:
"I give you this charge that you shall be of my privy council and content yourself to take pains for me and my Realm. This judgement that I have of you is that you will not be corrupted by any manner or gift, and that you will be faithful to the State, and that without respect of my private wish you will give me that counsel you think best. And if you shall know anything necessary to be declared unto me of secrecy, you shall show it to myself only, and assure you that I will not fail to keep taciturnity therein, and therefore herewith I charge you."
Source: : United Kingdom National Archives, Transcript of Queen Elizabeth I first speech (translated from old English)
Today, more than four and a half centuries later, echoes of Her Majesty’s intent live on and can be found in the legislated values of the Australian Public Service (APS). Subsection 10(5) of the Public Service Act 1999, on the impartiality of the APS, provides that:
“The APS is apolitical and provides the Government with advice that is frank, honest, timely and based on the best available evidence.”
A value that has survived the test of time. One where not only is the onus on public servants to uphold, but where politicians must play their part in creating an environment that enables it to be upheld. Impartial advice always has been, and always will be, an essential precondition of politicians acting responsibly in the exercise of their powers. This and the other values set out under section 10 are integral to legislated expectations about how members of the APS are to conduct themselves. Section 13 of the Public Service Act embeds the APS Code of Conduct including the requirement under subsection 13(11) that an APS employee must at all times behave in a way that upholds the APS values. At risk of labouring the point, this includes the value of impartiality.
The following series of political events that have unfolded in recent times, therefore, fill me with an increasing sense of trepidation.
This month (September) the former chief of staff to Scott Morrison and Peter Costello when both were Treasurers, started as Head of the Department of Prime Minister and Cabinet. Are we seeing the politicisation of the APS?
A month earlier, the Prime Minister made clear his expectation of public servants to “get on and deliver”. Prima facie this is not an unreasonable expectation, particularly when it comes to the “operational” aspects of public administration. But are there risks of it being taken too far?
A year prior, Scott Morrison became Australia’s sixth Prime Minister in just a decade. While many predict that he will hold power longer than his predecessors, will recent history exacerbate the short termism of politics and policies?
In other words, is politicisation, demands for responsiveness and short termism placing at risk a cornerstone of Australia’s proud Westminster tradition of free, frank, and fearless advice?
Starting from the top. So close is he to Scott Morrison that on taking over the reins of the top job in the APS, one reason why he claims he will do his job well, is that Phil Gaetjens will be able to tell the public service what the Prime Minister is thinking. Nifty. But is the expectation that the public sector is responsive, not only to actual policy directives, but to those predicted by those inside the Prime Minister’s political head?
Obviously (or, at least, I hope it is obvious that) I am being facetious to make a point. Indeed, while the opposition characterised Phil Gaetjens as a Liberal operative, he is not the first and, unless things change, will not be the last secretary to be appointed in the wake of an election.
So why all the fuss? Many say it started with the British 165 years ago. However, as a recent article in The Mandarin points out, it started a long, long time before then. In biblical times, it was the underpinnings of the relationship between the Egyptian, Pharaoh, and the Hebrew, Joseph. Later, in China, the Tang Emperor Tai Zong (626-649) embedded the principle of merit-recruitment into China’s civil service through competitive examinations. That is, more than 1200 years prior to the same being recommended in the much famed 1854 report by Northcote and Trevelyan on the United Kingdom’s civil service. And even more years before Australia’s first Public Service Act in 1902 provided for entry to the Service by “open, competitive, and written examinations”, for appointments at a junior level, and that senior positions were closed to outside entrants.
When Northcote and Trevelyan wrote their report, they were decidedly unimpressed by the:
“ … numerous instances … in which personal or political considerations have led to the appointment of men of very slender ability, and perhaps questionable character, to situations of considerable emolument, over the heads of public servants of long-standing and undoubted merit.”
Do not get me wrong, I am not suggesting that Phil Gaetjens is of slender ability or of questionable character. But his appointment flies in the face of Northcote’s and Trevelyan’s advice that:
“… the Government of the country could not be carried on without the aid of an efficient body of permanent officers, occupying a position duly subordinate to that of the Ministers who are directly responsible to the Crown and to Parliament, yet possessing sufficient independence, character, ability and experience to be able to advise, assist, and, to some extent, influence, those who are from time to time set over them.”
So important were processes that preserved the independence of the appointment and removal of public servants, that it stays to this day in the Constitution. Section 67 of the Commonwealth of Australia Constitution Act provides that:
“Until the Parliament otherwise provides, the appointment and removal of all other officers of the Executive Government of the Commonwealth shall be vested in the Governor-General in Council, unless the appointment is delegated by the Governor-General in Council or by a law of the Commonwealth to some other authority.”
Ensuring that political patronage played no part in appointments to, or promotions within, the Commonwealth Public Service was an overriding concern of those who contributed to the debate a few short months after the Commonwealth Parliament first opened, ahead of the passing of the Public Service Act 1902.
Despite this historical legacy, section 67 has proved over time to provide the Parliament too much wriggle room to “otherwise provide” in subsequent takes on the Public Service Act. So much so that in 1971, when John Gorton became Prime Minister, he was widely criticised for replacing the then head of the Prime Minister's Department with a long-time friend. In 1974, the Whitlam Government was criticised for his “unique ability, distasteful ability, to provide jobs for the boys” which had led to a “a complete backlash, a complete indignation, a complete dropping in morale in the Public Service of this nation.”
Following the recommendations of the Coombs report in 1976, then Prime Minister Malcolm Fraser claimed to have reintroduced political neutrality through amendments to the Public Service Act, only to have his provisions gazumped six years later. The grounds provided by the Hawke Government were that they placed inappropriate power in the hands of public servants. This legacy lives on to this day and is evident in subsection 58(1) of the Public Service Act 1999 which provides that:
"The Secretary of a Department is to be appointed by the Governor‑General, by written instrument, on the recommendation of the Prime Minister.”
Immediately after Paul Keating assumed the Prime Ministership in 1991, three senior departmental secretaries were replaced because ministers wanted someone else. The replacements were described as having impressed ministers as doers, but two had also had close connections with the Labor Party. Five years and another change of political colours later, in 1996, six secretaries lost their jobs directly after the election of the Howard Government.
The political games have continued, with heads of departments rolling and new heads being appointed as prime ministers come and go, irrespective of their political colours. It recently motivated former public service commissioner, Andrew Podger, in a speech, to call out what has become the common practice of prime ministers to appoint as secretaries of their department people known and favoured by them personally.
Seen in this light, Scott Morrison’s appointment of Phil Gaetjen is not startling. Yet there has been public outcry. Why? Because by simply becoming commonplace does not make it right. The independence of the public service is essential if its members are to speak truth to power without fear of ending policy careers. Northcote and Trevelyan will be crying in their graves.
Political appointments are one manifestation of the politicisation of the public service. Demanding that the role of public servants is to implement whatever the Government decides is another. Yet that was the unambiguous message in the Prime Minister’s speech to public servants delivered last month (in August). There are so many lines that I could quote from that speech, but I will limit myself to just a select few.
“Central to our reforms of the Public Service was the desire to ensure the government of the country belonged to the elected politicians. We stated at the outset that a key objective was to make the Public Service more responsive to the government of the day; more responsive in the sense that it would be better able to recognise and achieve the Government's overall policy objectives.”
Words reminiscent of those delivered by Prime Minister Paul Keating in 1993:
“Ministers are accountable to the Parliament and to the public through our democratic process for the policies of the Government …
… That is why under our system of Government it must be Ministers who set that policy direction.
And it is why, having set that direction, they will have high expectations, as they should, of the public service when it comes to implementation and delivery of the Government’s agenda.”
Maybe both prime ministers were coached by Sir Humphrey:
Sir Humphrey: "My job is to carry out government policy."
Hacker: "Even if you think it's wrong?"
Sir Humphrey: "Well, almost all government policy is wrong, but… frightfully well carried out."
Source: BBC, Yes Minister, Episode Six: The Whisky Priest.
Or maybe not.
Both spoke of “vacuums”. Keating criticised the Fraser Government for the vacuums that could grow as public servants focused on, what he dismissively referred to as, irrelevant details that bore little resemblance to government priorities. In his speech, Morrison coached his Ministers that they must not allow a policy leadership vacuum to be created and expect the public service to fill it. Apparently one of the worse criticisms bandied in the locker room of politicians is that they have become captive of their departments.
To give both prime ministers (and many that have gone before and between them) their dues, politicians are the elected representatives of the public. And the public will hold them to account come election time. But does that mean they should create their own vacuums that are devoid of frank policy advice, developed without political constraint, and delivered with little fear of repercussion?
That was a rhetorical question, by the way. Of course, they should not. And there are loads of reasons why. A big one is the short period that parties and prime ministers are at the reins provides a strong motivation to preference initiatives that deliver immediate benefits. Public servants have a duty to the Australian public to present, within the mix, options with delayed but large payoffs. Indeed, so big is this reason, that I have dedicated a whole header and discussion to it (below). Another is that public servants are bound to serve the public interest and to safeguard the same by calling out the implications and risks of proposed initiatives. A related reason is that they are the keepers of institutional memory and intellectual capital.
We have already noted that the legislated expectation of public servants is that they provide apolitical service that is efficient and effective in serving the Government and the Australian public. So how does a public servant provide advice that serves both the Government and the public?
History is littered with examples of when too much emphasis is placed on the former to the detriment of the latter. When demands for responsiveness tips over into being complicit, whether instructed to or not: the Children Overboard affair, the mistreatment of Cornelia Rau and Vivian Solon, and payments by the Australian Wheat Board, to name just a famous few.
It is equally littered with accounts of governments’ cries of not being told when scandals erupt. Or where they were told but were selectively deaf to the advice, choosing to ignore it as superfluous and an irritable distraction as they have already made up their minds? Or the advice may not have been proffered at all as public servants anticipated that it will not be well received.
In the same speech referenced earlier, Andrew Podger observed the tendency of some senior public servants to exercise “promiscuous partisanship”: a willingness to go too far in supporting the elected government’s political agenda, then switching when the government changes, and then going too far again.
Am I being overly dramatic? I certainly hope so.
I hope public servants take a broader view of what constitutes good policy advice than the Prime Minister:
“Good government is about receiving excellent policy advice. But that advice is only as good as the consideration in detail that it gives to implementation and execution.
And this is not an exercise in providing a detached or dispassionate summary of the risks that can be logged in the “told you so” file for future reference in memoirs.
It’s about telling Governments how things can be done, not just the risks of doing them, or saying why they shouldn’t be done. The public service is meant to be an enabler of Government policy not an obstacle.”
Which brings me back to the question raised above which I have so far dodged: what is free, frank, fearless advice? A question I will continue to dodge as I do not have an original answer. It has challenged much better minds than mine. However, I will (generously!) share a version of the answer, which I particularly like, that was provided last year by the head of the Victorian public service. To him, it is advice that:
provides the information ministers need, as well as the information they might want, to make a decision;
deals honestly with issues, including those that are difficult and complex, and ensures that ministers are not misled;
is fair, objective, and ignores a public servant’s own private or political interests;
advises ministers of risks and potential outcomes;
adds apolitical value to the commitments of the government of the day;
is politically neutral, but not naïve, allowing the public service to provide trusted advice to successive governments; and
respects the right of democratically elected governments, having received that advice, to pursue their lawful policy agenda, with the expectation that their agenda will be implemented faithfully and diligently.
A final point that I want to make under this header, which I alluded to above, is that public servants are the keepers of institutional memory and intellectual capital. Both are at risk if the priority is implementation to the detriment of advice. The public service will no longer hold appeal to those with analytical minds and a drive to make a difference. Recruitment will be skewed towards the doers and not the thinkers when both are needed. Experienced analysts will become frustrated and leave. The weakening of the APS’s capacity for advice, which the draft Thodey report has already highlighted as a concern, will get worse. And the way will be opened for those with the loudest voices to influence future policies. Not the “quiet Australians”. Sure a few dollars might be saved along the way as the policy shops of departments are downsized. This may well be the plan. But at what price?
“Politicians are like diapers; they need to be changed often, and for the same reason.”
Another quote misappropriated. This time to Mark Twain. While Mark Twain did not hold politicians in high regard, and was a great humourist, he has no claim to this witticism. Particularly as “diapers” was not common parlance in the 1800s. Its origins appear to belong to a local candidate on a Libertarian ticket vying for a United States congressional seat in 1992. Post-election it was dubbed the “best line in a losing cause.”
While one can appreciate the motivation of an aspiring politician to promote frequent change, there is not a lot going for it from a policy perspective. Quite the opposite. Which I will shortly come to. But first, a brief look at the situation in Australia.
Before even accounting for the revolving door of prime ministers, Australia’s three-year parliamentary term is woefully short. Australia is one of only four countries that use a three-year or less term in the lower house of a bicameral (two-chamber) parliament. Seventy-two out of 79 bicameral parliaments – a large 91 percent – have terms of four or five years.
Arguably what really matters is not election cycles, but how long prime ministers hold office for. If your perceptions are coloured by recent history, you are likely to assert that their terms of office have been not very long at all. Indeed, during my last visit to the doctor, which occurred shortly after Malcolm Turnbull was dethroned, when asked to recall who the current Prime Minister is, I could not resist a quip to the effect that surely this is only a good test of a patient’s short-term memory. I am not sure what impact that quip had on the doctor’s assessment of my mental state. I am, nonetheless, chuffed with myself that I get to recycle this joke, if only for my own amusement.
The reality is that the revolving door of prime ministers spins fast or slow depending on what period you are looking at. Over the period captured in the chart below the average is four years five months – longer than the election cycle. However, this is the average of a very bumpy trajectory. It is pulled up by the long terms of office of Bob Hawke, John Howard, and to a lesser extent, Paul Keating. The average since 2007 is more than half that for the full period, at two years two months.
Scott Morrison has already celebrated a year in office. And many predict that he will be around for longer than another year. I have little doubt that he hopes so too. However, will recent history play into his demands for responsiveness? For the delivery of initiatives that yield gains in the short term over those with delayed yet substantive benefits? Either for the purpose of getting re-elected and/or for leaving behind a legacy when leaving office?
As the preceding discussion labours, the Prime Minister’s speech certainly places an emphasis on implementation. It is the focus of the first three of his six pillars. His first pillar is about respect and expect: having set the policy direction, expect the APS to get on with it. His second is about the implementation, stupid. Ensuring services are delivered seamlessly and efficiently, when and where they are needed. The Prime Minister’s third pillar urges public servants to look at the scoreboard: to measure the metrics and stay on track to deliver outcomes.
But what if the outcomes are expected beyond election cycles? Few policy initiatives can be developed, implemented and have any real impact in short timeframes.
In addition to driving demands for measurable results and allocating resources to initiatives that yield quick returns, the short-term nature of politics reduces the willingness of governments to prioritise strategic thinking. The Prime Minister’s speech suggest that he is not exactly enthusing to see another strategy document.
“I don’t know how many beautiful strategy documents I’ve seen over my course of life, in public service and in other fields, people can celebrate these strategy documents, they can be incredibly impressive, but I tell you what, the only strategies that are any good are the ones that are implemented and work.”
To be fair, who can blame the Prime Minister when the clock is ticking, and the next election is just around the corner? When the Joint Standing Committee on Electoral Matters looked into this matter in 2004, one view was that a government spends the first twelve months of its term settling in and only starts taking significant policy steps in the second year, before attention focuses on the election campaign in the third year. Scott Morrison is starting his second year of Government. It is no wonder he is in a rush.
Protecting free, frank and fearless advice
Over the years I have often told my children that there is no sense in complaining unless they have suggestions on what to do about it. In reality, my delivery is a little less tempered. It is generally snarled through gritted teeth: “what do you expect me to do about it?!” Therefore, given that I have just had a protracted moan, I had better come up with some suggestions.
Thankfully, I am not short on some less than fully developed ideas. None of which are original. They have been around for some time and are in play in other countries and jurisdictions.
Without further ado, the first of my (three) suggestions is leadership and stewardship. That is, that the most senior public sector bureaucrats lead through their examples, expectations and championing of free, frank, and fearless advice. And that there is a clear and separate professional head of the APS, focused on stewardship and the APS’s capability to serve future governments as well as the current government.
Not only are these ideas borrowed (from the current head of the Victorian public service and the former APS commissioner, in materials previously referenced), they are already in play. My intent in pointing them out is to bring them to the fore and underscore their importance in an environment where developments in the political arena may challenge public service employees’ perceptions of their roles.
The second is a precondition to giving the first full effect; for supporting courageous leadership. It is that subsection 58(1) of the Public Sector Act 1999, which deals with the appointment of departmental secretaries, be amended to ensure political neutral appointment processes. There are a number of options here.
I am not in a rush to put examinations back on the table. Particularly as most candidates for policy roles will be able to point to post-secondary school credentials and prior experience.
As a Kiwi living in Australia you will have to forgive me for citing the New Zealand example, encapsulated by the State Sector Act 1988. There, appointments are the State Service Commissioner’s responsibility. The legislative requirement is that for each appointment a panel is convened, which may include the Commissioner and/or his deputy or employee, and a panel member recommended by the responsible minister. While ministers may disagree with the advice of panels when referring recommendations to the Governor General, they must have good reasons for doing so.
Another matter that could also be considered to further preserve the neutrality of secretary appointments is their contract terms. When Lord Grey took office as Prime Minister in the United Kingdom in 1830, Sir John Barrow was requested to continue serving at the helm of the Admiralty. It was during Barrow's occupancy of the post that it was renamed permanent secretary. Permanent secretaries continue to this day in the United Kingdom. And, in some departments, there are second permanent secretaries. The principle in 1830 that persists today is that senior civil servants should stay in office on change of government and serve in a non-partisan manner.
If not permanent appointments, other options that could be looked at are making the fixed terms of appointment longer, and ensuring appointment processes are sufficiently distanced from elections.
Third: the term for the House of Representatives should be extended to four years. This is definitely not an original idea. If I were to count the number of times it has been recommended it would take all my fingers and some of my toes. When the Joint Standing Committee on Electoral Matters looked into the issue of parliamentary terms in 2004 it observed that this matter had been on the national agenda since the first Constitutional Convention in 1891, and that since that time, the question of the appropriateness of the three-year House of Representatives term has been asked in various public forums no less than 12 times. The Committee’s recommendation brings the count to lucky number 13. Yet the term has remained stubbornly at three years, despite often bipartisan support for change.
Why? Because it is a Constitutional provision. Section 28 is specific in providing that the House of Representatives continue for no longer than three years from the first meeting of the House. Amendment necessitates a notoriously difficult referendum process requiring a majority vote of the electorate and the States. Australia tried this in a 1988 referendum that sought to change the term to four years for both houses. The vote failed, with only a third of voters in favour and no States supporting the change. While some voters dislike the inconvenience of having to go to the polls every three years, many support the “diaper” principle: elections provide the opportunity to move on (bleep) politicians.
A further complicating factor is that change would need to survive the passage of legislation through both Houses of Parliament. Neither are easy. Particularly if there are knock on implications for the term of the Senate, which is currently twice that of the House of Representatives. The prospect of an eight-year Senate term, may also prove to be particularly distasteful to voters.
However, before we all throw up our arms and declare it to be all too hopeless, indulge me just a little longer as I share a couple of reflections and suggest a way forward.
Reflection number one is that a four-year term does not have to mean a slavish adherence to four years. Just as is currently possible, if confidence in the government is undermined, an early election could be called before the term is up. Four years becomes a maximum that could be undershot. Reflection number two is that, just because the term for Senate is currently twice that for the House of Representatives, does not mean that it has to be.
Now I am going to cheat. My way forward for both this suggestion that the term for the House of Representatives be increased, and for my preceding options for strengthening the political neutrality of secretary appointments, is that they are further developed. That the options are identified and fully explored. In other words, that they become the focus and endeavour of impartial policy experts. The findings of these processes should be shared widely. This is particularly critical for informed voter decisions come referendum time.
Finding policy solutions will be hard. Putting them into effect, harder still. However, to channel another famous politician: “We choose to go to the Moon … and do the other things, not because they are easy, but because they are hard”. And, if I can be so bold as to extend: because they are right.
M: +61 401 088 571