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Last updated: June 1993

Accountability in the Commonwealth public sector

Please note: This document is for reference purposes only and is no longer considered by the APS Commission to be current. It may contain good practice advice and/or advice on the transitional arrangements between the 1922 and 1999 Public Service Acts.

MAB/MIAC REPORT NO. 11 - JUNE 1993

The Management Advisory Board is charged under the Public Service Act with advising the Commonwealth Government, through the Prime Minister, on significant issues on the management of the Australian Public Service (APS).

In December 1989, the Board established the Management Improvement Advisory Committee (MIAC) to bring together a number of senior public servants to discuss significant management issues and initiatives in the APS and to develop detailed advice for the Board. The Committee is broadly representative of the Service as a whole and includes representation from the regional offices of departments and agencies.

In examining issues MIAC looks particularly for models of best practice and information about what better managers are achieving. A line department perspective is emphasised.

This paper is one of a series being published from MIAC's reports to the Board. The Board has agreed to publish these reports to provide Commonwealth public servants with contemporary information on key management issues in the Service.

The Board wants managers to share the experience of others so that they develop their own knowledge and expertise. Public servants should obtain insights to help with managing change in their organisations. In this light, this series of papers is designed to promote discussion and to make best practice in the APS accessible to public servants and to the general reader.

A complete list of the papers in this series is provided inside the front cover of this publication. Details on the membership of the Board and MIAC are inside the back cover.

M.S. Keating Chairman Management AdvisoryBoard

Allan Hawke Chairman Management ImprovementAdvisory Committee

Foreword

In April 1991, the Management Advisory Board endorsed for public discussion and debate an exposure draft of this paper, with a view to seeking a wide ranging debate of the issue.

Since then, the draft has been discussed at conferences and seminars with a broad cross-section of participants, ranging from academics, to parliamentarians, to journalists, to unionists, and to practitioners themselves - public servants.

The paper has been revised extensively to take account of the views expressed. In particular it now puts public sector accountability firmly into a broad context which includes Parliament and the external review processes. It also restates and highlights one of the fundamental principles of our system, wherein the responsibility for policy rests with the government, not with unelected officials. Thus public servants are accountable, through supervisors as appropriate, to the government of the day, which is in turn accountable to the Parliament.

The Management Advisory Board sees this as a summary statement of the main principles and practices in the last decade of the 20th century, which will assist evaluation and understanding by officials of the central role of accountability in their working lives.

Introduction

This paper examines the structure of existing accountability arrangements, both external and internal, and their interrelationship. The main focus of the paper is directed at clarifying accountability arrangements within the public service, in order to establish a framework of accountability principles and practices of relevance to all public servants.

The paper discusses the traditional model of accountability in which secretaries and their staff are accountable to the Parliament through their ministers. The implications of the increasing tendency for senior public servants being called to respond directly to parliamentary committees are discussed with particular reference to the assistance a politically neutral public service is legitimately able to provide to the government in fulfilling its accountability obligations.

The paper also stresses the central importance of the rule of law in the conduct of public affairs, and the significance of external review bodies, such as the Ombudsman and the Auditor-General. It emphasises the obligations of officials in responding to such bodies, as well as the importance of responsiveness to clients and the public.

In the context of the relationship between public servants, secretaries of departments and ministers, and ministers and the Parliament, accountability is defined as existing where there is a direct authority relationship within which one party accounts to a person or body for the performance of tasks or functions conferred, or able to be conferred, by that person or body. Rewards and sanctions are discussed, as logical consequences of the activation of accountability mechanisms.

In describing accountability mechanisms within the public service, care has been taken to clarify the basic relationship between the complementary concepts of authority, responsibility and accountability. A mismatch between the first two elements can weaken the accountability relationship. The paper also recognises that the quid pro quo for the devolution of greater authority and responsibility down the line has been the expansion of accountability requirements up the same line of command. The impact of the budgetary and financial management reforms on this two-way process is outlined.

The paper also deals with the accountability of Government Business Enterprises which provides particular challenges. Potential barriers to accountability have been identified. These include the impact of unclear or multiple objectives, poor organisation structure arrangements and the risks associated with excessively detailed and unfocussed reporting mechanisms.

Appendices to the paper include a few simple, hypothetical case studies in accountability and a series of challenging questions for public service managers about how accountability mechanisms are working in the reformed public service environment. The opportunity has also been taken to reprint as an appendix the Government guidelines for official witnesses before Parliamentary Committees and related matters (1989) (referred to within this paper as the official witness guidelines) which are highly relevant to the subject of this paper. Also relevant are the Guidelines on Official Conduct of Commonwealth Public Servants (1987) recently reprinted by the Public Service Commission.

Scope of accountability

Accountability is fundamental to good governance in modern, open societies. Australians rightly see a high level of accountability of public officials as one of the essential guarantees and underpinnings, not just of the kinds of civic freedoms they enjoy, but of efficient, impartial and ethical public administration. Indeed, public acceptance of government and the roles of officials depends upon trust and confidence founded upon the administration being held accountable for its actions.

As is inevitable with a concept as important and all-pervasive, there are numerous kinds and levels of accountability.

Understanding and appreciating these, and their relationships, represents an important challenge for participants in the process. Such understanding is necessary, both to eliminate uncertainty and to enable them to define their obligations and entitlements in the accountability structure.

Broadly speaking, the accountability obligations of public officials and institutions derive from our constitutional and legal structure with its underlying assumption of accountability of the executive to the parliament and of the parliament to the people, with an independent judiciary as the guardian of the legal rights of the community.

These traditional structures are supplemented by such modern additions as the Ombudsman, administrative appeals tribunals and freedom of information legislation, while in the private sector healthy, independent mass media provide an additional guarantee of, and spur to, public accountability.

Accountability is also, in modern government, a major management tool for ministers and the public service. The budgetary, financial and administrative reforms begun in the 1980s have provided the necessary framework for devolving authority and responsibility. The development and strengthening of effective accountability systems within the public service, and between the public service, ministers and the Parliament are important tasks for the public service.

Background to accountability

The Australian Constitution provides the bare bones for a form of public administration within which accountability can become a central concept. It establishes the conditions under which parliamentary legislative powers exist and provides for an executive government. At elections, which are also provided for in the Constitution, the membership of both Houses is chosen by the electorate. Historical developments have led to the executive government being formed from the party which gains the majority in the House of Representatives.

Governments do not have the power of themselves to implement the major initiatives of their policy platforms: they must obtain that authority from the Parliament by the passage of necessary legislation, foremost among which is the legislation appropriating funds for the purposes of government.

Unable as a matter of practicality to undertake all the multitude of administrative tasks involved, the executive government has delegated substantial powers to an appointed (as opposed to elected) public service. For the same reasons, ministers are equally unable to monitor all instances of the exercise of such delegated powers.

The Parliament, in response to the growing size and complexity of government and in recognition that its own capacity, and that of ministers, to scrutinize the administration is subject to practical constraints, has therefore created separate institutions or structures which themselves enhance public accountability. These include the Auditor-General, the Ombudsman, the Administrative Appeals Tribunal and the Freedom of Information Act.

Not only do such institutions assist and supplement the Parliament's scrutiny role, they provide citizens with access to review or with information about the actions of the executive. They can also enhance ministerial responsibility by providing government with alternative information or advice about the performance of the public service, and may indicate areas where systemic improvements are possible.

There is thus a continuum of accountability relationships between the electorate, the Parliament, the government and the public service. Traditionally, the primary accountability obligation of public servants is to the government of the day. Ministers are accountable to the Parliament for the exercise of ministerial authority, while public servants are accountable to ministers for the exercise of delegated authority. But these hierarchical relationships have now been complemented by public servants' duty to explain or justify their actions to various review bodies and directly to Parliamentary committees where the minister neither knew nor should have been expected to know.

The rule of law

Adherence to the law of the land is of paramount importance for public officials. Other accountability obligations, of whatever weight, must always be subject to the need for actions taken in an official capacity to conform with legal requirements.

The cardinal importance of adherence to the law arises, not just because particular laws exist, but because in a society in which so much responsibility for the administration of public affairs is willingly placed in official hands, the public must be able to rely on the probity of those entrusted with such responsibility.

While in many cases, particularly in service delivery, officials operate in accordance with guidelines decided or approved by government, these guidelines derive from the statutes governing or authorising the particular program and cannot be inconsistent with the law. Officials making decisions in accordance with such guidelines are entitled to assume that such decisions will be lawful. By the same token it is important for them to be conscious that they do not have the right to disregard the law (or guidelines and directions deriving from it) in order to pursue their own concept of the public, or their client's, interest.

There are also common law duties of care in relation to dealing with the public. These do not conflict with other legal obligations of officials but complement them. Essentially they require that the legitimate interests of those with whom the public service has dealings not be damaged by official action or negligence.

The Parliament

Ministerial responsibility

Historically, governments have taken very seriously their obligations of accountability to the Parliament. The concept of ministerial responsibility is entrenched in the Australian system.

As many commentators have noted, ministerial responsibility does not and never has involved ministers in individual liability for every action of public servants to the extent, for example, of offering resignation when something goes wrong with departmental administration.

Ministerial responsibility does, however, imply that ministers accept two major responsibilities: first, for the overall administration of their portfolios, both in terms of policy and management; and secondly, for carriage in the Parliament of their accountability obligations to that institution.

Key vehicles through which ministers meet these latter obligations include parliamentary questions and debates and the provision of detailed information in the context of the budget estimates.

Responsibility of public servants

In the Australian system of parliamentary government, and consistent with the traditional understanding of ministerial responsibility, the public and parliamentary advocacy and defence of government policies and administration has traditionally been, and should remain, the preserve of ministers, not officials. The duty of the public servant is to assist ministers to fulfil their accountability obligations by providing full and accurate information to the Parliament about the factual and technical background to policies and their administration. (the official witness guidelines - see appendix 4).

In recent times, governments have increasingly sought to make more meaningful their accountability relationships with the Parliament. As mentioned above, the public service undertakes substantial functions on behalf of government. As a matter of practicality, therefore, there are accountability relationships between government and the public service and from the public service through (or on behalf of) government, to the Parliament.

The principal formal accountability mechanisms in this context are the agency annual reports, which are reports from the relevant agency head to the portfolio minister, for tabling in the Parliament; and the program performance statements, which are authorised by ministers for use by the Parliament in consideration of the budget estimates and the additional estimates.

Between them these documents, which to some extent overlap, provide the government and the Parliament with detailed information about the operation of government programs, assessments of results and forecasts of future needs and expectations.

The content of annual reports is subject to requirements which, in the case of departmental annual reports, must be approved by the parliamentary Joint Committee of Public Accounts (Public Service Act 1922, s 25(7)).

The public service has developed the program performance statements over a number of years in co-operation with, and to meet the needs of, Senate estimates committees. They are compendious, comprehensive documents providing a highly detailed account of the administration of government programs.

The form and nature of the documentation is evolving and will continue to develop, but the Parliament today has available to it more information, and more useful information, about the operation of the executive arm of government than has ever been the case in the past. That information is prepared, for the most part, by officials under ministerial authority.

It is not surprising, therefore, that it has increasingly become the role of officials to give evidence directly to the Parliament, acting through its various committees.

In doing so they provide information about policy on behalf of ministers, but are not empowered to justify or defend policy judgments or options (see official witness guidelines, paras 2.15, 2.25 to 2.27). They have also needed to explain and justify management and administrative decisions involving the exercise of delegated authority, where it is not possible or necessary for ministers to deal with matters personally and where policy judgments are not involved.

These developments have been encouraged by governments as extensions of, and improvements to, executive accountability. They have seen the public service as providing important and increasing support to government's accountability obligations and have not, therefore, sought to limit access by the Parliament to officials, relying instead on the operation of the official witness guidelines to provide the parameters for the relationship.

The Parliament, too, has taken significant steps to enhance its scrutiny role. The most recent development in this regard has been use by the Senate of its standing committees to scrutinise legislation before it reaches the second reading stage. Ministers and officials have devoted considerable effort to explaining to these committees the purpose and content of the measures under consideration.

It can be expected that these trends will continue and that officials will increasingly be required to provide support to government in its parliamentary accountability activities, in accordance with the principles and practices set out in the official witness guidelines.

External review

The courts

As noted above, all activities of public officials derive from or are subject to legal rules and constraints. It is frequently the case that actions of officials are the subject of challenge in the courts. In most cases of challenge, the official will have taken the action under review in exercise of a delegated ministerial power.

In addition to the more traditional remedies, the Parliament has provided, in the Administrative Decisions (Judicial Review) Act, a means whereby decisions taken pursuant to statute may be simply challenged in the Federal Court. That Act also provides for persons aggrieved by decisions to obtain statements of reasons for those decisions.

In general, since decisions are made pursuant to delegated authority, in the formal sense the challenge will be directed at the Commonwealth, or more specifically a minister. Officials giving evidence, therefore, do so on behalf of the Commonwealth. Their duty is to provide a full and frank account of the Commonwealth's position, to assist the court arrive at an informed decision.

In the event of the court setting aside a decision under review, it will normally remit the matter to the decision-maker to make a fresh decision. The fresh decision must be made in accordance with rules of procedural fairness and in accordance with any guidance provided by the court on the interpretation of the relevant law. In addition, officials have a duty to ensure that the government is aware of any important implications of a court judgement and any new decision that may result. It is not for individual officers to take upon themselves, without approval, the task of amending policies or procedures decided by the minister or the government.

The Administrative Appeals Tribunal

The Parliament has created a system of so-called merits review of a range of specified administrative decisions. Most merits review is undertaken by the Administrative Appeals Tribunal, which under its enabling Act may, in most cases, substitute its own decision for that of the decision-maker - who may be a minister or an official.

The duties of officials in relation to the provision of information to such tribunals are as described above for the courts.

Once the tribunal has made its decision, and if there is no appeal, it is the responsibility of officials to implement it with the same efficiency and vigour that would apply to any other such decision. Their accountability is not for the decision (which is the tribunal's) but for implementing it and dealing with any longer-term implications including advising the government on these as necessary.

Investigative agencies

The Parliament has also created a number of statutory bodies which undertake functions involving scrutiny of the executive. The first of these was the Auditor-General who, in common with international counterparts, has a close relationship with the Parliament and assists the Parliament with its scrutiny role in relation to Commonwealth finances.

More recently, other bodies have been created with functions involving scrutiny of official actions.

The Commonwealth and Defence Force Ombudsman has the widest jurisdiction, and is able to investigate most administrative actions of officials, either as a result of a complaint or at his or her own discretion. The Ombudsman has the power to obtain documents and take evidence on oath.

Other, more specialised agencies, such as the Merit Protection and Review Agency, the Privacy Commissioner and the Human Rights and Equal Opportunity Commission, have comparable powers to examine the actions of officials.

Scrutiny by such external review bodies has become an integral and vitally important part of the modern accountability process:

• the findings of these bodies assist the Parliament in its own appreciation of the activities of the executive;
• they also enhance ministerial responsibility by providing information which ministers can use to evaluate the effectiveness of the public service;
• they encourage open, fair decision making; and
• they provide citizens with the capacity to obtain impartial, effective review of official actions.

The responsibilities of officials in relation to such agencies are defined, for the most part, by the powers the agencies possess. Apart from that, however, and as with parliamentary and other inquiries, it is the duty of officials to exhibit attitudes of openness and cooperation in their dealings with them and not allow adversarial relationships and attitudes to develop.

An adverse finding by the Ombudsman or any other investigative agency, or the setting aside of a decision by a court or tribunal, does not of itself imply criticism of the official involved. Officials need not, therefore, feel defensive or threatened in their dealings with these bodies.

Freedom of information

The Freedom of Information Act, which provides a general right of access to documents in the possession of government, is a significant aid to accountability.

Its major users are clients of government seeking access to material relating to them personally. Having such access enables them to ensure that they have been dealt with fairly and to contest decisions, if they need to, on the basis of knowledge of the facts.

The Freedom of Information Act increases the accountability of officials because they know they can be held responsible, through its operation, for the reliability of the information and advice they place on record.

Exercise of statutory powers

In many cases, the Parliament has chosen to provide individuals, including officials of departments, with statutory powers to be exercised independently of the minister.

The question arises of where the accountability obligations of such statutory officials lie.

There is no simple or single answer, because different powers are conferred by individual statutes and the accountability arrangements vary according to the nature of the power and the perceived need for involvement by government or the Parliament.

There are some powers of office (such as the investigative and reporting functions of the Ombudsman or the Auditor-General or the SES appointment powers of the Public Service Commissioner) where the clear intention is that neither ministers nor the Parliament be able to influence their exercise.

This is not to say that these officers are in no sense themselves accountable, since the legislation provides means for their removal from, or forfeiture of, office in certain restricted circumstances and for annual reports to the minister for presentation to the Parliament. In specific areas, however, Parliament and the executive have chosen to remove themselves from the exercise of the power and from influence over it.

In other cases, particularly in areas involving exercise of discretions by departmental officials, the exercise of statutory powers will be prescribed or determined by the legislation and may legitimately be influenced by objectives and priorities set by the minister. The accountability relationship with the minister, and through the minister to the Parliament, may approximate that pertaining under departmental arrangements.

Finally, while there may be varying degrees of accountability in relation to the exercise of statutory powers, the accountability obligations for other matters, such as service-wide personnel or financial accounting policies, will generally speaking be identical to those of non-statutory officials.

Clients and the public

The activities of government do not take place in a vacuum. Every program affects, or potentially affects, individuals or groups outside the Commonwealth government.

Most agencies find it relatively easy to identify their major clients. The Department of Veterans' Affairs is an obvious example of an agency with such a readily identifiable clientele.

In fact, however, officials have the responsibility, on behalf of government, to deal equitably, justly and responsively with all individuals or groups whose interests they may affect, even when the relevant program may not be designed to confer a benefit on those affected (such as a law enforcement program in relation to offenders).

That responsibility derives partly from the operation of the law. As noted previously the law, and government guidelines derived from the law, establish the framework for public service decision-making, and therefore for how and for what officials should be held accountable. In addition, the law increasingly requires that the principles of natural justice such as providing a hearing to people affected by decisions, apply to official actions. Departure from those principles can render actions liable to be set aside by a court or tribunal.

Public servants also need to be conscious that government, in recognition of and in response to community expectations, requires these standards of officials on its behalf. The Guidelines on Official Conduct are particularly relevant in this context. Officials do not, however, have the authority to set aside the law and associated guidelines in pursuit of their own concept of the public interest.

The thrust of the reforms to the public service announced by the government in 1983 was to give Australians a public service that is more efficient, more responsive, more accountable to the elected representatives of the people, and more in harmony with the diverse needs of the community it serves. (White Paper on Reforming the Public Service, 1983).

A major theme of the reforms has been to provide the conditions for improving the quality of service to the public. It is now clearly the duty of officials to consider and respond to the needs and aspirations of clients in the administration of programs.

Officials are, therefore, accountable to government for the quality of their dealings with clients as well as for the most cost effective achievement of program objectives.

Responsiveness does not, however, begin and end with the fair and equitable delivery of services, involving as it does the application of existing policy within any relevant rules or guidelines.

In our system, which does not have a rigid delineation of administrative and policy functions, there is the capacity for deliverers of services to have a positive and proactive role in policy development. They are able to identify difficulties arising from the application of existing policy and, in appropriate cases, to devise solutions or improvements. Very often this will occur because of feedback from clients. One manifestation of this responsibility is the government's requirement that all programs be evaluated regularly to establish their continued relevance and cost effectiveness.

In this context officials should see their accountability obligations as including ensuring that relevant views of clients, as well as advice about possible improvements to policy or difficulties with its application, are brought to the attention of decision-makers. They should also, as appropriate, exercise delegated authority to initiate improvements themselves.

Roles within the Public Service

The accountability framework

The Public Service Act (s 25(2)) provides that the Secretary of a Department shall, under the Minister, be responsible for the general working, and for all the business thereof, and shall advise the Minister in all matters relating to the Department.

Ministers are, therefore, responsible for the overall management of their departments and, by virtue of responsibility for portfolio legislation, other agencies in their portfolios. They are accountable to the Parliament, inter alia, for the exercise of those responsibilities.

Within this accountability framework, public servants are accountable to ministers.

Although the scale of government operations is too large for any more than a small minority of public servants to be directly accountable to ministers in this way, delegation arrangements ensure that there is an identifiable chain of accountability.

In the context of this structure, it is useful to see accountability as existing where there is a direct authority relationship within which one party accounts to a person or body for the performance of tasks or functions conferred, or able to be conferred, by that person or body. It is important to understand that this concept of accountability does not imply simply providing information or answering questions, but includes setting goals, providing and reporting on results and the visible consequences for getting things right or wrong, including rewards or sanctions as appropriate.

It also implies delegation of responsibility and authority, an essential element of which is that the delegator does not lose responsibility for performance and, therefore, depending on the circumstances, may be called to account.

The relevance of this definition to management practice needs to be understood at all levels of Commonwealth administration.

The minister and the secretary

As noted, the secretary is responsible, under the minister, for administering the department. Secretaries, of course, have many functions and responsibilities (for a detailed exposition see a paper by Mike Codd, The Role of Secretaries of Departments in the APS, AGPS, March 1990), but their primary accountability is to the minister.

In managing their portfolios, ministers are actively engaged in policy development and decision-making, which involve setting objectives and deciding priorities. It is important that secretaries establish adequate information systems to help ministers monitor the implementation of government policies.

Ministers may also develop specific guidelines on program or administrative objectives and priorities from time to time. It is therefore necessary to have management systems - accountability systems - which assist ministers in carrying out their responsibilities.

Ministers and secretaries delegate powers, but that does not mean that either the minister or the secretary is directly accountable for each and every detailed administrative act. But if, for example, there is recurring poor performance and this poor performance reflects systemic failure, then senior management is responsible and accountable even if day-to-day administrative authority has been delegated. In such instances, secretaries should have established the monitoring systems to trigger such intervention and should have intervened. Furthermore, once a power is delegated the delegate must exercise the power independently, although depending on, for example, the legislation involved, ministerial directions or guidelines may need to be taken into account.

Secretaries and departmental staff are accountable to the Parliament through their ministers according to long established convention. For example, a secretary's annual report, detailing among other things administrative efficiency, is addressed to the minister who, in turn, presents the report to the Parliament.

Public servants and accountability mechanisms

The Australian Public Service employs about 150 000 people in the departments and budget-funded agencies which make up the seventeen portfolios, each headed by a portfolio secretary accountable to a cabinet minister. This large group of public servants works on a myriad of government tasks in hundreds of locations, in Australia and overseas.

An important objective of recent reforms of the public service has been to improve value for money by increasing the focus on the purposes of government policies and programs and performance against them, that is to improve outcomes.

The reforms have been underpinned by greater devolution, accompanied by increased decentralisation and delegations. A major thrust of the reforms has been to place the responsibility and authority for making decisions with those best placed to make them, such as staff dealing directly with the public.

Increasing the level of devolution and decentralisation cannot work effectively unless accompanied by appropriate delegations, that is, the transfer of formal instruments of authority to a public servant to act as an agent or representative of the minister or the secretary. There has been a marked increase in the delegation of financial and personnel management powers in recent years. Thus, holders of delegations have a clearer understanding of for what they may be held accountable.

Within agencies, responsibility and authority are devolved and delegated from secretaries to public servants down the line, including those who deal directly with the public on a daily basis. Essentially, devolution and delegation, the incidence of which increased during the 1980s, involve a better matching of authority and responsibility. Agencies have employed a range of models for achieving greater balance between the two as befits the nature of their operations.

Centralised controls risk a blurring of the relationship between responsibility and authority so that no-one accepts responsibility where those who are tasked to achieve certain goals lack sufficient authority. When those who have responsibility also have the authority, individuals can properly be held accountable as need be at successive levels up the line, for the proper exercise of whatever tasks have been devolved to them.

Managers, too, need to be conscious of their responsibilities to staff in the context of increased devolution, combined with the need for increased accountability.

It is insufficient to see accountability mechanisms within agencies as involving simply a one-way flow of information and reporting. In a devolved management environment staff at all levels need to have readily available all the information they may require to do their jobs properly. Such information includes, but is not restricted to:

• clear statements of the government's objectives and the organisation's role in achieving them;
• information about the resources available to operational staff to implement programs; and
• mechanisms to enable them to have input into the decision-making process.

The quid-pro-quo for the devolution of greater authority has been the expansion of accountability mechanisms within the public service. The receivers of devolved powers and new delegations must be prepared to accept the new responsibilities and the accountability that goes with them. The complexity of demands for accountability and responsiveness that now exist for middle-to-lower level managers is illustrated at appendix 3. In order to meet their accountability requirements, public servants have installed management information systems which help them to monitor and report on program performance (including client feedback) up the accountability chain.

Through corporate planning and program management and budgeting processes, agency goals, program objectives, performance measures and evaluation strategies have been developed and articulated throughout the organisation. They provide a framework within which secretaries assign and regularly review objectives and goals for particular areas, and define the authority, responsibility and accountability passed to managers. This framework enables managers to report up the line more precisely on the results they were meant to achieve. High quality management information systems are important in this reporting process.

Managers also need to have mechanisms in place to take account of, and utilise as necessary, the results of external scrutiny, whether comments from the Parliament and its committees, findings by the courts or recommendations of bodies like the Ombudsman or Auditor-General.

Public servants have several avenues available for reporting on their performance and accounting for the appropriate discharge of their duties. Key external documents include annual reports and annual financial statements, while a plethora of internal reports is generated from management information systems and evaluation and audit groups. It is important that those devolving powers, right up to the Parliament, are provided with timely, relevant and accurate feedback on the performance of public servants, both collectively within agencies and, as need be, on an individual basis.

In moving the public servant's attention to focusing more on results, care has been taken to balance this against the traditional concerns for probity and due process. Due process, fair dealing and the clear requirement to work within the law continue to be mandatory, but are not sufficient in themselves as a focal point for public servants.

Public servants will have noticed that many of the detailed and prescriptive controls over process have been removed, and the emphasis of accountability is now more on what is to be achieved. Today, public servants use risk management techniques which involve a more explicit assessment of the risks involved in taking a particular decision. Risk management recognises that mistakes will be made - but should not be repeatedly made. That would be risky management as would the case of a single palpably obvious and serious mistake that could have been avoided. If need be, public servants would be expected to defend the judgments involved in that risk assessment before ministers and, through them, parliamentary committees. Adoption of a risk management approach has not led to any diminution in the requirement for due process, but rather to a heightened focus on cost-effective outcomes. Moreover, the public management reforms could be said to focus on performance and 'sins of omission' as well as on due process and 'sins of commission'.

A major, recent enhancement to the individual accountability requirements of senior public servants has resulted from the introduction of performance appraisal systems.

These senior people translate the strategic goals and objectives of corporate plans into operational workplans and individual performance agreements which focus on the results they intend to achieve during the next twelve months or so.

This process offers clearer lines of accountability to the secretary as to the results achieved and the performance of the more senior people in the public service.

Under the performance appraisal system, all senior public servants now know what they personally will be called to account for and when. It will occur at least annually, when existing performance agreements are discussed and new ones are being developed. Of course, circumstances may cause some senior public servants to be called to account more often.

Government Business Enterprises

Like budget-dependent agencies, government business enterprises (GBEs) have been subject over recent years to a wide-ranging package of reforms. The Government's framework for the management of GBEs and their accountability, Policy Guidelines for Commonwealth Statutory Authorities and Government Business Enterprises, was presented by the Minister for Finance in October 1987. This framework is reviewed frequently in the light of experience.

Under the reforms, GBE managers are now provided with much more freedom to take day-to-day management decisions without referring to other areas of government or to ministers. The Government is now involved in overseeing GBEs at the strategic level, basically focusing on the overall financial performance of the enterprise against previously agreed targets.

To accompany this loosening of controls, a number of initiatives have been taken to ensure an enhanced level of accountability. The boards of GBEs now must clearly focus on achieving agreed performance targets over a set time period. GBE boards are also to be held accountable for enterprise performance-with the grounds for removal of board members expanded accordingly, to include ongoing under-performance.

Corporate plans are now required to be presented to the Government at least annually. As well as stating the financial target for the future, the corporate plan provides the main vehicle by which government may review past performance, assess the exposure of taxpayers to risk and approve or amend the future business strategies put forward by the GBE board. The financial targets and associated business strategies presented in the corporate plan must also be addressed by the enterprise's annual report.

Reflecting their own accountability obligations to the Parliament, governments actively seek to hold boards accountable for their performance against the corporate plan. Regular monitoring of financial and other performance criteria is increasingly becoming an element of this accountability relationship.

Consistent with GBEs being charged to manage commercially, and the Government withdrawing from operational detail, the Government should no longer be answerable for purely commercial decisions, including contract details, location of services and so on. Rather the Government through its approval of the corporate plan is accountable for all decisions affecting the overall performance of its GBEs and their strategic direction. In this regard, the Government's role is significantly more than the passive shareholding relationship found in some private companies.

Individuals are accountable through an accountability chain applying in GBEs as follows:

• staff in GBEs are accountable to management, and ultimately to the board through the chief executive officer (CEO);
• the CEO, as the individual in charge of day-to-day management, is accountable to the board;
• individual board members (including the CEO), and the board itself, are accountable to the relevant portfolio minister for achievement of the corporate plan and financial targets; and
• the minister, on behalf of the Government, is accountable to Parliament for the performance of GBEs within his or her portfolio.

Potential barriers to accountability

Proper accountability can be threatened by failure to specify simply and directly the goals and purposes of organisations and their component parts. Corporate planning, program management and budgeting and associated measures are intended to reduce this risk.

The structure of organisations can also militate against effective accountability. It is most important that individuals are not confused about whom they are accountable to, and who is to account to them. Organisations in which lines of authority are unclear will be at risk, as will organisations with too many layers of authority.

Multiple objectives, too, can be a problem. 1n contrast with private sector organisations, whose overall rationale is profit, public service departments rarely have simple or limited goals. As circumstances change, the relative priority of different objectives and the balance between them can shift. A variety of policies and legal requirements, many of which have no obvious or direct connection with a program's objectives, may also combine to influence the conduct of public servants.

There is nothing wrong or objectionable in this. It is a normal and proper feature of government. But ministers and senior public servants will probably, as a result, have a variety of accountability obligations even with relatively simple programs. There need to be arrangements to ensure that these obligations are met while maintaining a focus on efficiency and effectiveness.

An associated risk is that of too many, or too complex, reporting mechanisms. There is a danger of mistaking the form of accountability for the substance. Operational staff must not be overwhelmed with requirements for reporting and assessments to the extent that operational requirements no longer seem to be their major role. Excessive reporting detail, unrelated to the primary purposes of the accountability regime, could even serve to reduce accountability by obscuring the focus on performance.

Effective management information systems give senior managers the means of monitoring performance without the continual need for elaborate and arduous reporting by people down the line.

There is also the problem of devolution versus central control. In a system where the delegator of power does not lose responsibility for its exercise, the temptation always exists for unnecessary interference. The accountability mechanisms need to encourage in managers the confidence that they can effectively devolve decision-making by monitoring performance and without giving up the responsibility to make strategic decisions and judgments.

As mentioned earlier, there is the question of rewards and sanctions. In our system of government these are relatively clear for politicians. The position in relation to public servants, however, is more complex. The public service does not enjoy the freedom of the private sector either to reward success or penalise failure. Indeed the concepts of success and failure are themselves rather less clear-cut in the public service than in private enterprise. Yet sustaining effective accountability without any rewards and sanctions would be difficult.

In this context, the main questions to ask are what the appropriate rewards and sanctions might be, and when they should apply. Traditionally, publicity has been used as a sanction and to a lesser degree as a reward. Promotion has also often followed from good performance, and steps have been taken in the direction of performance pay in some areas. Rewards in the public service, however, may also be expressed in terms, for example, of increased autonomy or responsibility rather than in purely material terms. And in relation to sanctions, just as a minister need not accept responsibility for every isolated deficiency in his department, so a departmental program manager, although still having overall responsibility for the program, might not necessarily be liable to sanctions for every mistake make by individuals in a devolved environment. On the other hand, senior managers might well be held accountable for major mistakes or systemic deficiencies.

Appendix 1: Making accountability work

The key issues which public sector managers need to address in the early 1990s are:

• how well the accountability mechanisms are being used by departments and agencies in the reformed management environment;
• how effective they are in reinforcing the government's reform agenda; and
• whether they have enhanced program performance.

In this context, program managers need to build accountability mechanisms into their management processes and be alert to changes they might need to make to improve the present accountability processes.

The following specific issues are presented as a guide to assist public service managers at all levels in addressing these questions:

• Are authority and responsibility for operational policy and budgets (such as programs, divisions, regions, responsibility centres) clearly defined?
• Are authority and responsibility for human resource management decisions (such as staff training and development) clearly defined?
• Can separate levels or types of accountability be identified for different layers of management?
• How do accountability mechanisms (including external review mechanisms) impact on middle managers in regional offices and on public servants dealing directly with clients?
• How are organisational plans (such as corporate, evaluation, management audit, information technology plans) translated into action by individuals (that is, who does what)?
• How are individual appraisals linked to an agency's overall performance assessment and corporate plan? Has the appraisal system been used to clarify the accountability framework and is there potential to exploit this mechanism further?
• How is discharge of the assigned responsibility measured and dealt with in terms of rewards and sanctions?
• Do job position descriptions and selection criteria provide enough information about the accountability requirements of the occupant?

Appendix 2: Case Studies in accountability

The parliamentary committee case

A parliamentary committee, in the course of taking evidence, asks a middle ranking public servant to table a document of which he or she is the author. The document, while largely factual in nature, has not been seen by the minister and contains information of a kind the minister has not authorised officials to provide to the committee. The minister is not present at the hearing.

Answer:

The minister is accountable to the Parliament and must be allowed to decide whether, and if so when, the information should be revealed. The officer should seek the committee's permission to consult the minister (see paragraph 2.10 of the official witness guidelines).

The officer should, thereafter, ensure that the minister is aware of the implications of the various courses of action that may be available. If the minister, after due consideration, decides not to authorise tabling, the officer may need to explain this to the committee on the minister's behalf.

The Ombudsman case

The Ombudsman's office, in the course of informal inquiries about a complaint, suggests to the officer responsible for the action complained about that a mistake appears to have occurred and should be corrected. The officer has the authority to correct any mistake without reference to supervisors.

Answer:

The officer's duty is to reach a view about whether a mistake did, in fact, occur. If so, assuming it is possible to correct it the officer should do so, informing the Ombudsman's office and the complainant promptly. The officer is accountable to his or her supervisors for implementing any such action and for its effects, and to ensure that any procedural implications of the initial error are not ignored.

If, in the opinion of the officer, a mistake did not occur, or did occur but corrective action is either impossible or unwarranted, the officer is not obliged to accept the suggestion of the Ombudsman's office. The officer should ensure that the Ombudsman's office is aware of his or her conclusion and the reasons for it. The officer should also consider whether supervisors should review the decision. The officer is accountable to supervisors for the initial action and for advising on any implication of declining to accept the Ombudsman's suggestion. The officer may also, depending on developments, need to answer further questions about the case from the Ombudsman. When conducting a formal investigation the Ombudsman has wide-ranging powers to obtain information and documents.

The Administrative Appeals Tribunal (AAT) case

The AAT reviews an officer's decision, made in accordance with departmental guidelines, and substitutes a different decision. The new decision, if followed as a precedent, could have a major adverse impact on the relevant program.

Answer:

The officer, or the officer's supervisors, should consider whether there are grounds for an appeal, seeking legal advice as necessary. If so, the agency should appeal the decision. 1f appeals fail, or if there are no grounds for appeal, the agency must decide whether the policy remains appropriate and if so whether to recommend legislation. In normal circumstances such legislation would be aimed at restoring the desired policy position, but would not affect the case the AAT had decided. The agency would not be accountable for the decision, which is the decision of the AAT, but would remain responsible for implementing the decision as speedily and effectively as it could.

The benefits case

(i) External review

A review tribunal (such as the Social Security Appeals Tribunal - SSAT, or Student Assistance Appeals Tribunal SART) receives a request from an agency's client to review a decision which the client considers unsatisfactory. While re-examination of the decision is made on the facts known at the time of the re-examination, legislative provisions vary as regards the involvement of the agencies and the officers who made the original decision. SSAT only considers a submission from the agency involved without agency representation, while SART requires an agency presence and a contribution to proceedings. It need not necessarily be

the service deliverer, (that is the officer who made the decision) who attends, but the officer representing can be questioned on the decision-making.

Answer:

A tribunal considers the merits of a case and may decide to:

• affirm the decision;
• vary the decision; or
• set the decision aside and, generally, substitute a new one.

Officers may accept a tribunal's decision or, if it is seen to be contrary to the spirit of the benefits legislation and Government's intent, recommend to senior officers that the matter be pursued through the Administrative Appeals Tribunal. Team leaders, or more likely central office managers, would take legal advice before proceeding further.

(ii) Internal review

A client is dissatisfied with a decision, and as the initial stage of appeal, seeks reconsideration by either the service deliverer, or officer supervising. Agencies have various arrangements. Included among these is a formal stage of internal review involving review officers authorised under legislation, such as administered by Social Security, DEFT (Newstart and Student Assistance) and DIEA.

Answer:

Besides re-examining the facts of the case and making a fresh decision, internal review officers have an obligation to ensure correction of any serious or recurring errors in the administration of programs through advice to service deliverers, and appropriate inclusions in staff training and development activities. They may also need, as appropriate, to advise more senior officers if repeated applications for review appear to indicate defects in policy.

Appendix 3 : Public Service responsibility and accountability framework

The corporate and management cycle

Appendix 4 : Government Guidelines for Official Witnesses before Parliamentary Committees and Related Matters - November 1989

Introduction

Accountability

1.1 In the Australian system of parliamentary government, and consistent with the traditional understanding of ministerial responsibility, the public and parliamentary advocacy and defence of government policies and administration has traditionally been, and should remain, the preserve of Ministers, not officials. The duty of the public servant is to assist ministers to fulfil their accountability obligations by providing full and accurate information to the Parliament about the factual and technical background to policies and their administration. The guidelines are therefore aimed at encouraging the freest possible flow of such information between the public service, the Parliament and the public.

Scope of guidelines

1.2 he guidelines apply primarily to the preparation of submissions and the giving of evidence to parliamentary committees by officials, although sections 3-6 also discuss their relevance to contexts outside parliamentary committees, including party committees, Royal Commissions, individual Members of Parliament, speeches, public inquiries and court appearances.

1.3 The previous version of the guidelines was tabled in the Parliament in August 1984. Changes have been made to take account of the Senate Parliamentary Privilege Resolutions of 25 February 1988 (see appendix) and recent experience with the appearance of witnesses before parliamentary committees.

Parliamentary committees

Application of Guidelines

2.1 This section is designed to assist departmental officials, statutory office holders and the staff of statutory authorities appearing before parliamentary committees, by informing them of the principles they are required by the Government to follow. It is recognised, however, that the role and nature of some statutory authorities will require the selective application of these guidelines (see paragraph 2.49).

Parliamentary rules of procedure

2.2 This section also takes into account the Senate Parliamentary Privilege Resolution of 25 February 1988 which include procedures to be observed by Senate committees in their dealings with witnesses. (References to the Senate resolutions in these guidelines appear as r.1.1; r.1.6 etc.) At the time of tabling these guidelines, the House of Representatives had not dealt with the committee procedures which have been proposed by the Standing Committee on Procedure. These are broadly similar, with some additions, to the procedures adopted by the Senate.

2.3 These guidelines should, nonetheless, be read in conjunction with the Senate Parliamentary Privilege Resolutions, the House of Representatives Standing Committee on Procedure's Report on Committee Procedures for Dealing with Witnesses dated 4 April 1989 and the Parliamentary Privileges Act 1987, particularly sections 13 and 16.

Inquiries into administrative matters

2. Where a committee's inquiry is directed towards the examination of departmental administration and practice, it is for the departmental Secretary, with the general consent of the relevant Minister, to use his or her discretion as to the extent to which aspects of these guidelines, such as the clearing of written evidence and the selection of witnesses, are to be followed. In this context a witness should also be aware of the provisions of s.12 of the Parliamentary Privileges Act (see para 2.40).

Committees dealing with individual conduct

2.5 Where a committee is inquiring into the personal actions of a Minister (or official) and seeks information from officials, there may be circumstances where it is not appropriate for the requirements set out in para 2.14 for clearance of evidence to be followed. (Note also that the Senate resolutions provide that a witness may apply to have assistance from counsel during the course of a hearing (r.1.14 and r.1.15). See para 2.42.

Joint statutory committees

2.6 The Public Works Committee Act 1969, the Public Accounts Committee Act 1951 and the Australian Security Intelligence Organisation Act 1979 provide for the summoning of witnesses and raise some special considerations. For example, s.23 of the Public Works Committee Act makes special provision for hearing of evidence on confidential matters and the Public Accounts Committee Act and the Public Works Committee Act have special provisions relating, among other things, to self-incriminating evidence (see ss.19 and 25, respectively). In these and similar cases, the special provisions of the relevant Acts take precedence.

Preliminaries to an inquiry

Requests for attendance

2.7 Generally requests for an official to attend a committee hearing in an official capacity, or to provide material to it, are made through the relevant Minister. There are, however, exceptions - for example the Estimates Committees and the Public Accounts Committee (see para 2.4). (Note also that the Senate resolutions provide that a witness will be invited to give evidence or produce documents, but may be summoned to do so if circumstances warrant such an order (r.l.l and r.1.2).)

Choice of witnesses

2.8 A Minister may delegate to the departmental Secretary the responsibility of deciding the official(s) most appropriate to provide the information sought by the committee. It is essential that the official(s) selected should have sufficient responsibility or be sufficiently close to the particular work area to be able to satisfy the committee's requirements.

Preparation of witnesses

2.9 It is also essential that all witnesses are thoroughly prepared for hearings. Such preparation should include ensuring familiarity with probable lines of questioning, either by discussion with the committee secretariat or, in the case of Estimates and similar inquiries, by ascertaining from the committee secretary or from Hansard and other sources the issues that are likely to be of interest to committee members. Officers who have not previously attended committee hearings should receive briefing on the requirements, and senior officers should satisfy themselves, so far as possible, that all witnesses are capable of giving evidence creditably.

Consultation with Ministers

2.10 As appropriate, witnesses should consult the Minister before a hearing and, if required, the Minister representing in the other House. Examples of the need for such consultation would be in relation to possible claims that it would be in the public interest to withhold certain documents or oral evidence, or requests for the hearing of evidence in camera (see paras 2.22 to 2.38).

Senate resolutions

2.1 Officers appearing before Senate Committees should also make themselves aware of the Senate resolutions relating to the rights of witnesses (r.1.1 - r.1.18) and matters which may be treated as a contempt of the Parliament (r.3 and r.6.1. - 6.16).

Preparation of written material

2.12 In the normal course, departments should provide a written statement on which subsequent oral evidence will be based (see r.1.4). In addition, where a committee asks written questions, written replies should be provided. All written material (authorised in accordance with these guidelines) should be sent to the committee secretary.

2.13 When the interests of several departments are involved, adequate consultation is to take place in preparing material and making arrangements for witnesses to attend.

Clearance with Minister

2.14 Submissions should be cleared to appropriate levels within the department, and normally with the Minister, in accordance with arrangements approved by the Minister(s) concerned.

Matters of policy

2.15 Such submissions:

a) should not advocate, defend or canvass the merits of government policies (including policies of previous Commonwealth governments, or State or foreign governments);
b) may describe those policies and the administrative arrangements and procedures involved in implementing them;
c) should not identify considerations leading to government decisions or possible decisions, in areas of any sensitivity, unless those considerations have already been made public or the Minister authorises the department to identify them; and
d) may, after consultation with the Minister, and especially when the Government is encouraging public discussion of issues, set out policy options and list the main advantages and disadvantages, but should not reflect on the merits of any judgement the Government may have made on those options or otherwise promote a particular policy viewpoint.

2.6 In relation to the matters in para 2.15(a) above, the proper course is for Ministers to make written submissions, to appear personally, to arrange for Ministers representing them to appear personally, or to invite committees to submit questions on policy issues in writing.

2.17 In relations to para 2.15(c), the normal course is for Ministers to canvass the material in these categories, but if departments are to canvass such material, they should clearly bring it to the Minister's attention when seeking clearance for the submission.

Requests for more time to prepare evidence

2.18 The Minister (or the department on his or her behalf) may ask the committee for more time to prepare evidence, if the notice is considered insufficient. The Senate resolutions provide for a witness to be given reasonable notice and an indication of the matters expected to be dealt with (r.1.3).

Conduct during hearings

General principles

2.19 As described above (para 1.1), it is intended, subject to the application of certain necessary principles, that there be the freest possible flow of information between the public service, the Parliament and the public. To this end, officials should be open with committees and if unable or unwilling to answer questions or provide information should say so, and give reasons. It is also, of course, incumbent on officials to maintain the highest standards of courtesy in their dealings with parliamentary committees.

2.20 These guidelines, and particularly paras 2.15 and 2.32-2.36, should be read in the context of the Freedom of Information Act 1982 (the FOI Act). The Act establishes minimum standards of disclosure of documents held by the Commonwealth. It is not, however, a code governing release of documents or information generally as there are many other means of obtaining information from Government (e.g. press releases, annual reports, etc.). Any material which would not be exempt under this legislation should (with the knowledge of the Minister in sensitive cases or where the Minister has a particular interest or has been involved) be produced or given, on request, to a parliamentary committee. Moreover, it may be in the public interest to provide to the committee a document or information for which exemption would normally be claimed under the Act. The exemptions in the Act should therefore be viewed from the perspective of the proper role and functions of the Parliament.

2.21 So far as relevant, the guidelines in paras 2.12 - 2.18 above relating to written material apply also to oral evidence.

Limitations upon officials' evidence

2.22 There are three main areas in which officials need to be alert to the possibility that they may not be able to provide committees with all the information they seek, or may need to request restrictions on the provision of such information. These are:

(a) matters of policy;

(b) public interest immunity; and

(c) confidential material where in camera evidence is desirable.

The conduct of official witnesses in relation to these areas is described in detail below (paras 2.25 - 2.38).

Clarification or amplification of evidence

2.23 In addition, committees may occasionally seek information which may properly be given, but where officials are unsure of the facts, or do not have the information to hand. In such cases witnesses should qualify their answers as necessary so as to avoid misleading the committee, and, if appropriate, should give undertakings to provide further clarifying information. It is particularly important to submit such further material without delay.

Questions about other departments' responsibilities

2.24 It is also important that witnesses should take care not to intrude into responsibilities of other departments and agencies (see also para 2.13). Where a question falls within the administration of another department or agency, an official witness may request that it be directed to that department or agency or be deferred until that department or agency is consulted.

Matters of policy

2.25 The role of an official witness is not to comment on policy but to speak to any statement provided to the committee and to provide factual and background material to assist understanding of the issues involved. The detailed rules applying to written submissions (para 2.15) also apply to oral evidence. Note, however, that such restrictions do not necessarily apply to statutory officers (see para 2.49).

2.26 The Senate resolutions provide that 'An officer of a department of the Commonwealth or of a State shall not be asked to give opinions on matters of policy, and shall be given reasonable opportunity to refer questions asked of the officer to superior officers or to a Minister' (r.1.16). The resolutions also prescribe the procedure by which a witness may object to answering 'any question put to the witness' on 'any ground' (r.1.10). This would include the ground that the question requires the witness to give an opinion on a matter of policy contrary to r.l .16. In such a situation an officer may ask the person chairing the committee to consider whether questions which fall within the parameters of policy positions (outlined in para 2.15) are in order. Moreover, the resolutions provide scope for a witness to make a statement about matters of concern to the witness in pre-hearing discussions before appearing at the committee hearing (r.1.5).

2.27 If an official witness is directed to answer a 'policy' question, and has not (in line with para 2.17) previously cleared the matter with the Minister, the officer should ask to be allowed to defer the answer until such clearance is obtained. Alternatively, it may be appropriate for the witness to refer to the written material provided to the committee and offer, if the committee wishes, to seek elaboration from the Minister; or to request that the answer to a particular question be reserved for submission in writing.

Public interest immunity

- Claims to be made by Ministers

2.28 Claims that information should be withheld from disclosure on grounds of public interest (public interest immunity) should only be made by Ministers (normally the responsible Minister in consultation with the Attorney-General and the Prime Minister).

2.29 As far as practicable, decisions to claim public interest immunity should take place before hearings, so that the necessary documentation can be produced at the time. The normal means of claiming public interest immunity is by way of a letter from the Minister to the committee chairman. The Attorney-General's Department should be consulted on appropriateness of the claim in the particular circumstances and the method of making the claim.

2.30 As a matter of practice, before making a claim of public interest immunity, a Minister might explore with a committee the possibility of providing the information in a form or under conditions which would not give rise to a need for the claim (including on a confidential basis or in camera, see paras 2.35 - 2.36).

- Matters arising during hearing

2.31 If an official witness, when giving evidence to a committee, believes that circumstances have arisen to justify a claim of public interest immunity, the official should request a postponement of the evidence, or of the relevant part of the evidence, until the Minister can be consulted.

- Scope of public interest immunity

2.32 Documents - or oral evidence - which could form the basis of a claim of public interest immunity may include matters falling into the following categories that coincide with some exemption provisions of the FOI Act:

(a) material the disclosure of which could reasonably be expected to cause damage to:

(i) national security, defence, or international relations; or

(ii) relations with the States;

including disclosure of documents or information obtained in confidence from other governments;

(b) material disclosing any deliberation of the Cabinet, other than a decision that has been officially published, or purely factual material the disclosure of which would not reveal a decision or deliberation not officially published;

(c) material disclosing any deliberation of or advice to the Executive Council, other than a document by which an act of the Governor-General in Council was officially published;

(d) material disclosing matters in the nature of, or relating to, opinion, advice or recommendation obtained, prepared or recorded, or consultation or deliberation that has taken place in the course of, or for the purpose of, the deliberative processes involved in the functions of the Government where disclosure would be contrary to the public interest;

(e) material relating to law enforcement or protection of public safety which would, or could reasonably be expected to:

(i) prejudice the investigation of a possible breach of the law or the enforcement of the law in a particular instance;

(ii) disclose, or enable a person to ascertain the existence or identity of a confidential source or information, in relation to the enforcement or administration of the law;

(iii) endanger the life or physical safety of any person;

(iv) prejudice the fair trial of a person or the impartial adjudication of a particular case;

(v) disclose lawful methods or procedures for preventing, detecting, investigating, or dealing with matters arising out of, breaches or evasions of the law the disclosure of which would, or would be reasonably likely to, prejudice the effectiveness of those methods or procedures; or

(vi) prejudice the maintenance or enforcement of lawful methods for the protection of public safety; and

(f) material subject to legal professional privilege.

It must be emphasised that the provisions of the FOI Act have no actual application as such to parliamentary inquiries, but are merely a general guide to the grounds on which a parliamentary inquiry may be asked not to press for particular information, and that the public interest in providing information to a parliamentary inquiry may override any particular ground for not disclosing information. For a more detailed understanding of the above exemption provisions, reference should be made to the FOI Act and to separate guidelines on its operation issued by the Attorney-General's Department.

2.33 In addition, the following considerations may affect a decision whether to make documents or information available:

(a) secrecy provisions of Acts: Attorney-General's Department should be consulted when occasions involving such provisions arise; and

(b) court orders or subjudice issues: where the provision of information would appear to be restricted by a court order, or where the question of possible prejudice to court proceedings could arise, the Attorney-General's Department should be consulted although decisions on the application of the subjudice rule are for the committee to determine, not witnesses.

- Classified documents

2.34 Documents, and oral information relating to documents, having a national security classification of 'confidential', 'secret' or 'top secret' would normally be within one of the categories in para 2.32, particularly para 2.32(a). Before producing a document bearing such a classification, an official witness should seek declassification of the document. (Note that it does not follow that documents without a formal security classification may not be the subject of a claim of immunity. Nor does it follow that classified documents may not in any circumstances be produced. Each document should be considered on its merits and where classified, in consultation with the originator.)

In camera evidence

2.35 There may be occasions when a Minister (or, on his or her behalf, the departmental Secretary) would wish, on balancing the public interests involved, to raise with the committee the possibility of an official producing documents or giving oral evidence in camera, and on the basis that the information be not disclosed or published except with the Minister's consent (see r.1.7, r.1.8 and r.2.7). It should be noted that Estimates Committees have no power to take evidence in camera or to treat documents submitted to them as in camera evidence.

- Matters arising during hearing

2.36 If, when giving evidence to a committee, an official witness believes that circumstances have arisen to justify requesting that evidence be heard in camera, the official should make such a request if the possibility has been foreshadowed with the Minister or should ask for the postponement of the evidence or the relevant part of the evidence until the Minister can be consulted. (The Senate resolutions provide that 'A witness shall be offered, before giving evidence, the opportunity to make application, before or during the hearing of the witness's evidence, for any or all of the witness's evidence to be heard in private session, and shall be invited to give reasons for any such application. If the application is not granted, the witness shall be notified of reasons for the decision.' (See r.1.7 and also r.1.8 relating to the publication of evidence given in camera.))

2.37 These circumstances might include cases where:

(a) although a claim of public interest immunity could be justified, the Minister considers that the balance of public interest lies in making information available to the committee;

(b) while a claim of immunity may not be appropriate, other social considerations justify the committee being asked to take evidence privately. Examples, which parallel other exemption provisions in Part IV of the FOI Act, are evidence the public disclosure of which would:

(i) affect law enforcement or protection of public safety;

(ii) have a substantial adverse effect on financial or property interests of the Commonwealth;

(iii) prejudice the attainment of the objects or effectiveness of procedures or methods for the conduct of tests, examinations or audits or a Commonwealth agency;

(iv) have a substantial adverse effect on the management or assessment of personnel, or on the proper and efficient conduct of the operations of a Commonwealth agency including the conduct by the Commonwealth of industrial relations;

(v) unreasonably disclose information relating to the personal affairs of any person. Note also that the senate resolutions provide that a committee may consider taking in camera evidence reflecting adversely on a person (see r. 1.11 - r.1. 13, r.2.1 - r.2.3). The Privacy Act 1988, in particular Part III which explains Information Privacy Principles, is also relevant;

(vi) reveal business affairs, including trade secrets or other commercially sensitive information;

(vii) reasonably be expected to have a substantial adverse effect on the management of the economy or on the conduct of business generally; or

(viii) disclose material obtained in confidence;

(c) similar or identical evidence has been previously given in camera to other hearings of the committee or other committees of the Parliament and has not been made public.

Committee request for evidence off the record

2.38 An official who is asked by a committee to give evidence 'off the record', unless this refers to evidence given in camera or evidence of which there is to be no transcript taken, should appreciate that technically there is no such category as 'off the record' evidence which has any special protection or status. In the event an official is asked to give evidence 'off the record', however, he/she should request a postponement until the Minister can be consulted, unless the possibility has been clearly foreshadowed with the Minister.

Protection of submissions and witnesses

Parliamentary privilege

2.39 The act of submitting a document to a parliamentary committee is protected by parliamentary privilege: Parliamentary Privileges Act 1987, paragraph 16(2)(b). Any publication of the submission other than to the committee, however, is protected by parliamentary privilege only if that publication takes place by or pursuant to the older of the committee, in which case the content of the document is also protected: paragraph 16(2)(d) of the Act. The protection of parliamentary privilege means that a person cannot be sued or prosecuted in respect of the act or the material protected, nor can that act or material be used against a person in legal proceedings. The unauthorised disclosure of a document or evidence submitted to a parliamentary committee, that is, a disclosure not authorised by the committee or the House concerned, may be treated as a criminal offence under section 13 of the Act or as a contempt (r.6.16.).

Contempt of the Parliament

2.40 It is an offence against s.12(1) of the Parliamentary Privileges Act for a person, by fraud, intimidation, force or threat, by the offer or promise of any inducement or benefit, or by other improper means, to influence another person in respect of any evidence given or to be given before a House of the Parliament or a committee, or to induce another person to refrain from giving any such evidence. It is aiso an offence, under s.12(2) of that Act, for a person to inflict any penalty or injury upon, or deprive another person of any benefit, any person on account of the giving or proposed giving of any evidence, or of any evidence given or to be given, before a House or a committee. It should be noted that the existence of s.12 of the Parliamentary Privileges Act does not prevent imposition by a House of a penalty (see s.12(3)). In particular, those kinds of conduct are also punishable as a contempt by the Senate (r.6.10 and r.6.11 respectively) or the House of Representatives.

Self incrimination

2.41 In general a witness cannot refuse to answer a question or produce documents on the ground that the answer to the question or the production of documents might incriminate the witness. The exceptions to this are witnesses appearing before the Public Accounts Committee or the Public Works Committee (see s.19 of the Public Accounts Committee Act, s.25 of the Public Works Committee Act and para 2.6). In such cases parliamentary privilege protects a witness against only that evidence itself being used against the witness outside the Parliament; (for example, as evidence in proceedings before the courts). A witness may request the committee to take the evidence in camera in those circumstances (see r.1.7 and r.1.8). The Senate resolutions also outline a procedure for considering claims by a witness that he or she not answer a question on grounds of self-incrimination (r.1.10 and r.2.5).

Access to counsel

2.42 A witness may apply to have assistance from counsel in the course of a hearing. In considering such an application, a committee shall have regard to the need for the witness to be accompanied by counsel to ensure the proper protection of the witness. If an application is not granted, the witness shall be notified of reasons for that decision (see r.1.14). If an application is granted, the witness shall be given reasonable opportunity to consult general counsel during a committee hearing (see r.l .15)

2.43 In normal circumstances officials should not need counsel when appearing before parliamentary committees. Should the need arise, however, the AttorneyGeneral's Department should be consulted.

Correction of evidence.

2.44 After perusing the record of their evidence, official witnesses should propose for the committee's consideration any necessary corrections for incorporation or noting in the published record. Where these affect the substance of evidence previously given, it may be necessary to seek the agreement of the committee on the way in which the correction should be made, e.g. by tendering a subsequent statement. The Senate resolutions provide that 'Reasonable opportunity shall be afforded to witnesses to make corrections of errors of transcription in the transcript of their evidence and to put before a committee additional material supplementary to their evidence' (r.1.17).

2.45 Also, if a witness believes, after perusing the record, that he or she has omitted some relevant evidence, the witness should, having consulted with the Minister (or departmental Secretary), seek leave of the committee to lodge a supplementary statement or to give further oral evidence. All supplementary written material (authorised in accordance with these guidelines) should be forwarded to the committee Secretary.

Publication of evidence

2.46 Evidence provided to committees in a public hearing is normally published in the form of a Hansard record.

2.47 Authority for the publication of evidence, whether taken in public or in camera, is vested in Parliamentary committees by virtue of s.2(2) of the Parliamentary Papers Act 1908. Evidence taken in camera is confidential and its publication without a committee's consent constitutes a contempt (see s.13 of the Parliamentary Privileges Act 1987 and r.6.16). Note, too, that s.46 of the FOI Act provides for documents to be exempt if disclosure would infringe parliamentary privilege.

Proposals to publish in-camera evidence

2.48 If a committee seeks an official witness's concurrence to publish the witness's in camera evidence, he or she should ask the committee to delay the decision to enable the witness to consult the Minister or the departmental Secretary. A committee will not normally authorise the publication of in camera evidence without the concurrence of the witness, although such concurrence is not a binding requirement (see r.1.8).

Official witnesses from statutory authorities

2.49 Members of authorities which have statutory public information and education roles clearly are able to express views on the policy responsibilities of their authorities. However, care should be taken to avoid taking partisan positions on matters of political controversy. In other respects these guidelines should be followed as far as is relevant including in relation to claims of public interest immunity (see para 2.28).

Appearance in a 'personal' capacity

2.50 There is no intention for there to be any restriction on officers appearing before parliamentary committees in their 'personal' capacity. An officer so called, however, should pay heed to the guidelines relating to public comment contained in the Guidelines on Official Conduct of Commonwealth Public Servants (July 1987). As the guidelines emphasise, it is particularly important for senior officials to give careful consideration to the impact, by virtue of their positions, of any comment they might make. Indeed heads of agencies and other very senior officers need to consider carefully whether, in particular cases, it is possible for them realistically to claim to appear in a 'personal' rather than an 'official' capacity, particularly if they are likely to be asked to comment on matters which fall within or impinge on their area of responsibility. An officer who is appearing before a committee in a personal capacity should make it clear to the committee that the officer's appearance is not in an official capacity.

Party committees

3.1 It is quite appropriate for officials, subject to ministerial authorisation, to make themselves available to brief party committees to assist them in understanding the technical and factual background to government policies and proposals, including details and/or explanations of proposed legislation. Departmental officials will not be expected, or authorised, to express opinions on matters of a policy or party political nature (see paras 2.15 and 2.25). The guidelines for submissions to and appearances before parliamentary committees apply to briefing of party committees, subject to paras 3.2-3.7 below.

3.2 Committee requests for such briefing should be directed to the Minister concerned. It will also be open to Ministers to initiate proposals for briefing of committees, where they consider this to be desirable.

3. 3 Where considered appropriate or desirable, Ministers may elect to be present at discussions with Government party committees, to deal with questions of a policy or party political nature.

3.4 Where the Minister does not attend the committee proceedings, officials should keep the Minister informed of the nature of the discussions and of any matters the officials could not resolve to the committee's satisfaction.

3.5 Party committees do not have the powers or privileges of parliamentary committees. Consequently officials appearing before them do not have the protection afforded to witnesses appearing before parliamentary committees (see paras 2.39 and 2.41). Party committee hearings, however, are not generally held in public.

Individual members of Parliament

4.1 Members of Parliament usually request information through the responsible Minister, but direct approaches to officials for routine factual information, particularly on constituency matters, are also traditional and appropriate. When a request amounts to no more than a request for readily available factual information, the information should obviously be provided, although depending on the nature or significance of a request, an official may judge it appropriate to inform the departmental Secretary of the request and response. Ministers should be informed of any matter which is likely to involve them.

4.2 There may be other occasions where a Member of Parliament's request raises sensitive issues. For example, where expressions of opinion are sought on government policies or alternative policies, as distinct from explanation of existing policies. Officials will not be expected or authorised to express opinions on government policies, policy options or matters of a party political nature. Information provided may, however, include details of administrative arrangements and procedures involved in the implementation of approved policies or legislation.

4.3 If a Member of Parliament seeks expressions of opinion on government policies or policy options, it would be appropriate to suggest that the Member pursue the matter with the Minister. Similar action would be appropriate if a request raised other issues of a sensitive nature, or where the answering of a request would necessitate the use of substantial resources of the department or authority.

4.4 Care should be taken to avoid unauthorised disclosure of classified or otherwise confidential information - for example, where a breach of personal or commercial privacy could be involved.

4.5 Where an official considers that the terms of a request would require going beyond the authorised scope of the above arrangements, the official should so indicate to the Member, and would be at liberty to raise the matter with the departmental Secretary and the Minister and, if desired, with the Public Service Commission.

Special arrangements for pre-election consultation with officials by the Opposition

4.6 On 5 June 1987, the Government tabled in the Parliament specific guidelines relating to consultation by the Opposition with officials during the pre-election period. These guidelines, which are almost identical with guidelines first tabled on 9 December 1976, are as follows:

(i) The pre-election period is to date from three months prior to the expiry of the House of representatives or the date of announcement of the House of Representatives election, whichever date comes first. It does not apply in respect of Senate elections only.

(ii) Under the special arrangements, shadow Ministers may be given approval to have discussions with appropriate officials of government departments. Party leaders may have other Members of Parliament or their staff members present. A departmental Secretary may have other officials present.

(iii) The procedure will be initiated by the relevant Opposition spokesperson making a request of the Minister concerned who is to notify the Prime Minister of the request and whether it has been agreed.

(iv) The discussions will be at the initiative of tote Aft-government parties, not. Officials will inform their Ministers when the discussions are taking place.

(v) Officials will not be authorised to discuss government policies or to give opinions on matters of a party political nature. The subject matter of the discussions would relate to the machinery of government and administration. The discussions may include the administrative and technical practicalities and procedures involved in implementation of policies proposed by the non-government parties. If the Opposition representatives raised matters which, in the judgement of the officials, sought information on government policies or sought expressions of opinion on alternative policies, the officials would suggest that the matter be raised with the Minister.

(vi) The detailed substance of the discussions will be confidential but Ministers will be entitled to seek from officials general information on whether the discussions kept within the agreed purposes.

Appearances before the bar of a House of Parliament

5.1 It would be only in exceptional circumstances that an official would be summoned to the bar of a House of the Parliament and each case would need individual consideration.

5.2 As a general rule, it would be appropriate for these guidelines to be followed insofar as they apply to the particular circumstances.

Non-parliamentary public inquiries (including royal commissions and speeches)

6.1 The guidelines for submissions to, and appearances before, parliamentary committees generally apply to submissions to and appearances before other public inquiries, and to the preparation and presentation of speeches by officials in their official capacity.

Speeches

6.2 Subject to these guidelines, officers, other than those employed in areas where national security or other reasons demand confidentiality, should be prepared to make themselves available to attend and address conferences in their areas of professional expertise. Speeches in such circumstances should aim to provide the necessary factual information and analytical material to promote informed public discussion. Such activities should be regarded as part of the normal interchange of information between government and community groups.

6.3 The Minister may decide to authorise the departmental Secretary to clear material for speeches. Subject to ministerial guidance, the Secretary is responsible for instituting appropriate departmental rules. Officials will often also find it necessary to speak in their official capacity without having the opportunity to clear the substance of their comments (for example, in open discussions at public seminars). In such cases officials should heed the rules laid down by the departmental Secretary and the Guidelines on Official Conduct of Commonwealth Public Servants concerning public comment by public servants. In particular, they should avoid taking partisan positions on policy issues or matters of public controversy.

Foreign service

6.4 Heads of Australian diplomatic or consular posts and senior officials serving abroad have the responsibility in countries to which they are accredited to explain, advocate or defend the Government's international and domestic policies through public speeches, conferences, media enquires, appearances before host government parliamentary committees, etc. It may not always be possible for officers to obtain ministerial or departmental clearance. It is expected, however, that public comment will be consistent with authorised policies in all respects.

Royal commissions and bodies with royal commission powers

6.5 Officials appearing before Royal Commissions established by the Commonwealth should take note of the provisions of the Royal Commissions Act 1902. The categories of evidence enumerated in para 2.32 above are also appropriate to claims of public interest immunity before a Commonwealth Royal Commission. The circumstances in which the Commission might be asked to hear evidence in camera are also likely to be the same as those listed at para 2.37 above.

6.6 An official appearing before a Commonwealth Royal Commission or similar body may not refuse to answer a question (or to produce a document or other item) on the ground that the giving of the answer or the production of the document or item might tend to be self-incriminatory. This rule does not apply where an official has been charged with an offence and the charge has not been finally dealt with by a court or otherwise disposed of.

6.7 Where guidance is required regarding counsel for officials - including about legal aid - advice should be sought from the Attorney-General's Department.

State inquiries (parliamentary and other)

6.8 Where additional guidance is required regarding appearances before State inquiries, advice should be sought from the Attorney-General's Department. Such advice should also be sought where a claim of public interest immunity may be under consideration.

Courts and tribunals

6.9 Where officials require further guidance or counsel in respect of their appearance before and giving evidence to courts of law and tribunals - particularly concerning possible claims of public interest immunity - advice should be sought from the Attorney-General's Department.

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