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Supporting Ministers, Upholding the Values: A Good Practice Guide

Launch - 9 March 2006

Supporting Ministers, Upholding the Values—A Good Practice Guide

First of all, I’d like to welcome everyone who has come to take part in this launch today. I am very pleased that you could be here as the guide we are launching draws on the wisdom of many who are in this room, including all Management Advisory Committee agency heads, and I want to take this opportunity to thank them for their intellectual rigour and their moral support.

The guide also draws on the experience and advice passed on to us by many who are no longer in the public service, but whose professional conduct and decisions have profoundly shaped the conventions that guide the interactions of the political and the administrative arms of government. These conventions have, as you all well know, a long and honourable history that goes back to the Westminster system and will be carried forward into our review of the Public Service Act. One of the purposes of today’s launch is to celebrate that continuity.

It is important, when we talk about changes in the public service, to be conscious that a number of the APS Values that are in section 10 of the Public Service Act reflect a clear view on the part of the Parliament that the Westminster tradition of apolitical professionalism should have an explicit and legislated place in the Australian public service. This means that many of the important practical public service conventions that have come over the years to express apolitical professionalism still apply: the caretaker convention, for example, or Cabinet confidentiality.

Of course longstanding conventions of the Westminster tradition have been adapted since Federation to the requirements of an Australian and Federal environment. The experience and the commentary from politicians, public servants and academics of varying persuasions have emphasised and refined the characteristics of the tradition. As well, our professional framework has been adapted in response to demands from government and from the public for a stronger output orientation and an increased emphasis on efficiency and effectiveness.

Also important from an operational perspective is the adaptation of protocols derived from Westminster conventions to reflect such practical changes as our increasing reliance on phones, email and the internet. Such adaptation is the sign of a living organism, an indicator that the Australian public service (APS) is alive and well.

This highlights the fact that we are comfortable with our history but also comfortable with change. We can evolve and keep our conventions contemporaneous. We are capable of applying the conventions and protocols of the past to the demands and circumstances of the future.

One of the great things about working in today’s public service is the high level of stakeholder engagement in our activities. We all recognise the importance of a very constructive relationship between public servants and Ministers and their offices, based on a good understanding of their different respective roles and responsibilities. The integrity of those roles and responsibilities is important and affects fundamentally the quality of outcomes the Government can achieve. And, for the most part, these relationships work well.

But, in maintaining these relationships, it goes without saying that there will naturally be issues around expectations. In my view, this is an inherent part of being a public servant, and the fact that differences occur is not surprising; rather, it is to be expected, and should not be seen as odorous or as a sign of politicisation. It’s a natural tension in the relationship.

I do want to make it clear, however, that public servants are neither political advisers nor consultants. As well as our roles and responsibilities, we have professional standards and a legislative basis for our employment that distinguishes us from both groups. If we do not understand and keep to those standards and to the law, then we have nothing to offer the Government that is not available elsewhere, and the public service has no future.

Today’s launch is partly about helping to broaden the understanding among public servants of these roles, responsibilities, conventions and protocols and the principles that underpin them.

I hold it as a simple fact that we can no longer assume that the guidance that has been developed over time to apply to interactions between the political and the administrative arms of government will be assimilated and understood by APS staff before they are required to understand and apply that guidance.

There are many more ministerial advisers now making more demands. This development is not unique to Australia—though here it may also reflect among other things the increased office space available following the move to new Parliament House—but it is important to the way we do business. According to the 2003-04 State of the Service Report, at 1 May 2004, the total number of government personal staff was 392, an increase of 89 per cent compared to 207 in April 1983.¹

Not surprisingly, there are also more people on the receiving end of demands from ministerial offices. In 2004-05, 73% of Senior Executive Service (SES) employees, 35% of Executive Level (EL) employees and 15% of APS 1–6 employees reported having had direct contact with Ministers and/or their advisers in the preceding year. Most of this contact was related to the supply of advice and factual information, which was provided by public servants at all levels.²

Due to the changing nature of public service work, it is no longer possible to rely on mentoring promising junior staff so that when they arrive at positions of leadership they know how responsiveness and apolitical professionalism are meant to work in practice. Junior staff are being contacted by ministerial advisers before they arrive at leadership positions.

Communication is also faster and much more intimate: individuals can be emailed and telephoned directly, without managers or colleagues being aware of what is being asked or being able to provide advice and support unless they are approached by the public servant concerned. Many of the public servants contacted don’t know what they should do. Our research indicates that some of them don’t even know that there is something that they should know.

Here I will reflect on the aphorism “…experience is a great teacher; unfortunately, it sets the test before it teaches the lesson.”

For example, we know that agency protocols require that oral briefing to Ministers or Ministers’ staff on key issues is confirmed in writing (including emails or follow-up minutes). Nine large agencies reported in the 2004-05 State of the Service agency survey that they had this protocol in place, and yet between 37% and 66% of employees working in those nine large agencies who had had contact with their Ministers’ offices were not sure whether their agency had such a protocol.³ These people do not know whether they should be keeping records of their oral advice any more than new ministerial advisers may know whether they can ask that records not be kept. It is in situations like this that public servants can make the kind of poor decisions that come back to haunt us as “politicisation”.

As Public Service Commissioner, I have taken the view that, even in a devolved environment, there is value in giving APS employees broad guidance about the principles and the practices that apply in these situations.

The guidance that I am launching today incorporates and expands on the principles applying to interactions with ministerial offices articulated in the Commission’s recently revised APS Values and Code of Conduct in practice. In order to have all of the relevant material together in one place, this guidance incorporates the principles from that publication that relate to interactions with Ministers and their advisers, and provides much greater detail on relevant public service conventions and good practice advice to assist public servants to put their professional ethics into practice.

Of course many of the issues that will arise for public servants dealing with Ministers and their advisers will be specific to particular agencies and to particular ministerial portfolios, and it is my belief that guidance should be made available at that level as well.

Many agencies have already developed practical guidance in this area—some have provided very good advice tailored to the practicalities of their own and their Ministers’ operational requirements. Examples of such good practice agency protocols are set out in the appendix of the guide we are launching today. These extracts are there to assist those agencies that are looking to draft or to upgrade the protocols that they now make available. Since MAC members have been very supportive of our recommendations around local agency protocols, I assume that such guidance will be forthcoming where it does not already exist.

Of course, none of the material that agencies will develop will be set in concrete: Ministers change and so do portfolio responsibilities. But it is important that it be there—and it is important that its existence be widely understood by public servants at all levels who are on the receiving end of the telephone or email.

I am also hoping that both our guidance and the guidance prepared by agencies will also be useful reading for ministerial staff who should want to understand the professional framework in which public servants are required by law to operate. Ideally, each head of a Ministerial office should be well schooled in these arrangements and ensure that their knowledge is passed on to their staff, so that confusion and tension in relationships are minimised. In practice, I find it is generally the case that Ministers are much better informed about the differences in roles and responsibilities than their staff, and often more able to see sensible ways through when conflicts arise.

For our part, in response to suggestions from MAC agency heads, we have fashioned from the overall publication a series of small good practice guides that are relevant to three public service groups: agency heads, agency ministerial liaison areas, and individual public servants. In effect, we have extracted the background material from our larger publication to make the advice quickly accessible by public servants in a hurry, or by ministerial liaison areas wanting a checklist of good practice support for agency staff. We are providing this guidance because our State of the Service surveys say that public servants need it.

This should not be read as implying that our guidance is in any way a substitute for good leadership at the SES level. In their recent statement One APS—One SES, MAC agency heads have strongly endorsed: the importance of understanding the ethical framework that governs public administration and the importance of bequeathing that understanding to the next generation of public servants. Their actual words are these:

Membership of the SES in an APS governed by its Values brings with it a responsibility to understand and nurture the Westminster principles and conventions of public administration as these operate in the Australian model of government. If the SES does not embody these principles and ensure that they are embedded in tomorrow’s generation of public servants, Australia will be poorer for it.

As MAC has said, the role of the SES in this area is critical.

It is critical that in the Australian Public Service the Senior Executive Service builds and maintains good relationships with Ministers and their offices.

It is also critical that the SES help their staff to understand and manage these relationships. We know from our State of the Service surveys that employees’ confidence in dealing with Ministers and their advisers is related to several factors. One set of factors is related to what employees know: their understanding of the APS Values and of agreed written and unwritten processes in place in their agency for resolving employee concerns that may arise about the nature of requests from ministerial offices. The second set of factors associated with the confidence of public servants in engaging with Ministers and their advisers relates to agency leadership. We know that:

employees who disagreed that their immediate manager acted in accordance with the APS Values had the lowest levels of confidence in their interactions with Ministers’ offices;
employees who agreed that the most senior managers in the agency acted in accordance with the Values were much more likely to have high levels of confidence and much less likely to have low confidence; and
employees who agreed that senior managers in the agency lead by example in ethical behaviour were much more likely to have high levels of confidence and much less likely to have low confidence.

All of these factors can have a considerable impact on how interactions work in particular agencies with particular leadership teams: our survey tells us that, for 15 large agencies, the proportion of relevant employees with high or very high levels of confidence in their ability to act in accordance with their professional standards varied from 45% to 82%; those with low or very low confidence ranged from 0% to 23%.

Clearly SES officers need to ensure that they themselves operate within the professional ethical framework established for the Australian public service by the APS Values. SES officers also need to ensure that the public servants working to them understand that those standards apply across the organisation, without exception. And finally they have a responsibility to mentor employees around the practicalities of applying the Values in particular situations.

MAC has indicated that it has “high expectations of the mentoring role that the SES will have to take on, as part of their regular duties, sharing their experience in turn with staff so that they understand better the complex environment in which they work.” ⁴ Among the good practices identified in Supporting Ministers, Upholding the Values are a number that bear on the responsibility—not the desirability but the legal responsibility under section 35 of the Act—of the SES to provide this kind of support to public servants working to them and working with them.

The interaction of the political and the administrative arms of government can involve us, the public servants who administer the Government’s law and programmes and services, in repeated decision-making on a daily basis. This applies to everything from determining refugee status or Centrelink entitlements to recommending what organisations should be given grants or what consultants employed, to deciding what information should be included in “frank, honest, comprehensive and accurate” ministerial briefings.

There have been occasions when I have had to tell Ministers that I couldn’t do something they wanted because it would be illegal. One day, I smiled when a Minister asked officials… “[h]ow about we do [X…]” and one official replied “[t]hat would amount to a declaration of war, and I don’t recommend it, Minister.” In the scheme of things, these are the easy cases, where Ministers are exploring possibilities, and the answer and its reception are quite straightforward.

In reality, there are many more challenging issues that public servants, often at junior levels, face each day, under both political flavours of government.

What do you do when a ministerial staffer is screaming at you down the phone to recommend a particular project, or when they are adamant that you should recommend funding a project because the Minister “really wants” to fund it. How do you manage yourself in situations where a staffer insists that the name of someone in particular should be on the list of possibilities for appointment to a board or should be the preferred tenderer in a procurement process? What do you do when they tell you what your advice to the Minister should be and what your advice shouldn’t include? And what about being asked to include political material in a departmental submission to a Parliamentary inquiry? The good practice guide can help you with those decisions, and lets you know where to go for advice on how to play the situation.

But, let’s take it even further to some of the trickier exchanges between public servants. What do you do when another public servant is so gung ho about what they perceive to be the Government’s interests and policies that they suggest that you might do something that is quite inappropriate? How do you handle a situation where a colleague goes beyond their apolitical role and doesn’t provide Ministers with the advice that they should? What do you do when others are behaving in a way that is inappropriate because they perceive that to be Government policy, even though it isn’t?

These are not mechanical decisions. They should not be driven by a black letter reading of the law and a set of silent assumptions about how the political arm of government might want your decision making power applied. The Palmer report talks about “clear evidence of an ‘assumption culture’—sometimes bordering on denial—that generally allows matters to go unquestioned when, on examination, a number of the assumptions are flawed.”⁵

Our professionalism requires us to think about what we are doing and to reflect on the assumptions, spoken and unspoken, that might inform our decision-making.

Senior public servants who talk about the Government as ‘we’ are doing neither the Government nor their agency a favour. What they are doing is creating an environment in which mistakes will be made—and those mistakes will appear, appropriately, to be politically motivated, even though they may not be politically directed—and both the public service and the Government will be tarnished as a result.

That is one reason why I am urging the SES to be explicit about the grounds for their behaviour when interacting with Ministers and their advisers—and why I urge public servants to ask about decision-making that is unclear to them. Partly this is a means of developing skills and knowledge in the public service of the future. But it is also a critical means of ensuring that we all remain alert to the underpinnings of our own professional behaviour.

I ought to, at this point, draw your attention to our recently released Being Professional in the APS—Values Resources for Facilitators. It is a comprehensive package of resource materials to help agencies to build their own training programmes around the application of the APS Values and the Code of Conduct to ongoing decision-making. These materials can be used in association with agency protocols as part of induction and professional renewal programmes. The point is to encourage reflection and understanding among all decision-makers at all levels about their professional standards and their duty as public servants.

I have spoken on other occasions of the duty of a public servant. In my view we owe it to our profession and to the public, as well as to the Government, to behave in a way that maintains the respect of the public in our official dealings. This means respecting the law, the ethical framework established for our profession by the APS Values, and the public’s legitimate interest in the proper conduct of the activities of the administrative arm of the government. It means examining what is inhabiting the silences and the assumptions that surround our decision-making and ensuring that these can bear proper scrutiny.

Having talked about the emergence of an ‘assumption culture’, the Palmer report also talks about the remedy:

strong government policy [it says] places on the agency tasked with its implementation a duty to provide assertive leadership and to have in operation systems that ensure integrity of application and accountability and engender public confidence.⁶

I believe that the publication I am launching today will support us in meeting that obligation during our interactions with Ministers and their advisers.

The guide focuses initially on the relationships that should exist between public servants and Ministers and their advisers at all levels in the bureaucracy. There is also particular advice on issues that can arise in special cases—when working with new Ministers their advisers, with non-Cabinet Ministers or with Parliamentary Secretaries.

For all these relationships, there are roles that are appropriate to APS employees generally, and particular responsibilities that are appropriate to:

agency heads and the agency’s executive,
heads of statutory authorities,
the SES,
departmental liaison officers and
agency ministerial liaison areas.

In the case of a number of these relationships, the guide presents advice about proper and improper conduct from those who have held such roles in the past. Important conventions that should apply are outlined, as are practical strategies that can be used to support relationships over time—strategies around agreeing expectations, convening regular meetings, and providing regular staff feedback. Some of these strategies are set down formally for the first time; some are already available in good practice documents put out by the ANAO and PM&C. Previously published documents are cited, with electronic links provided.

The guide then turns to particular circumstances that are likely to call for specific written protocols, and describes what such protocols could—and in some cases should—cover. Some of these protocols are little more than simple and sensible support for public servants grappling with the deadlines of a parliamentary sitting day. Others are there to support public servants wanting to navigate their way through the shoals of particular ministerial personalities and literary preferences, particular portfolio functions and priorities, and particular legislative and regulatory responsibilities.

There are, however, some issues that present challenges to public servants from time to time that also call for specific guidance. These are typically sensitive situations or situations that arise infrequently. Public servants may not know what good practice is in these situations, and ministerial advisers may not know what they should expect from the relationship in these contexts. Consultations conducted as part of the evaluation underpinning this guide indicated that APS employees in a range of agencies are more likely to face such challenges:

prior to the caretaker period, as an election approaches, as well as during the caretaker period;
when discussing advice with Ministers’ offices on disbursement of grants or making appointments of statutory office holders;
when responding to requests from Ministers’ offices for revised briefing materials;
in response to requests for electorate-based briefings;
supporting Cabinet processes;
supporting Budget processes;
record-keeping (including handling freedom of information requests);
responding to parliamentary questions and questions on notice; and
ad hoc requests.

These are areas that call for what Palmer calls “systems that ensure integrity of application and accountability and engender public confidence.” The guide sets out broad advice in these areas, and agencies should supplement this advice with support through their own internal documentation and training.

Good practice in agency documentation and training are covered off in the final part of the guide.

In summary, I don’t want to pretend that any of this is easy.

The integrity of the Government and the integrity of the public service depend on each other. It is a stately dance. The Government leads, of course, but each partner needs to keep a proper distance and watch where they put their feet.

With that message, I would now like to launch officially Supporting Ministers, Upholding the Values—A Good Practice Guide, together with the supporting Checklists for APS employees, ministerial liaison areas and agency heads.

To our knowledge, this is the first such guide of its kind for a public service anywhere in the world. Already, I have a number of other countries lining up for copies and the interest in it from the press and public servants across the country has been enormous.

Finally, and in addition to MAC members, I would like to thank the five agencies that took part in focus groups during the evaluation that underpins this guidance. I am also grateful to those agency heads who have agreed to make extracts from their agency protocols available in the appendix to the guide. I am especially grateful to Dr Kathy MacDermott whose perseverance and commitment drove the document’s preparation. And, I would also like to thank the members of the Parliamentary network for their advice.⁷

I would, of course, also like to thank you all for coming. You are welcome to join us for afternoon tea. Copies of the guide are available outside, and my address will be on the Commission’s website later today.

1 2003–04 State of the Service Report, Chapter 3, available from www.apsc.gov.au/stateoftheservice/0304/chapter3a.htm .

2 2004–05 State of the Service Report, Chapter 3, available from www.apsc.gov.au/stateoftheservice/0405/c3.pdf :“Just under half (44%) of APS 1–6 employees who had been in direct contact with Ministers and/or their advisers in the preceding 12 months had done so in relation to the provision of advice (compared to 62% of relevant EL employees and 81% of relevant SES employees).”

3 Data on employee awareness of other protocols is set out at in section 3.2 of the 2004–05 State of the Service Report.

4 Management Advisory Committee 2005, Senior Executive Service of the Australian Public Service, Australian Government, Canberra.

5 M.J. Palmer, Inquiry into the Circumstances of the Immigration Detention of Cornelia Rau: Report, July 2005, p. 168, available at www.minister.immi.gov.au/media_releases/media05/palmer-report.pdf

6 Palmer report, 164.

7 For those who are not familiar with it, the Parliamentary Network is a whole of government initiative designed to provide support and share information about parliamentary services provided by departments. It works like a ‘community of practice’, enabling members to share information with each other—and in this case to share their experience of the realities and practicalities of ministerial liaison services with us.

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Supporting Ministers, Upholding the Values: A Good Practice Guide

Launch - 9 March 2006