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Public Sector Ethics in the 21st Century

Leader to Leader Event
Presentation by Lynelle Briggs
Australian Public Service Commissioner
25th February 2009

Before I begin I would like to acknowledge the Ngunnawal people and their ancestors as the traditional owners of the land on which we are meeting today.

Ethics is from the Greek term ‘ethos’, meaning ‘character’.  The basic question of ethics was posited by Socrates, when he asked “What ought one to do?” 

The Macquarie Dictionary defines ethics as “a system of moral principles, by which human actions and proposals may be judged good or bad or right or wrong.”  As individuals, we make choices about how we act and behave, using an ethical framework derived in part from our own experiences and perceptions and our understanding of what society expects from us.

But there are also the ethics that we take on when we join an organisation.  The Macquarie Dictionary defines these as “the rules of conduct recognised in respect of a particular class of human actions.”

Public servants are not unique in being subject to standards and rules that govern behaviour in particular groups or institutions. Private firms, sporting organisations, community organisations, even family and friendship groups all have ethical standards of one sort or another, and most of them look to leaders, formal or informal, to promote and model those standards.

But at times, standards and rules will not help us when confronted by a tough decision. Tough choices don’t always involve professional codes or laws nor do they always involve big headline issues. They often come down to our central values as public servants, setting one value against another, where neither value is ‘wrong’. This is what Rushworth Kidder calls ‘right versus right’ choices.

When faced with these choices, we must use our judgement and discretion, taking into consideration the available rules and guidelines, the requirements of our role, and our responsibilities as public servants. We face and resolve ethical dilemmas everyday in our work when exercising judgement and responsibility, responding to authority, and undertaking different roles. By understanding what values are at stake, we can break a problem down to become more manageable, look at the options available, and make the right decisions.

Why do we go on about ethics?

Why are we so concerned with ethics in the public service and why do we place a particular emphasis on ethical leadership?  The key issue is that while ethical failure in the private arena usually only affects a specific group of people, every Australian has a stake in the ethical health of the APS.

This is because we all have to pay taxes, we all have to obey laws and we are all affected in one way or another by Government decisions.  The quid pro quo is that we are entitled to, and expect, a particularly high standard in the way in which the resources taxpayers grant the Government are managed.

These expectations include that:

• these resources will be managed effectively and that their use will be accounted for
• they will not be used for partisan political purposes or for personal advantage
• the standards of behaviour of the people paid to manage these resources will be better than that of other sectors.

In Australia, these expected standards of probity and diligence are underpinned by the particular relationship between the Government and the public service under the ‘Westminster’ system of government.  At the risk of over-simplifying, the basis of the relationship is:

• the Government of the day makes the decisions about policies and programmes
• the public service provides the advice and information that helps the Government make those decisions
• once the decisions are made by Government, the public service implements them.

Let me emphasise that to understand the interests of the Government of the day requires uniquely high professional and ethical standards:

• to provide information and advice that is mindful of those interests but is at the same time comprehensive, impartial, evidence based and frank;
• to effectively implement Government decisions that may have ignored this advice; and
• to provide the same standards of service to another Government with perhaps totally different politics and aims.

So what are the characteristics of an ethical public service under the Westminster system?  I would suggest that they include:

• clear, explicit standards of behaviour and professionalism that employees understand and must comply with
• a high level of confidence among stakeholders—Government, Parliament, clients and the community—that these standards are being complied with
• internal and external systems of accountability which evaluate and report on ethical standards and that can detect and deal effectively with ethical lapses.

I should make it clear here that a defining element of stakeholder confidence in an ethical public service is that standards are not only being met but are perceived to be met. Dealing with conflicts of interest provides the classical example.  Public servants may be personally scrupulous in ensuring that their private interests and opinions do not affect their professional advice or decisions, but this won’t prevent perceptions of bias if they fail to declare these interests or to distance themselves from decisions that might involve them.

The APS has always had core values, but for many years they were hidden away in various rules and regulations.  It is only in the last decade or so that Australian public sectors have started to articulate and mandate explicit sets of standards and principles.

This is partly because we have moved from rules-based to principles-based management, but it’s also because our stakeholders are becoming more sophisticated and articulate in their expectations about what we do and how we do it and they want clear standards against which we can be measured.

In the APS, these standards are set out in the binding APS values contained in section 10 of the Public Service Act 1999.

So, we understand that public sector ethics have a particular dimension and we have a set of clear values that describe that dimension.  The next question is, how do we stack up against it in the first decade of the 21st Century?

I want to say upfront that I think that the ethical standards of the APS are generally good.  We have had our high profile ethical failures, but they have been more the result of incompetence and carelessness than corruption, and the organisations involved have moved quickly to repair the damage.

I would, however, make two qualifications:

• There are a few areas where we appear to be vulnerable, where we need to do more work or where we don’t yet have information to make a judgement 
• We are increasingly being subject to pressures and forces that will make us more vulnerable

Let’s look at this more closely. A few years back, the OECD developed an ethics checklist for the public sector. 

I recently ran a quick in-house analysis of the ethical health of the APS against the OECD checklist, using, among other things, the extensive quantitative and qualitative data that the Commission collects for the annual State of the Service Report.  The results are interesting in that they illustrate both our strengths and where we might be able to do better.

Are our basic principles and standards clear?

Are our basic principles and standards clear? I believe that the answer is generally yes. We have a Government that is highly committed to maintaining and enhancing public ethics and that has made its ethical expectations for the APS very clear. We have explicit standards in the APS Values and the Code of Conduct and there is a high level of awareness of these standards among employees.

I have a concern, however, that at 15 we have way too many values and that some of the values describe the processes needed to support and maintain principles rather than the principles themselves.  This confusion adds support to the argument that all these values are difficult for employees to remember and to apply in their everyday work. 

Some other Australian jurisdictions break down their ethical frameworks into values—which are the standards covering relationships with and obligations to Government, Parliament and the community, management principles, which cover how the service will operate and how resources will be accounted for—and employment principles, which cover how employees will be treated.

There may be a case for a schema along these lines to make it easier to understand how different elements of an ethical framework apply in different ways. I certainly believe that the current values need rationalising and simplifying to make them easier to remember, to understand and apply in every day interactions, particularly when dilemmas arise.

I have similar concerns about the existence here and there of agency-specific ‘values’.  These values may reflect an agency’s specific professional or technical standards, they may set out the sort of specific behaviours and processes that agency employees are expected to use when dealing with each other or with clients, or they may emphasise and draw out specific aspects of the APS Values.

I have no problem with agencies adopting local standards of behaviour where these help them to do their job and provided, of course, they do not contradict the APS Values.  But I’ve seen evidence that in some agencies, employees seem to believe that, for them, the local values are the primary drivers of integrity.

This concerns me because, firstly, it’s the APS Values that are the only legally enforceable values that set the ethical standard for the APS and, secondly, because agency values compound the broader problem of too many values to assimilate. I’d much prefer that agencies call them standards of behaviour or business principles.

How is an ethical culture fostered?

How is an ethical culture fostered? This is about leadership of, and support for, ethical decision-making and, again, I think we are in good shape in terms of systems and tools. A great deal of work has recently been done at both service wide and agency levels on explaining ethical standards and developing ethical decision-making models.

Despite all this work, we still have ethical breakdowns in areas such as the misuse of IT, where the integrity issues ought to be simple and clear, indicating that messages still aren’t getting through to everyone.

The Commission’ Ethics Advisory Service, which comes into operation in May, will help this situation.  The service is not just a call centre providing legislative, policy and good practice advice on the APS ethical framework.  It will also include a number of other initiatives that will also focus on raising ethical awareness more broadly, including a website, a series of new and revised publications on ethical issues and a review of the Commission’s L&D programmes to ensure that current courses effectively cover ethical issues and to canvass new initiatives.

Ethical health also depends on leadership on the ground in agencies. We have in the SES a leadership cadre that is required to model and uphold the APS Values and the Code of Conduct and whose selection and development is based around core standards of professionalism and integrity.  I can’t overemphasise the importance of leaders like yourselves not only modelling the Values and the code but helping people understand what they mean.

Is there adequate oversight and accountability?

Is there adequate oversight and accountability? This is about the actual management of ethics and about employees’ understanding of their rights and responsibilities in reporting misconduct.  Once again, there is plenty of evidence that staff are aware of and understand the systems for reporting misconduct or making a whistleblowing disclosure, yet there are odd anomalies between observed and reported misconduct.

For example, in 2007-08, 19 percent of APS employees believed that they had been victims of harassment or bullying but only 118 employees had been formally investigated for this form of misconduct.  Is this because people are too cynical or frightened to report misconduct, or that they just “let go” occasional instances as aberrations, or is it because people work things out by mediation, or is it something in between?  What messages are agency leaders sending about the management of misconduct?

Are there procedures and sanctions for dealing with misconduct?

Are there procedures and sanctions for dealing with misconduct?  All agencies are required to have systems in place to deal with allegations of misconduct and have the power to apply a range of sanctions. 

In 2007-08, in only about 4 percent of cases employees sought a review of a misconduct determination or sanction by the Merit Protection Commissioner, and in the majority of these, the agency’s original decision was upheld.

But we don’t know whether this is because people accept that the system is fair or whether there is disillusionment about review processes.

Is the public well-informed?

Is the public well-informed?  There is an array of watchdog bodies – the Australian Public Service Commission, the ANAO, the Ombudsman, the Privacy Commissioner, not to mention Parliamentary Committees, that periodically inquire into and report on the professionalism and integrity of the APS.  A  Government-tasked Parliamentary Committee released a report this morning of an inquiry into whistleblowing protection in the Commonwealth, and while I haven’t had a chance to study it, I understand that it recommends a considerable broadening and strengthening of protection for Commonwealth public servants who make public interest disclosures.

These bodies and these initiatives, valuable as they are, tend to focus on particular issues or react to specific problems.  There are few systems or tools that enable the average citizen to check the ethical health of an agency or the Australian Public Service on a systematic and ongoing basis.

There is a case for some sort of checklist along the lines of the OECD model that could be applied to the public service as a whole.

Let me make it clear once again that I don’t believe that these concerns necessarily undermine our reputation as a highly ethical service but they do indicate areas where we need to do some more work.

I now want to focus on what I believe are some of our broader vulnerabilities because I think that’s where you, as leaders, can make a particular contribution.

Government and Public Service

One of the things that the OECD checklist doesn’t mention is the impact of Government culture on the public service.  Unethical Governments nurture unethical public services.  A jurisdiction might have excellent legal and policy frameworks governing integrity, but these won’t necessarily protect an official who is being pressured by a Government to do something wrong or shady and who fears for their livelihood if they don’t comply.

While this sort of thing is not at all commonplace in the APS, there is a view that the balance between independence and responsiveness has shifted in Australia and that responsiveness itself has come to mean simply telling the Government what it wants to hear.  This view has been overstated, but I do believe that there have been times when Australian public servants have felt themselves under pressure to make decisions or tailor advice in ways that furthered a Government’s political interests.

The Government has moved to restore confidence in an independent and apolitical public service through a series of initiatives around agency head appointments; Secretaries’ incumbency and remuneration; relations with lobbyists; advertising and information activities and ensuring that Ministerial advisers understand and respect the ethical framework within which public servants operate.

As the 2007-08 State of the Service Report indicates, these moves have gone a long way to restore the confidence of public servants in their ability to provide independent and impartial advice. 

Yet what we are talking about here goes beyond “frank and fearless” in policy and programmes advice.  What we need to maintain and nurture is a relationship between the public service and the Government of the day – a dialogue if you like - where public servants are confident about raising real or perceived ethical abuses and where the Government can understand and respond to their concerns.  We have already made a few small steps in this direction through the briefings we have given to Ministers and their staff about the APS ethical framework.

Please be clear that I am not saying that there is any likelihood now or in the foreseeable future of an Australian Government becoming corrupted on the scale that we see in many other parts of the world.  But I do believe that in an increasingly fluid and volatile environment, there will be greater expectations of Government and greater pressure on it, often by competing interests, to deliver.  There will be temptations to cut corners, and  both the Government and the public service need to be vigilant about abuses creeping in and to be able to talk to one another when they perceive problems.

To build such a relationship is one of your first challenges as leaders. Other challenges are emerging from the way in which our operational environment is changing.

Key elements of our ethical framework are premised around the process of communication through the making and distribution of written hard copy.  It is, for example, relatively easy, when communicating with stakeholders through the mail, to be impartial, objective, unbiased, to measure words or phrases so that, consistent with the Westminster model, you can’t be accused of advocating, rather than simply providing information on, Government policies and programmes. 

This is changing.  People no longer want to input to policy development or seek information on programmes by letter, they want to do it in real time through a blog.  As many of you may know, the Government is already trialling the possibility of a single entry point online consultation forum. 

New communications systems – email, facebook, U-tube, blogs - present a significant ethical challenge in several areas:

• It will be much trickier to manage perceptions of politicisation and of advocating Government policies when public servants are in an online dialogue with the community, particularly when some input may need to be moderated by the public servant
• The speed and breadth of online communication means that we can never be certain where it might end up or who might read it. A public servant might make a legitimate comment as a private citizen on some issue or other, and may find themselves on a website where these remarks are presented as official comment
• It will also affect how we apply other key elements of the values, including the requirements to behave with respect and courtesy and without harassment, to protect confidentiality, to maintain accountability through record keeping, to make proper use of Commonwealth resources and to uphold the integrity and reputation of the APS.  How we manage these and other values will take on another dimension when views can be spread very quickly and very widely through online media and can easily be subject to distortion and misrepresentation.

ICT is an area where we are already vulnerable and these developments are going to make the issue even more complex.

We also have to deal with the fact that the Australian public service is increasingly opening up.  At one level, this is simply demographic.  In 2007-08, around 16,000 staff were recruited from outside the APS.  Over half of these recruits (56.6 per cent) were aged 30 and over.  A third were recruited to senior and middle management positions (APS 5 and above).

 As a result of employment policies, labour market pressures and other changes over the last decade, people with a variety of previous experiences in different employment cultures are moving into the APS and some of them are occupying leadership positions.  We can no longer rely solely on long term workplace socialisation to ensure that APS staff understand and apply public service ethical standards.

It isn’t just labour market forces that are driving these sorts of pressures.  The Government believes that if the Australian Public Service is to function effectively in an increasingly fluid and globalised environment, then it can’t rely solely on its own ideas and resources.  It has to build up relations with, and draw on the experiences of, outside individuals, organisations and sectors.

The Prime Minister has made this clear. In his presentation to agency heads and the Senior Executive Service on 30 April last year, he set out in some detail his expectations of the APS and its performance. 

Running through his expectations was a consistent thread involving :

• enhancing professional excellence through employing people with a wider diversity of work experience, including from the private, the voluntary and community sectors and from other public services
• using evidence-based policy, including sharing our experiences across States and Territories and keeping track of what is happening overseas
• building long term strategic policy capabilities through better connections across governments
• making government inclusive and innovative through engaging citizens as well as experts, think tanks, business and community groups, in policy development and programme delivery
• no particular ideological preference for private over public or vice versa in service delivery—with these decisions being made on the basis of efficiency and effectiveness.

This will involve two interrelated challenges.

Firstly, it means developing new relationships with a variety of people and groups outside the public service. It means working with and within different cultures and taking on new ways of thinking and new ways of operating.  It will mean being more innovative, more creative, more nimble and more entrepreneurial.  It will mean taking more risks, experimenting more, and trialling new approaches with uncertain results.

These relationships will inevitably mean that the scope and complexity of the ethical issues we face and the ethical decisions we need to make will increase rather dramatically.

Secondly, it means that it’s not just a matter of people outside the APS being helped to understand our ethical framework, it also means that we may need to think about the way in which we interpret and manage our own ethical framework, to find common ethical ground with other jurisdictions and sectors, to build bridges with them on the basis of these values and in some cases even modify our practices to take account of other cultures.

I should make it clear that I don’t think that this would involve any radical rethink of our ethical framework.  Recently I did a quick comparative survey of the various ethical frameworks of Australian State and Territory jurisdictions, and I found that there are strong common themes.  We all value independence and impartiality, we all aim in one way or another to be responsive to Government and clients, we’re open and accountable, we use our resources effectively and responsibly, we strive to achieve high performance, we value fairness and diversity, we use merit as the basis for staffing and we treat our clients and each other with respect and courtesy.

I believe that there is a good case for developing some sort of overarching common ethical framework or principles that we could all subscribe to and that would govern joint and cooperative activities, and I will be pursuing this with my Commissioner colleagues at out next meeting in March.

So what does this all mean for you as APS leaders in the new century?  Well, firstly I think the assessment against the OECD index indicates that while ethical frameworks and processes, guidelines and training are all important, they have to be backed up by ongoing ethical leadership in the workplace, which is supported by the Government of the day, otherwise we still cannot be sure that people understand their ethical rights and obligations and will always do the right thing.

Secondly it means that ethical leadership in the workplace will become even more important in the fluid operating environment of the future, where there will be new pressures on government and as we move to new technology, to tap new labour markets and to take on new ways of working.

Ethical leadership in the workplace

By ethical leadership in the workplace, I mean an ongoing conversation about ethical behaviour.  I am asking you to talk to your people about the ethical challenges they are likely to confront, to talk them through the issues and choices that they may need to consider and to discuss examples of good ethical decision making.  Apart from improving their ethical judgements, a dialogue is going to encourage people to talk about ethical problems and to ask for guidance when confronted with an ethical dilemma.

Failure to openly explore ethical issues in the workplace, including being clear about what constitutes bad behaviour, may be one of the reasons why we still have ethical failures. 

Let me leave you to think further about your role as leaders in addressing this.

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