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Last updated: 9 March 2006

Please note: This document is for reference purposes only and is no longer considered by the APS Commission to be current.

Supporting Ministers, Upholding the Values

Part two: Agency protocols

The Public Service Commissioner’s statutory functions (section 41(1)(a) and (b) of the Public Service Act 1999) include requirements to evaluate the extent to which agencies incorporate and uphold the APS Values, and the adequacy of their systems and procedures for ensuring compliance with the Code of Conduct (which includes the requirement at all times to behave in a way that upholds the APS Values).These requirements imply that agencies will have policies and procedures that reinforce and promote the Values.

The extent to which agency policies and procedures need to be documented into clear protocols to guide relations with Ministers and their offices is a matter for judgement. The Commission’s good practice guide on Embedding the Values gives examples of good agency practice in supporting particular APS Values, including those that bear on relationships with the Government and the Parliament. Through the evaluation underpinning this guide, and through its State of the Service employee surveys, the Commission has found that there is a strong case for more extensive articulation of agency guidance in this area.

• Of the significant proportion of APS employees who have contact with Ministers’ offices, around a third have consistently reported facing a challenge in balancing the Values. Agency-specific results available for large agencies varied widely. In 2005, the proportion of relevant employees in these agencies that had faced a challenge ranged from 12% to 52%, yet only two of the fifteen large agencies surveyed in 2005 reported having agreed written protocols relevant to resolving staff concerns that may arise about the nature of requests from Ministerial offices. Nine reported having unwritten protocols.
• Employee confidence in dealing with Ministers’ offices varied markedly by agency, suggesting that agency-specific arrangements are influential.
• Guidance that agencies provide to their staff is mixed in its coverage so that, for example, most agencies reported that they have a ‘minimum sign off ’ policy that requires written briefs and other work for Ministers to be cleared at the Senior Executive Service level before they go to a Minister, but few agencies reported having policies guiding phone contact. Some policies and procedures are not documented, or are not readily accessible to staff outside Ministerial liaison areas.
• Staff consulted through the State of the Service employee survey and during the Australian Public Service Commission’s evaluation made clear the benefits of explicit protocols both to inform them in making judgements, and to provide an important reference in the event of disagreement with the Minister’s office, reducing the need to escalate an issue to more senior levels.

Good practice can include documenting agency policies and procedures on normal working arrangements with Ministers and their offices as written protocols, in consultation with the Minister and Chief of Staff. Such guidance may cover general agency arrangements, and roles and responsibilities, as well as specific issues that may raise challenges from time to time.

Cross references in agency protocols to Australian Public Service Commission guidance and to guidance from the Department of the Prime Minister and Cabinet may help to avoid ‘reinventing the wheel’ while also giving the agency material some additional authority.

A number of agencies taking part in the development of this guide identified a need for good working models of agency protocols that could readily be adapted by other agencies. Examples of good practice protocols provided by agencies as part of the evaluation have been cited throughout this section and can be found at length in separate appendices to this publication.

2.1 Protocols on general agency arrangements, roles and responsibilities

Articulation of general agency arrangements, and roles and responsibilities may include administrative issues (such as workflow arrangements and pro formas), and material on agency-specific aspects of roles and responsibilities, such as agency-specific legislation, and agency arrangements for delegation (for example, under financial legislation). Clarifying these for both agency employees and for the Minister’s advisers can be important in strengthening the relationship through better understanding of respective roles and responsibilities.

The Department of Agriculture, Fisheries and Forestry maintains a Parliamentary Liaison Handbook with date-marked pagination that contains a current listing of all the responsibilities of individual advisers in the Minister’s office.

It is important for APS employees to understand the legal framework in which they work. This does not apply only to the increasing numbers of APS employees interacting with Ministers’ offices: one in three Executive Level employees and one in four Senior Executive Service staff are engaged from outside the APS. Ministerial advisers may find such information equally helpful, as it can assist in clarifying respective roles and responsibilities.

Good practice can be preparing a document describing the framework within which the agency operates, particularly any relevant statutory and administrative features, and roles and responsibilities. The Department of Transport and Regional Services has developed a Legislation Directory that is summarised at Appendix 3.4 to this guide.

Staff turnover in Ministers’ offices is typically higher than in agencies, and staff in an office may also change roles over time. It can be helpful for employees to know the structure of the Minister’s office and what changes take place in it.

Good practice can be the inclusion in agency materials of a regularly updated listing of the names and responsibilities of all staff in Ministers’ offices.

The Australian Public Service Commission’s evaluation found that most information regarding interacting with Ministers’ offices was learned through experience on the job. In this environment, there is often simple information that could be of use to employees that never gets written down, because it is assumed that employees either know it or will be told.

Good practice can be documenting for employees’ information basic details about the channels of communication that the agency maintains with Ministers and their offices. One department, for example, prepares documentation setting out the regular meetings that occur between agency officials and the Minister, and how these work (example at Appendix 3.5).

Good practice can be preparing information sheets that explain to employees the agency’s operations on a normal parliamentary sitting day. The online information sheet used by the Department of Family and Community Services offers a useful example of this practice (see Appendix 3.6).

Good practice can be having statements of employees’ roles and responsibilities in dealing with Ministerial material. An example of this practice as it applies to Ministerial correspondence taken from the Australian Taxation Office is at Appendix 3.7.

Minimum levels of ‘sign off ’ are important to assuring quality and are not intended to constrain information flow. This can sometimes be misunderstood. Similarly, requirements for oral communications to be reported up the line are aimed at ensuring that advice is comprehensive and accurate and draws fully on all the expertise and experience that is available. Such requirements can be particularly useful in the initial period after the appointment of a new Minister to ensure the agency head and senior management can quickly appreciate the Minister’s requirements, style and priorities. They are also important to allow the agency head to meet his or her statutory responsibilities for managing the agency.

Good practice can be to spell out who is authorised to clear briefs or provide advice and how less formal communications are to be reported up the line, as measures to promote quality of service to the Minister and the office.

Questions for agency leadership and Ministerial liaison areas to consider include:

• How would a new employee in your agency, or a new member of the Minister’s office, find out about the statutory framework in which you operate, that might impact on interactions between your agency and Ministers’ offices?
• How would they find out with whom to deal in their Minister’s office on particular issues?
• Do staff understand the standards of service expected, and their responsibilities to keep senior management informed?

2.2 Specific protocols on specific issues that may raise challenges

There will inevitably be situations in which employees may have concerns about the nature or content of what is wanted. Sometimes these concerns will be entirely legitimate; sometimes they may reflect a misunderstanding of the request or inappropriate protection of a previous policy or practice. Public servants must be responsive to Government, but they are also required to be apolitical and accountable, and to comply with the law. Agencies should establish whether there are particular issues that present challenges to their staff from time to time and that might call for more specific guidance than that available from the Public Service Commissioner or from the Department of the Prime Minister and Cabinet.

Consultations conducted as part of the evaluation underpinning this guide indicated that APS employees in a range of agencies are more likely to face particular 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
• ad hoc requests.

While it is simply not feasible (or sensible) to have written guidance on every contingency, preparing written policies does provide the opportunity for discussion with the Minister and the office in advance of particular challenges arising, and hence can help to avoid future issues arising.

As a general guide to any such policies, there is a line many agency heads have used in the past: ‘if you aren’t sure about whether you are doing the right thing, ask yourself: would I be confident that this course of action would be defensible if it were raised in Senate estimates hearings?’

Questions for agency leadership to consider include:

• What steps has your agency taken to determine the areas where your employees would or should require agency policies that guide interactions with Ministers’ offices? What steps could your agency take?
• What are the most common types of concern employees have about balancing the APS Values in your agency?
• What policies has your agency developed to respond to these concerns? Do your employees know about them?
• What information does your agency make readily accessible in response to these concerns?

2.2.1 Caretaker periods

Consultations undertaken as part of the Australian Public Service Commission’s evaluation indicated that some agencies experience a build up in requests for briefings and speaking notes in the run up to a caretaker period. Agencies should continue business as normal until an election is actually called, applying the criteria of responsiveness, apolitical professionalism and accountability to judge the appropriate response to these as to all requests from Ministers. Agencies should be careful not to allow the possibility that an election will be called to constrain the capacity of the elected Government to govern.

When caretaker arrangements begin, the Government is still the Government, but by convention a number of important constraints or caretaker conventions come into operation. Agency heads and the Senior Executive Service have particular responsibility for advising Ministers, and staff, of the conventions and their interpretation in particular circumstances as they arise.

While agencies should continue business as normal until an election is actually called, they should discuss with senior managers or the Department of the Prime Minister and Cabinet any concerns they may have that they are being asked to move beyond their normal functions to provide assistance to Ministers or their staff for the purpose of use during an election. It is not for an agency to determine that factual information will not be provided because it may be used during the campaign. It is, however, important that agencies not be asked to perform work that is not relevant to their responsibilities.

The Government Division within the Department of the Prime Minister and Cabinet not only provides advice on caretaker conventions but also has dedicated staff available during the caretaker period who can advise on issues agencies may identify.³⁰ Relevant guidance is always available on the Department’s website.³¹ The Australian National Audit Office’s newly updated Better Practice Guide, Managing Parliamentary Workflow, also offers guidance in this area.³² In the period preceding elections, the Australian Public Service Commission runs courses on applying the caretaker conventions.

Good practice can be obtaining advice on caretaker periods from the Department of the Prime Minister and Cabinet, and circulating it to all staff, indicating that it is the approach to be taken within the agency.

Good practice can be discussing the implications of caretaker convention requirements well in advance with the Chief of Staff, with follow-up discussion with the Minister and Chief of Staff as soon as the election is called and, if possible, before the caretaker period commences.

2.2.2 Disbursement of grants and making appointments

Consultations conducted as part of the Australian Public Service Commission’s evaluation identified interactions with Ministers’ offices on disbursement of grants or making appointments as situations in which APS employees might benefit from advice that is tailored to agency circumstances. General guidance provided in APS Values and Code of Conduct in Practice: A Guide to Official Conduct for APS Employees and Agency Heads refers to broadly applicable statutory obligations and responsibilities in both sets of circumstances.

 

Discretionary grants involve payments that require the exercise of discretion by the portfolio Minister or paying agency. They can involve:

• ad hoc grants that are made on a one-off basis, as well as grants renewed under continuing programmes
• grants-in-kind or services-in-kind provided in lieu of grant payments
• payments which organisations or individuals receive after satisfying eligibility and/ or reporting requirements including some rebates and scholarships.

Agencies can be concerned if it appears that a Minister’s office is suggesting payments, grants or agreements outside the guidelines for grant programmes. The key to making this work effectively is having very clear guidelines for the programme established right at the outset, so that the Department can always be clear about consistency with the guidelines. In most cases, programme guidelines are subject to clearance by, or at least discussion with, the Minister to ensure they reflect Government policy as well as legal requirements.

In addition to portfolio arrangements, the Australian National Audit Office’s 2002 Better Practice Guide, Administration of Grants, provides practical assistance to those who may be involved in the planning, project management and review of grant programmes within the Commonwealth. The guide notes that ‘decision-makers, including Ministers, are not obliged to accept the recommendations of officials but the reasons that they disagree with the assessment should be documented.’³⁵

When the guidelines are clear, there is seldom conflict with the Minister’s office. In the end, decisions about spending Government money are made by portfolio Ministers, except where a grant creates a funding commitment of greater than 12 months, which requires the prior approval of the Minister for Finance and Administration.³⁶ Guidelines are simply that—guidelines for APS employees. Of course, if a conflict arises between government policy, agency guidelines and the law, the law prevails.

The making of appointments is a very significant government activity with important long-term implications. The Cabinet Handbook provides guidance on:

• which Ministerial appointments are subject to approval by the Prime Minister or, at the Prime Minister’s discretion, the Cabinet
• considerations that apply in bringing forward such nominations
• general principles applying to conflict of interest in making nominations.³⁷

If necessary, the Cabinet Secretariat can provide advice on past practice with respect to particular appointments, or how to apply the Cabinet Handbook criteria for determining which appointments require Prime Ministerial or Cabinet endorsement.

If the proposed appointment does not require such approval, the same broad principle can be applied to appointments processes as to the disbursement of grants, that is, agencies should ensure that very clear guidelines are established at the outset, so that the Department can always be clear about consistency with the guidelines. In most cases, guidelines on the making of appointments would be subject to clearance by, or discussion with, the Minister to ensure they reflect Government policy as well as legal requirements.

While agencies can be concerned if it appears that a Minister’s office is suggesting appointments be made outside the established guidelines, when the guidelines are clear, there is seldom conflict with the Minister’s office. Again, if a conflict arises between Government policy, agency guidelines and the law, the law prevails.

Good practice can be ensuring that both the Minister’s office and relevant employees are fully briefed on the processes under which grants schemes and appointments processes operate, including any statutory constraints that may apply. Where appropriate, proposed guidelines should be discussed with and/or agreed by the Minister.

2.2.3 Revising briefing materials

Agencies regularly provide briefings to Ministers. In this context responsiveness to the Government means providing frank, honest, comprehensive, accurate and timely advice. Employees providing briefs may receive requests from Ministers’ offices seeking changes or additions to briefs the Minister has received from the agency. This may mean that briefs have not been sufficiently comprehensive or have been overtaken by events, or that new matters have come to light; on occasions, it may represent a request to vary the advice or restrict the scope of the brief.

On dealing with differences of views between the Department and the Minister’s office, participants in the evaluation underpinning this guide emphasised the usefulness of discussing these differences with advisers.

Where briefs have not been sufficiently comprehensive, APS employees can provide supplementary briefing or amend existing briefs. Supplementary briefings have the advantage of ensuring that the agency’s original advice remains intact, while any requests for additional information or advice can be fully met. Amending the existing brief to insert additional material can ensure that all relevant considerations are canvassed together in one place. It is critical that both supplementary briefing and additions to original briefs clarify what advice has been provided at the request of advisers (‘your office has also asked that we canvass …’).

In addition to seeking more comprehensive briefing, advisers may also ask APS employees to vary the advice or restrict the scope of the brief. Advice should not be changed or opinions omitted if the agency remains of the belief that particular arguments should be considered by the Minister. Where any changes to advice are involved, the brief should record the nature of the changes and the source of the request for change.

Consultations preceding this guide encountered a general view that it was appropriate and potentially constructive to deal with requests for additional advice by presenting a range of options, but that the Department should always remain clear about its preferred options and reasons (at the same time, agency responsiveness includes support for implementation of the option chosen by the Minister once the agency’s advice has been considered regardless of whether it reflects the Department’s preferred approach).

Good practice can be ensuring that briefings are comprehensive and outline a range of options for action, and the agency’s analysis of the implications of the options, rather than providing only a single or a limited range of options. Where additional material is sought, it is important that any supplementary briefing or additions to original briefs clarify what advice has been provided at the request of advisers (‘your office has also asked that we canvass …’) (see, for example, General Principles for the Preparation of High Quality Advice to Ministers, prepared by the Department of Transport and Regional Services, at Appendix 3.1).

In general, briefing advice should not be changed or opinions omitted if the agency remains of the belief that particular arguments should be considered by the Minister. Where any changes to advice are involved, the brief should record the nature of the changes and the source of the request.

Good practice can be indicating in any briefing material or record where supplementary briefings have been prepared at the request of a Minister or a Minister’s adviser.

2.2.4 Providing briefings that relate to particular electorates

The public service can be called on by Ministers to provide briefing material and speeches tailored to specific electorates. This is quite in order as long as the information relates to the responsibilities of the portfolio. Indeed, there is a public interest in governments having robust and authoritative information on the performance of taxpayer funded policies and programmes.

Electorate briefing requests can vary considerably depending on portfolio responsibilities, the priorities of Ministers, and the availability of robust data. In broad terms, briefing material that provides data about the effect of Government programmes or policies on particular electorates can be prepared in response to particular requests (‘on demand’ briefs) or as part of a routine reporting procedure (‘standardised’ briefs).

Agencies should respond positively where Ministerial offices seek ‘on demand’ briefing materials and speeches tailored to a specific electorate in relation to their engagement in particular functions or activities, so long as the collation of electorate-specific data is consistent with prudent management of agency resources. Speeches and speaking notes should be prepared on the assumption that the Minister’s office will incorporate political commentary. Speeches should not be prepared for Ministers during the caretaker period.

Similar ‘on demand’ requests from Government backbenchers should also be met where the backbencher is representing the Minister on the task that gave rise to the briefing request, or the information is readily available to any Member of Parliament. Provision of electorate briefing material directly to Government backbenchers would otherwise generally not be appropriate. Any requests for briefing by backbenchers should be made through the relevant Minister’s office.

Good practice can be advising employees to distinguish between providing information by electorate to the Minister (which may be appropriate), and providing information directly to Government backbenchers (which is generally not appropriate).

Where briefing is being prepared on an electorate basis, it is good practice to use community-wide standards of statistical reliability and privacy, and a timescale relevant to the services delivered.

If a Minister is travelling to an electorate they may be asked questions on a wide range of government policy issues. Some of these may be issues in which they have been involved as a member of Cabinet or current hot issues, so they may have a good general understanding of the particular topic. Other topics may involve more detailed decisions, for example, infrastructure funding, or sensitive issues in a particular electorate. Briefing is often requested to ensure that the Minister is able to handle such issues accurately.

The general practice is that departments contact one another for briefing or facts and then add this information to the package of material provided for the visit. The degree of assistance will reflect the size of the request and the availability of the information (generally it is off -the-shelf material).The case of briefings for overseas travel or meetings is similar (for example, for travel by the Prime Minister material may be sought from a range of public service agencies). However, again there are limits. If a department has a concern about a request that could not be resolved directly, it should be clarified through Ministers’ offices.

2.2.5 Supporting Cabinet processes

The Cabinet Handbook³⁸ lays down the principles and conventions by which the Cabinet system operates, and clarifies the distinction between submissions (in which Ministers take their policy proposals to Cabinet) and memoranda (which are prepared by department officers, generally in response to a request by the Prime Minister or Cabinet for information). Submissions seek decisions on the Minister’s recommendations; memoranda present the conclusions departments and agencies in a Minister’s portfolio are seeking to convey, conclusions that may form the basis for a Cabinet decision.

Further detail is available in a drafters guide for the preparation of Cabinet submissions and memoranda available from the Cabinet Liaison Officer in each department.

A number of the principles already articulated in this guide apply to the involvement of APS employees in the preparation and handling of Cabinet documentation. Though confidentiality is important in all interactions with Government, particular caution should be exercised around the preparation of Cabinet material and Cabinet deliberations. All Cabinet documents are security classified at least at the confidential level and special handling requirements are mandatory. The Cabinet Handbook lays out guidance on the safe storage and circulation of Cabinet documents and makes it clear that access is on a strict ‘need-to-know’ basis.

Because a submission contains the Minister’s proposals, it is critical that public servants involved in the policy development and drafting stage closely consult with the Minister and his or her office. It is important to bear in mind throughout the process that, though advisers have a very good appreciation of the Minister’s requirements and views, they do not themselves have power to give directions and agencies need to take steps to ensure that they are reflecting the Minister’s directions.

Submissions prepared by agencies working alone or collaboratively through interdepartmental committees are generally consensus-based and drafted to reflect the views of the Ministers concerned. Where Cabinet Ministers bring submissions jointly and disagree, this will be reflected through Ministerial comments in the submission identifying those recommendations on which agreement has not been reached.

Submissions that have been prepared by task forces (rather than inter-departmental committees) do not rely on consensus-based decision-making, often addressing whole of government issues where complex matters have been forced to decision. Usually, the head of the task force accepts responsibility for drafting the decisions and/or recommendations of the submission on behalf of the Minister responsible for the lead agency.³⁹

Unlike submissions, Cabinet memoranda are departmental documents, and should not be seen as necessarily binding portfolio Ministers or reflecting their views, although they are still taken to Cabinet by Ministers. This means that, while close consultation with the Minister and/or the Minister’s office will still be required, the findings and conclusions will be those of the Department.

Similarly, coordination comments on both submissions and memoranda are recorded as the views of the departments providing them, are intended to add to the information available to the Cabinet in its deliberative processes and should not be seen as binding Ministers or necessarily reflecting their views. The Cabinet Handbook notes that it is for departments to settle with their Ministers the extent to which Ministers may wish to clear their department’s coordination comments or otherwise be drawn into the consultation process. Frequently, Ministers may prefer to reserve their contributions for Cabinet discussion.

2.2.6 Supporting Budget processes

Budget preparation processes can be opaque for new Ministers and their offices. As well, Budget timetables or guidelines can be revamped by governments so that agencies need to review their processes. Nevertheless, some broad principles will continue to apply and agencies should ensure adequate briefing and advice on process is provided to the Ministers and their offices.

The Budget provides the opportunity to identify cross-portfolio priorities and establish how they are to be considered. Ministers should be assisted by the APS to determine the most suitable form of appropriation and, where relevant, governance (decision- making) structure, information sharing arrangements, accounting procedures, reporting mechanisms, and timing and evaluation requirements.⁴⁰

Agency Budget costings must be identified as either administrative expenses or departmental expenses. Governments generally prefer to see departmental expenses minimised and this can mean that agency heads need to ensure that Ministers and their advisers are fully briefed on the implications for programme administration of the ways in which expenses are identified. New governments also need to be advised that recurrent expenditure authorised by the previous government through legislation means that they are not starting the Budget process with a clean slate.

Budget processes involve extensive consultation and require long timeframes. New Ministers should be advised that if the costs of the initiatives they are proposing are not to be off set against ongoing expenditure, agencies will need to engage in a cooperative process with central agencies, and parallel cooperative processes will be required at the Ministerial level. Such parallel processes involve close cooperation and iterative information sharing between the Minister’s office and the portfolio department.

In the case of new Ministerial offices, there may be value in agencies making training available to advisers who are going to be involved in the Budget process.

Good practice can be ensuring that Ministerial staff understand key features of the Budget process, including the importance of establishing reliable, reasonable timeframes to accommodate any consultation processes the Government wishes to establish. Offices should be engaged in close and iterative processes between senior managers and advisers under the guidance of Ministers and agency heads.

Good practice can be ensuring that Budget costings agreed with the Minister and advisers reflect the form of appropriation that is most appropriately aligned to the budgeted activity.

Good practice can be covering off process arrangements for Budget preparation in incoming government briefs and in training provided by the agency for new advisers.

2.2.7 Record keeping

Record keeping has attracted substantial attention in recent years, both in general reports such as those by the Australian National Audit Office and the Australian Public Service Commission, and in the context of specific cases of concern such as the Magnetic Resonance Imaging Services case, A Certain Maritime Incident and the Palmer inquiry. In part, this increased attention arises because record keeping in the APS has been affected by greater public scrutiny through administrative law reform and parliamentary oversight over the past few decades, but it is also due to the greater emphasis on achieving results.

 

Keeping good records is essential to accountability. The suggestions, decisions and recommendations made in the course of interacting with Ministers’ offices can be amongst the most important information that an agency works with. An equally important reason to keep good records is to ensure that Ministers’ wishes are faithfully understood, communicated and acted on. More broadly, the purpose of good records is to accurately guide agencies’ activities. Against this background, the Palmer report has recommended that executive management should be personally accountable for ensuring that sound file management practices are followed (Recommendation 5.1).⁴²

Good practice could include ensuring that executive management makes itself personally accountable for ensuring that sound file management practices are followed.

The Freedom of Information Act 1982, allows the public access to most government- held documents. While the possibility of public access may properly influence how some communications are recorded, it is important to resist pressure to avoid making records where they would indeed clarify the decision-making process and accountability.

Agencies may refer freedom of information requests to legal staff or provide legal advice to employees handling such requests. Some agencies have identified types of information that may be disclosed through less formal means than requests. The Freedom of Information Act requires most government agencies to publish information about the manuals and other documents they use to make decisions or recommendations that affect the public.

This guide does not deal with public access to information through the Freedom of Information Act, or with record keeping processes in general; the Australian Public Service Commission encourages agencies to refer to the Archives’ work⁴³ (see the resources section at the end of this guide). However, consultations conducted as part of the evaluation identified some useful good practices in relation to record keeping in interactions with Ministers’ offices.

Most agencies find that a great deal of interaction with Ministers’ offices is by telephone or email; and most is with Ministerial staff rather than with Ministers themselves. Compared to agencies, Ministers’ offices are small, and often one adviser has responsibility for a substantial policy area. In contrast, there can be many people in an agency who will help respond to a request from a Minister’s office. Since many of those requests originate in conversations and emails, it is important that records of these are kept on files, so that all employees working with the file are working from the same information. This is important to avoid misunderstandings that can damage the relationship.

Participants in the evaluation undertaken by the Australian Public Service Commission were concerned that the increasing use of email could make decision processes harder to track. They also noted that the increasing use of the telephone was making record keeping more difficult. On the positive side, emails could often be copied to several people, increasing the extent to which records could be kept.

Records need not be extensive: the Australian National Audit Office’s audit reports on Recordkeeping⁴⁴ and the Australian Public Service Commission do not suggest that every meeting be recorded, or file notes prepared on every phone call, or every email be retained (although employees should be aware that any email, and not just those that have been formally put on the record, can be the subject of a freedom of information request). As the audit report on Magnetic Resonance Imaging Services indicates:

On key issues, and where sufficient time is available, it is good practice for departments to use written briefings to provide assurance that the issues and options are clearly presented to the Minister and that any decisions taken by the Minister are understood and recorded … In addition, it is also good practice for departments to maintain a record of oral briefing of significant issues and any resulting discussions and decisions. Briefings and records maintained need not be lengthy, but should be fit for their purpose.⁴⁵

Good practice can be having a written agency policy that significant contact by employees with Ministers’ office staff, whether face-to-face or by phone, is recorded in a file note. Similarly, emails should be retained in the agency’s record keeping system.

Whether or not written records exist, agency policies, procedures and written protocols should make it clear that the leaking of confidential material by public servants is not acceptable.

It is always possible to cite worthy intentions by individuals who leak, and give examples of the cases where poor decisions have been exposed by leaks, noting the public interest then served by the subsequent corrective action. Leaving aside the deceit involved in leaking, the downside, even in cases of worthy intentions and poor decisions, is considerable. Inevitably, the consequent lack of trust constrains relationships, reduces departmental influence and the range of experience and expertise that goes with it, and limits the range of perspectives that can be brought to bear.

2.2.8 Responding to questions on notice and appearing before parliamentary committees

Responding to parliamentary questions on notice and to questioning before parliamentary committees is a responsibility that falls to significant numbers of senior APS employees. The 2003–04 State of the Service report found that of the 73% of Senior Executive Service employees who had had direct contact with Ministers’ offices in the preceding year, 68% had been involved in Parliament-related functions.

Responses to questions on notice are Ministerial and not departmental. Draft responses should be prepared and provided to the Minister.

Public servants are regularly called upon to provide information directly to the Parliament by appearing before committees. Guidance on appearing before parliamentary committees is available in the Government Guidelines for Official Witnesses before Parliamentary Committees and Related Matters on the Department of the Prime Minister and Cabinet’s website.⁴⁶

The key principle applying to these interactions is the need to maintain the confidence of both the Minister and the Parliament. APS employees are required by the Parliament to provide full and accurate information about the factual and technical background to policies and their administration. This may include reasons for the policy, but not comment on policy.

Most APS employees liable to appear before the Parliament know when they are likely to be asked sensitive questions, and when full and accurate information on the facts may be politically embarrassing. They should be aware that they are not expected to volunteer information, and need to forewarn Ministers where information that would have to be provided could be politically contentious. Public servants are required, when asked, to explain the reasons for and implications of policy and would be expected to do so in a way that avoids undermining the policy objectives. But they must not mislead, or actively avoid answers or cross the line to sell policy rather than explain it.

When public servants take questions on notice, they should prepare written responses as if they were a continuation of the evidence given and follow the same guidelines as for oral evidence. The responses should not, for example, discuss the merits or otherwise of policy. Despite the difference in nature between responses of this kind and questions on notice to Ministers, it is accepted practice that draft responses to questions taken on notice by public servants appearing before committees are cleared by the relevant Minister.

It should be a key aim of agencies to ensure that employees who are likely to be required to appear before committees are well equipped to respond in a manner that is consistent with their rights and responsibilities. The most common measures used by agencies to equip their Senior Executive Service employees appearing before parliamentary committees have been learning through attendance and observation, internal briefing of staff prior to attendance and self-nominating attendance at training courses or presentations.

Thirty per cent of agencies with Senior Executive Service employees appearing before parliamentary committees indicated in the survey conducted for the 2003–04 State of the Service report that they had written internal guidelines applying to such appearances.

Good practice can be having written agency protocols or other guidance to assist Senior Executive Service employees appearing before parliamentary committees to respond in a manner that is consistent with their rights and responsibilities.

2.2.9 Assistance with media issues and public presentations by public servants

Agencies are likely to receive requests for material for the media or for checks on material prepared in Ministers’ offices. Examples of such requests are: draft press releases, letters to the editor, ‘opinion editorial’ pieces or articles, and draft interview answers. These will explain policy, provide information or correct factual errors.

Public servants should respond to such requests, but should, as always, avoid any contribution of a party political nature. They should ensure that facts are accurate, and any political comments can be added in the offices.

Where employees have any concerns that the information they have provided has been presented inaccurately, this should be conveyed to senior managers. Senior managers in their turn have a responsibility to keep employees in touch with any steps that have been taken to address their concerns.

Ministers will on occasions require public servants to assist with media presentations on technical matters. If asked, public servants should explain the reasons for and implications of government policy, but should avoid advocacy which is the role of the Minister.

Where Government backbenchers are asked by the Minister to represent them personally—by making a presentation on behalf of the Minister or by receiving a delegation on behalf of a Minister, for example—they may request the assistance of agencies through the Minister’s office. It is not appropriate for backbenchers to approach agencies directly for assistance.

The Australian Government Information Management Office’s Guidance on Departmental and Ministerial Websites provides guidance on the placement of Ministerial media releases and speeches, indicating that these are in most circumstances placed on Ministerial sites only. Many agencies provide interested visitors to their website with links to the Ministerial site where they can access any press releases (see Guidance on Caretaker Conventions (July 2004) for information on websites during the caretaker period).

 

30 Contact information for this service is available at the back of this publication.

31 Department of the Prime Minister and Cabinet, Guidance on Caretaker Conventions, July 2004, <http://www.pmc.gov.au/guidelines/index.cfm>

32 Australian National Audit office, Managing Parliamentary Workflow, Better Practice Guide, April 2003, pp. 34, 35, <http://www.anao.gov.au>

33 Section 6(2).

34 Other useful references include: The Delegated Authority Handbook (1994) issued by MAB–MIAC, which explores issues related to delegation, and Legal Issues: A Guide for Policy Development and Administration (1994) (MAB–MIAC); Legal Practice Briefing No. 24—Devolution of Power within Government (1996), issued by the Australian Government Solicitor, which examines the nature of powers of delegation and authority, and sets out the relevant principles. This brief also discusses the effects a change of government has on instruments of delegation. Also of interest is Legal Practice Briefing No. 43—After a General Election: Some Legal Issues, which deals with this issue. Legal Practice Briefings can be obtained from the Australian Government Solicitor’s website at: <http://www.ags.gov.au>

35 Australian National Audit office, Administration of Grants, Better Practice Guide, May 2002, p. 23, para. 2.64, <http://www.anao.gov.au>

36 <http://www.finance.gov.au>

37 See Chapter 6 of the Cabinet Handbook, 5th edn, March 2004, <http://www.pmc.gov.au/guidelines/index.cfm>

38 <http://www.pmc.gov.au/guidelines/index.cfm>

39 Management Advisory Committee, Connecting Government: Whole of Government Responses to Australia’s Priority Challenges, Chapter 2, ‘Structures and Processes’, pp. 19–43, Commonwealth of Australia, Canberra, 2004.

40 Broad good practice guidance is available from the Connected Government website at: <www.apsc.gov.au/connectedgovernment>

41 National Archives of Australia, E-permanence: The New Standard in Recordkeeping for Training for Commonwealth Record-keepers, National Archives of Australia, Canberra, 2000.

42 M.J. Palmer, Inquiry into the Circumstances of the Immigration Detention of Cornelia Rau: Report, July 2005, p. xxiv, <http://www.minister.immi.gov.au>

43 The National Archives of Australia has provided advice for all APS employees on good record keeping. This is available at: <http://www.naa.gov.au>

44 See Australian National Audit office, Recordkeeping, (Assurance and Control Assessment Audit), Audit Report No. 45, May 2002, <http://www.anao.gov.au>; Recordkeeping in Large Commonwealth Organisations, (Business Support Process Audit), Audit Report No. 7, September 2003, <http://www.anao.gov.au>

45 Australian National Audit office, Magnetic Resonance Imaging Services—Effectiveness and Probity of the Policy Development Processes and Implementation, Performance Audit Report No. 42, May 2000, <http://www.anao.gov.au>

46 Government Guidelines for Official Witnesses before Parliamentary Committees and Related Matters (November 1989) is available on the Department of the Prime Minister and Cabinet’s website at:<http://www.pmc.gov.au/guidelines/index.cfm>

47 Government Guidelines for Official Witnesses before Parliamentary Committees and Related Matters (November 1989) is available on the Department of the Prime Minister and Cabinet’s website at: <http://www.pmc.gov.au/guidelines/index.cfm>

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