I would like to focus on the perennial challenge for the Australian Public Service, the balancing of our responsibility to be responsive, with our responsibilities to be apolitical, impartial and professional.
There was bipartisan consensus in the 1970s and 1980s that the Service was too independent and not as responsive to the elected Government as it ought to be. I doubt there are many today, however, who would argue that the Public Service needs to shift the balance further towards responsiveness. The serious questions today concern our professionalism and our impartiality, and whether our obligation to be responsive has caused some of us sometimes to be too concerned to please.
What were the lessons for the Public Service from Children Overboard? Much has been said about poor record-keeping, unclear lines of accountability, the role of ministerial advisers, passing on information without adequate caveats about its authority, and failure to correct inaccurate advice. I remain uneasy also about public servants trying to hide their legal responsibility and to refuse to hear requests for asylum they would have had to consider; and about senior public servants and military officers continuing to maintain in Parliament the possibility that children were thrown overboard many weeks after Air Vice Marshall Houston’s advice was given and known to have been given.
Now I know from bitter experience the way hindsight can highlight mistakes with no appreciation of the circumstances and the real choices faced at the time. But my concern is to ensure we do really learn the lessons from such experiences including giving more emphasis to our obligations of professionalism, impartiality, being apolitical and complying at all times with the law: the obligations that imply a degree of independence notwithstanding our need to be responsive.
Much has been said about ‘frank and fearless advice’. I have rarely found it particularly challenging to offer policy advice that was not welcome. Where courage was needed was when advising on due process, on releasing documents under FOI, on making corrections in the Parliament, on tender processes, on publishing performance data in the Annual Report, on giving an individual or organization opposed to the Government fair treatment, and not giving favoured treatment to advisers seeking jobs in the department.
The elected Government certainly has the authority to determine the public interest when it comes to matters of policy. But the Public Service does have particular responsibility for the public interest in ensuring due process: fair treatment of those affected by government decisions, transparency of decision-making, careful and diligent management of programs, complying at all times with the law.
Let me highlight one area that has been causing me increasing concern in recent years. It relates to communications and to freedom of information (FOI). Communications are at the heart of politics, and the enormous increase in the power of the media has required a sophisticated response by politicians and particularly by those in government. This includes careful control to ensure consistency and to influence the agenda, as well as to present the government and the key politicians in the best possible light. The media in turn has become more cynical and more determined to find the information that might challenge the official position, and to sensationalise it. We have a spiral, and the Public Service has had its links with the media and the public subject to much closer control.
It is hard to deny the right of the elected Government to issue instructions about communications by public servants. And public servants are rightly prohibited from leaking confidential information which, apart from any specific security concern, does untold damage to the trust of ministers in the Public Service.
But let me raise some examples to illustrate my unease. There is widespread concern in Government and the senior echelons of the Service that FOI has so widened access to information that counter-measures are needed. Fewer file notes, diaries destroyed regularly, documents given security classifications at higher levels than are strictly required and handled to minimize the chances of FOI access. Most senior public servants recognise that these counter-measures must not hide the decision-making trail, but the trail that is left is often now just a skeleton without any sign of the flesh and blood of the real process, and even the skeleton is only visible to those with a need to know.
Now what is being protected here? The public interest, or the partisan interest of the government of the day? Maybe the liberal interpretation of FOI legislation by the courts has undervalued the public interest in allowing the Government to deliberate on issues without constant public glare that tends to help special interests. But there must be strong suspicion that partisan interests are often the main consideration, and public servants desiring to be responsive may be encouraged to give more weight to the concerns of ministers than to the public interest and the implicit and explicit requirements of administrative law.
The FOI Act requires that the Australian community have the right, as far as possible, to access information held by the government, and that any discretions conferred by the Act are to be exercised as far as possible to facilitate and promote, promptly and at the lowest reasonable cost, the disclosure of information. Is that really our approach?
My impression is that departments are not only publishing less policy research, but are also conducting less. Some of the slack is being picked up by specialist agencies. But the Public Service has a substantial share of the nation’s expertise in many fields, and exposing that expertise in public forums is important for the public and also for fostering that expertise into the future by allowing our work to be externally tested.
There is also a tendency to require all contacts with the media to be managed through the minister’s office. But there are many circumstances where the public interest would be better served by direct access to officials. For example, in crises where the public expects to hear from the professional experts, such as the Chief Medical Officer.
It is also good practice for officials to publicly give reasons for a sensitive decision. The value of open accountability is explicit within the system of ministerial responsibility, but it is best met in these sorts of cases by direct communication by the public service with the public. Apart from anything else, it tends to place the emphasis back onto due process, the requirements of procedural fairness and the specific provisions of program legislation.
Returning to Children Overboard, I wonder if the problems were exacerbated, rather than contained, by the severe constraints on the Navy officers from speaking publicly about operational matters. An inaccurate statement by an official can be corrected by that official without much fanfare if done promptly. Statements by Ministers are far harder to correct, particularly during an election.
These things are difficult. But if it is really true that the FOI Act is undermining public interest in particular situations, then let’s see the Parliament debate the matter and amend the legislation we are bound by. It would be nice to think the media could also be more responsible in its approach.
This article is based on his farewell speech, 30 June 2005.