Compiling the hit list – and then?

With the polls remaining seemingly immovably against John Howard, it probably isn’t surprising that some left-leaning bloggers already have their hatchets out.  Howard sacked 6 department heads after his 1996 election victory, and if bloggers have their way Kevie will be sacking quite a few more.

Kimberella over at LP in Exile, for example, advocates a wholesale spill of the ABC Board.   Can’t see that happening somehow.  Certainly Rudd has promised to introduce a marginally more independent, transparent appointment process than the current one, with an “independent selection panel to undertake a proper shortlist selection process” after which the Minister is to be required to table a statement of reasons in Parliament if he/she selects someone not on the short list.  It doesn’t sound too bad a balance between openness and ministerial reponsible government, but of course it depends on just how independent that “independent selection panel” really ends up being.

In any event, the process should get a workout fairly early in a Rudd Labor government’s term.  Board member John Gallagher QC’s term expires 23 February 2008 and Dr Ron Brunton’s on 1 May 2008. Sadly for Labor, however, all other Board members were appointed or reappointed in the last year or two for 5 year terms, including uber culture warriors Janet Albrechtsen and Keith Windschuttle.

Of course, the more interesting developments will be with departmental heads.  I’d be surprised, for instance, if Workplace Authority boss Barbara Bennett (the propaganda face of Work Choices) hasn’t been hitting the phones intensively in recent days listing herself with every executive recruitment agency in the land.

Blogger “Roger Migently” reckons Labor should sack Australian Federal Police Commissioner Mick Keelty1, and somewhat more idiosyncratically also has Department of Immigration Deputy Secretary Bob Correll in his shotgun sights (presumably because he’s the bloke who signed the departmental correspondence that threatened “Roger” with dire legal consequences for daring to exercise his basic democratic rights and criticise what must surely be Australia’s most thuggishly inept government agency).

It’s all moderately amusing in a self-indulgently vindictive, schadenfreude sort of way.  Readers might even want to enter their own comment box nominations for the post-election hit list.

However, there are more fundamental issues involved.  

Serious-minded political observers wouldn’t even be talking in these terms if it wasn’t for the progressive politicisation of the public sector over the last 25 years, starting with the Hawke government’s introduction of the Senior Executive Service back in 1984.  According to this NZ government review, at least 1770 Commonwealth public servants are on SES contracts (and that was 7 years ago).  Certainly every single departmental head is employed on a contract basis, 50% of them with terms of only 3 years.  That, together with a “performance” based bonus system worth up to $60,000 per year (judged and awarded by the Prime Minister personally), ensures that the days of fearlessly impartial, independent advice are no more than a dim memory.

Arguably this progressive politicisation of the public service is a central element in the evident deterioration in public and political morality in today’s Australia.  A supine, compliant public service has allowed phenomena like Haneef, Children Overboard, AWB, and the Rau, Solon and now Tran cases (not to mention some 200 other instances of illegal detention by the Department of Immigration, according to the Commonwealth Ombudsman) to occur.

Sadly, however, neither Labor nor any of the minor parties have chosen to make public sector reform an issue in the current election campaign.  Moreover, with his background as Wayne Goss’s principal public sector enforcer in Queensland (Labor’s answer to Max “The Axe” Moore-Wilton), it seems unlikely that any such project will be high on PM Rudd’s first term agenda.

Nevertheless, it’s an important issue worth exploring at some length.  Accordingly, here’s a link to an extended 7:30 Report interview with recently retired federal Public Service Commissioner Andrew Podger, in which he canvases at length the shortcomings of the modern politicised public service under John Howard.    And here’s a substantial extract from a paper written by Podger only a few months ago, in which he discusses his own experiences and lays out his ideas for reform.  It’s fairly long but well worth reading.  It’s a careful, restrained critique by a lifelong career public servant who served at the top level under the Hawke, Keating and Howard governments, but clearly evidences a profound unease with the fundamental direction of the public sector in Australia:

Ministers’ interest in the process [of annual performance appraisal for departmental secretaries] varied.  Some were very interested and keen to discuss matters in some detail with Moore-Wilton or Shergold and myself.  Others were less interested, seeing the process as a chore, but nonetheless necessary in order to do the right thing by their secretaries.  Several were quite incisive about strengths and weaknesses of their secretaries, while others could not distinguish between their own political aspirations and the duties of a secretary.  One or two appeared a little intimidated, particularly by Moore-Wilton.

Prime Minister Howard always took the process very seriously.  He had read the reports closely before we met him, and he discussed each secretary’s report in turn, passing over more quickly those reports with which he agreed entirely.  On others, he would test our comments and seek clarification of ministers’ views.  I recall vividly his response when I remarked that not giving a particular secretary a bonus one year would send him a serious message.  He said quite firmly that this is precisely what the system was about: if the prime minister’s decision doesn’t send a message, there is no point having the performance assessment system.

It was evident that the criterion concerning responsiveness to the government dominated in the final assessment, but it was also clear that the Prime Minister considered all aspects of our reports on secretaries.  On one occasion, the prime minister deferred a decision on a secretary until he had considered more carefully a comment I had made.  He rang me subsequently to tell me the decision he had taken.

Each year most secretaries received the 10% bonus, with a small number receiving 15% and a smaller number receiving none.

Notwithstanding efforts to strengthen the process, and notwithstanding the need for secretaries to receive feedback from ministers and the prime minister on their performance, there are legitimate concerns about providing performance pay to secretaries.  My experience as both assessee and adviser to the assessor is that a single measure of performance translated into a bonus will inevitably focus primarily on responsiveness to the government, and be coloured by immediate, media-fuelled issues at the expense of possibly more important factors such as building organisational capacity and developing and implementing reforms of longer term public interest.

My advice was, and remains, that performance pay for secretaries should be abolished; in fact, however, it has been strengthened, with the maximum bonus increased to 20% (around $60,000) of total remuneration.

Concluding remarks

The Australian approach to appointing secretaries and maintaining their performance has always allowed considerable discretion to the prime minister.  In practice, merit has dominated and the vast majority of secretaries have been and are career public servants with proven performance in policy-advising and/or program management.  But equally, in every era since Federation in 1901, there have been some whose political alignment undoubtedly constributed to their appointment and progress.

Balancing the values of responsiveness and apolitical professionalism is a perennial issue in public administration, and there is no golden era where the balance was evidently right.  There has always been debate about excessive responsiveness or politicisation, or excessive independence or lack of accountability.

The shift in the last 25 years has been substantial, however, steadily increasing political oversight and expectations of responsiveness by the bureaucracy to the elected government.  Apart from the changes to secretary arrangements outlined in this article, there has been the steadily increasing role of ministerial advisers who are not bound by APS Values  of being apolitical and impartial, and are not accountable to Parliament; in addition, government communications have become more and more closely managed politically, impacting on the independence of the public service.

In some respects this shift was overdue, the balance before the 1970s having arguably favoured the independence of the public service at the expense of the democratic requirement of responsiveness to the elected government and, through ministers, accountability to the Parliament and the public2.  Moreover, the increasing pervasiveness and power of the media has required a professional response from the politicians that inevitably involved attempts to gain closer political control of the bureaucracy.

The question now, however, is whether the balance has shifted too far towards responsiveness and away from apolitical professionalism and its focus on the long-term public interest.

Dr Shergold has defended the current APS against criticism of politicisation, stating, for example, that courage to provide frank and fearless advice is a ‘question of character not of contract’.  That is too simplistic for me.  In his book on the mandarins, Patrick Weller notes that many of the secretaries he interviewed felt that the loss of tenure may have affected the advice some secretaries provided, but not in their own case.  That is disingenuous in my view.

As Prime Minister John Howard told me, if the (performance pay) system did not send messages, then there was no point in the system.  Likewise, no doubt, the system of contracts has impacted on secretary behaviour.  All secretaries are affected, and they are being dishonest of folling themselves if they deny it.  They will hedge their bets on occasions, limit the number of issues on which to take a strong stand, be less strident, constrain public comments, limit or craft more carefully public documents and accept a muddying of their role and that of political advisers.  To some extent, there has always been an incentive to please; and public servants have a tradition of caution and anonymity, relating to their role to protect the public interest and to defer to politicians particularly in the public arena.  But the political messages to secretaries today are more explicit, and secretaries are, I believe, more cautious in avoiding disputes with ministers and in ensuring any public image of themselves is aligned with the government’s position.  This is not to suggest a significant lack of courage, but to acknowledge the reality of the incentive framework that has purposely been put into place.

The notion of responsiveness is itself complex.  To whom was I expected to be responsive – the minister or the prime minister?  In law, the minister is the boss – secretaries are responsible to them and they to the Parliament.  But the prime minister has always had the power to appoint secretaries, so in the end secretaries are also beholden to the prime minister. The developments of the last 25 years have added to the power and authority of the prime minister.  And, importantly, the prime minister is advised by the head of his department, and all secretaries are mindful of the authority of the Secretary of PM&C.  (By contrast, in the past, central administrative authority was shared by the secretaries of PM&C and Treasury, together with the Chairman of the Public Service Board.)  …

So what is my view of the system that has emerged in the APS?  I support the right of the prime minister, as head of the government, to appoint departmental secretaries, and to take into account their perceived capacity to serve the government and the relevant minister.  I believe, however, we can no longer rely so heavily on convention to ensure merit dominates and apolitical career public servants are most commonly appointed.  The statutory requirement for a report from the Secretary of PM&C is not sufficient, particularly if that person is himself politically aligned3.  My strong preference is to require a report from the Public Service Commissioner as well.4

On contracts, notwithstanding my unease at the time they were introduced, I accept Dr Keating’s arguments.  This is not only a pragmatic acceptance that tenure disappeared a decade earlier and that reintroduction of permanency will never be supported politically, but a broader acceptance that in the modern world the level of employment security previously enjoyed by senior public servants is simply not viable or justified.  Permanency can be an obstacle to change and to organisational agility.  But the risk of excessive responsiveness, or ‘politicisation’, does need to be addressed primarily through a return to five year contracts as the norm, and the expectation that satisfactory performance, professionally assessed, will lead to new or extended appointments, encouraging maintenance of a largely career public sevice including at the very top.  Similarly, early termination of contracts should only follow reports and advice by the PSC and Secretary of PM&C, and should not occur with a change of government without consideration of such reports (at the very least, this might ensure a reasonable period post-election during which ability to work with the new government and new minister can be properly tested).

I would also prefer to see performance pay for secretaries disappear.  A feedback process is warranted, but there are too many problems involved in ensuring that a single rating, backed by a bonus payment, reflects more than the degree to which a secretary supports the minister and whole-of-government priorities.  …

  1. In fact, the AFP Commissioner can only be sacked by the Governor-General for “misbehaviour or physical or mental incapacity” and a couple of other specified circumstances that clearly don’t apply – see s22 Australian Federal Police Act 1979 (Cth) ~ KP []
  2. a phenomenon satirised and, at least in Podger’s view, exaggerated in the British TV series Yes Minister ~ KP []
  3. Podger goes on to recount former PM&C Secretary Max “The Axe” Moore-Wilton’s enthusiastic attendance at John Howard’s victory party on election night 2001 ~ KP []
  4. In his AJPA article on the Children Overboard case (‘In the wake of “A Certain Maritime Incident”: Ministers, Advisers and Departments’ AJPA, Vol. 62, Issue 3), Dr Keating argued in favour of a committee of senior secretaries and one or two external people to advise on appontments and terminations.  My view is that the key person who should be involved, in addition to the Secretary of PM&C, is the PSC who should be regarded as the professional head of the APS.  I would not object, however, to also involving the Secretary to the Treasury or some other senior secretary ~ Podger endnote []

About Ken Parish

Ken Parish is a legal academic, with research areas in public law (constitutional and administrative law), civil procedure and teaching & learning theory and practice. He has been a legal academic for almost 20 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in the early 1990s.
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Ingolf Eide
Ingolf Eide(@ingolf)
14 years ago

Great post, Ken. Thanks. Let’s hope there are sufficient sane souls about (like Podger) to start the slow trek back towards something a little more balanced.

Geoff Honnor
Geoff Honnor
14 years ago

I hope that an incoming Rudd government does launch a 9 Thermidor and places those responsible for the ABC show, “The Librarians,” in the first tumbril. After that, I suspect that a cavalcade of Departmental Heads will follow them. Eleven years is a long time to wait and there’s a host of state bureaucrats, academics and place-seekers hanging out. I anticipate that reform will follow, fitfully, sometime later…………………………..

wilful
wilful
14 years ago

The New Zealand model provides a stark contrast: all senior appointments are made by an independent Board/Commission.

http://www.ssc.govt.nz/display/document.asp?navid=258

cs
cs
14 years ago

There are many interesting issues here. In general, I expect the new PM, should we be so lucky, will tread cautiously in the lopping heads dept. The service will actually be something v. interesting to study. The Howard government came in with an immediate agenda for inspiring fear, loathing and intimidation throughout the ranks. If the ALP treated the APS courteously, they could all suddenly need counselling. The argument for pure discretion is strongest the more central the agency, which logically means the position automatically at most immediate risk is Dr Shergold.

I might come back to this post, but as a quick hit, this is a falacious proposition:

In practice, merit has dominated and the vast majority of secretaries have been and are career public servants with proven performance in policy-advising and/or program management.

The truth is that merit applies up to a point, and there will be exceptions, but in the real world, there is no unambiguous test of merit at the senior executive level. Yes, there is an apprenticeship up to that level, and there are specialisms and niche executive markets. Broadly, however, at this level, everyone can do the job, bar splitting hairs. Appointments are something like 99 per cent discretionary – comparable, say, with trying to work out whether Stephen Larkham was better than Mark Ella. To assess the degree of politicisation, the polarity to be tested is not merit versus capable of doing the job, as Podger implies; but merit with the correct politics or merit per se.

Philly
Philly
14 years ago

Kim at LP has always exhibited strong totalitarian, anti-democratic tendencies. A frustrated middle-manager is my diagnosis.

Niall
14 years ago

Don’t really care, to be honest. When the ideology changes, so do the fatcats. Some by choice but most by force. As long as Labor does the right thing with their inevitable razor gang in saving the public purse from 12 years of conservative squandering, I’ll be pleased. The only person I really want ousted is Andrew Laming.

David Rubie
David Rubie
14 years ago

I don’t care too much about the ABC board, but surely the heads of DFAT and ASIO and (perhaps) the insultingly stupid plodders plod Mick Keelty need to be chopped. After AWB, kiddies overboard, missing WMD’s and the outsourcing of justice to foreign countries, it’s time to clean house.

Let Windschuttle and Albrechtson stay where they are. Much easier to keep an eye on them if they are close by.

Liam
Liam
14 years ago

Well spoken Geoff Honnor.
blockquote>Readers might even want to enter their own comment box nominations for the post-election hit list.
‘Ken oath I want to, though I’m still doubtful about the result that would produce the correct post-election. I await (eventually) the Red Army 1930s style-purge of the immigration chunk of DIC, from the highest level public servant right down to the dodgy ‘migration agents’ promising the world for a percentage fee. Mind you that’s a purge that’s been coming since the early 1980s, and long overdue ever since Andrew Theophanous went to prison.
Let the order of the day be, after this election or the next one or the next one: All Immigrationists Are Wreckers.

Shaun
14 years ago

In fact, the AFP Commissioner can only be sacked by the Governor-General for misbehaviour or physical or mental incapacity

Surely after the Haneef incident a case can be made for at two of the above criteria.

Shaun
14 years ago

Bugger. Above should read “at least two of the above criteria.”

Australian Atheist
14 years ago

Shergold’s response to Andrew Podger’s paper.

Nicholas Gruen
Admin
Nicholas Gruen(@nicholas-gruen)
14 years ago

It was a proud boast of the ALP that when it came to power it did not sack any departmental heads – and it had at least one doozy – John Stone. John Howard sacking six heads just showed how he cherry picks as the politician who told us he was the most conservative Liberal leader around. An outrage that someone calling themselves a conservative should have done that.

I would hope (and expect) that Rudd will follow the precedent set by Hawke.

trackback

[…] Troppo linked to an interview with him and it was nice to see that he was ageing nearly as gracefully as I am, […]

Bring Back CL's blog
Bring Back CL's blog
14 years ago

err fellahs and Gals He has already said there will be no wholesale sackings and even expects Shergold to be head of his Department.

Keep up the the game

Gummo Trotsky
14 years ago

Readers might even want to enter their own comment box nominations for the post-election hit list.

As Liam said, Ken Oath!

Let’s start with the architecture faculties – close ’em all down!

Geoff Robinson
14 years ago

Shergold, there’s a tale of intellectual and other decline from the author of:

http://www.amazon.ca/Working-Class-Life-Peter-Shergold/dp/0822938022

to the present that should be told one day

Mark Cully
Mark Cully
14 years ago

Penny Wong has gone on record at an Institute of Public Administration Australian event in Canberra in August saying no night of the long knives, five year appointments for agency heads and abolition of performance pay.

Doug
Doug
14 years ago

I espect the changes will not be direct – but some will arise from changes in administrative orders where a few secretaries might decide not to accept an offer of a move.

Rudd on Laeline recently got rather passionate about the APS and I am hopeful that we may get some improvement – though probably less than is desirable.

I also suspect that a couple of Secretaries might retire gracefully on their own initiative – Dr Boxall from DEWR comes to mind

Hamster
14 years ago

Surely Barbera Bennet (aka Betty Bollocks/Princess Fiona) has to go. She has made a very public mockery of the principle of public service independence and impartiality. This, coupled with her blatant dishonesty and bloody-mindedness makes her a prime candidate for unfair dismissal. (Oh, the humanity!)

Fortunately for Miss Betty, she will be able to rely on the Abbot remedy. No doubt there is a new job waiting for her in some employers’ chamber, right-wing think tank, or gulag.

derrida derider
derrida derider
14 years ago

Hamster, you’re wrong you know. The likes of Ms Bennet are careerists, willing to do what it takes to get in their masters’ good graces; they’ll be just as useful to Rudd so he’ll keep them. If Ms Bennet stays in her job you can expect her to be praising the wonders of enterprise bargaining in the near future.

I actually have more respect for the minority of senior public servants who are genuine believers in Howard’s way, though of course they gotta go. I expect that some will do the right thing and resign anyway.

Graham Bell
Graham Bell
14 years ago

Ken Parish:
It would be nice if the cleaners went right through the upper echelon of Veterans’ Affairs …. for the destructive effect they have had on recruiting for, and retention in, the Australian Defence Force. For the unwitting assistance they have given to Australia’s enemies by damaging the morale of the ADF. For the injustices they have committed against war veterans and their families..

It will never happen though. Trendy Lefties, despite all their yelling about social justice and all that, will never give up their prized bete-noir: blood-thirsty atrocity-committing sub-human diggers.

Nicholas Gruen [12]:
John Stone was successfully cloned …. or, looking at the dismal performance of so many pretend senior public servants, should that be …. clowned?

Liam [8]:
Be careful. A Rudd government might emulate the stupidity of Howard goverment’s PRO-terrorism laws …. and outlaw any critism of that sacred cow: Migration Agents. After all, if Migration Agents were abolished – your curtains would fade, pigs would fly backwards, your chooks would stop laying and you would have seven years bad luck …. true.

Mark
9 years ago

I don’t care too much about the ABC board, but surely the heads of DFAT and ASIO and (perhaps) the insultingly stupid plodders plod Mick Keelty need to be chopped. After AWB, kiddies overboard, missing WMD’s and the outsourcing of justice to foreign countries, it’s time to clean house.

Let Windschuttle and Albrechtson stay where they are. Much easier to keep an eye on them if they are close by.