…one of the first challenges of the Rudd Labor Government is to restore the public’s trust in the integrity of government and of its administration. A key part of that is re-establishing a relationship between the public service and the Government which is underpinned by a comprehensive framework of ethics, professionalism and transparency.
Senator the Hon John Faulkner, Special Minister of State, 28 March 2008

Setting the agenda

Government’s expectations of APS

On 30 April 2008, the Prime Minister set out the seven elements of the Government’s vision for the future Australian Public Service:

1. Reinvigorating the Westminster tradition of an independent public service with merit-based selection processes and continuity of employment when governments change
2. Building a professional public service committed to excellence
3. Developing evidence-based policy making processes as part of a robust culture of policy contestability
4. Enhancing the strategic policy capability of the public service
5. Strengthening the integrity and accountability of government
6. Broadening participation in government through inclusive policy processes
7. A contemporary view of government service delivery that emphasises both efficiency and effectiveness in outcomes.

About this document

This document focuses on the first and fifth elements of this reform agenda, namely:

1. Reinvigorating the Westminster tradition of an independent public service with merit- based selection processes and continuity of employment when governments change

5. Strengthening the integrity and accountability of government.

Other issues will be the focus of forthcoming booklets, including an expanded discussion of some elements of ethical decision making, such as:

• conflicts of interest
• appropriate handling of privacy issues
• communicating in a modern and diverse media environment
• public interest disclosures/whistleblowing
• freedom of information.

Public servants will not give frank and fearless advice if they think their career prospects or the continuity of their employment rest on them simply echoing a Government’s own prejudices. Westminster, by and large, has served our system of government well – and the time has come to rebuild the Westminster tradition in Australia.
The Hon Kevin Rudd, MP, Prime Minister, 30 April 2008

Reinvigorating the Westminster tradition

The tenets of a Westminster system require:

• public servants to be committed to the provision of a high standard of independent, evidence-based advice to Government and to the efficient, effective and ethical implementation of Government decisions
• public servants to avoid making any statement or action that could lead to perceptions that standards of advice or implementation are affected by political factors
• levels of mutual respect between public servants and the Government, and between public servants themselves, that permit a free flow of ideas and information without fear of reprisal and that also accept the ultimate responsibilities of ministers and managers to make decisions
• a career structure for public servants that is independent from political and other forms of patronage and that is based on merit
• stakeholder confidence that decisions by public servants are not affected by their personal, financial, political or other interests or those of their relatives or friends.

Action to reinforce the tenets of integrity and accountability

Standards of Ministerial Ethics

• New Standards of Ministerial Ethics implemented in late 2007.

Lobbyists’ Register and Lobbying Code of Conduct

• Lobbyists’ register for third parties engaged to lobby on an organisation’s or individual’s behalf, effective 1 July 2008.
• Lobbying code of conduct was released on 13 May 2008.
  Former senior public servants are unable to take up lobbying positions related to their former employment for 12 months.
  Circular No 2008/4 sets out the requirements relating to the lobbying code and post separation contact with Government.

Code of Conduct for Ministerial Staff

• Code of conduct for ministerial staff introduced, with effect from 1 July 2008 that makes it clear that staff:
  • do not have the power to direct APS employees in their own right
  • are not to make executive decisions (that should be made by their minister or departmental staff)
  • are to facilitate communication between the minister and his/her agency
  • in their dealings with public servants and others, are to exhibit courtesy and respect.

Circular No 2008/7 provides information on the code of conduct for ministerial staff.

Members of Parliament (Staff) annual report

• Inaugural Members of Parliament (Staff) Act 1984 Annual Report 2007-08 tabled 23 December 2008.

Freedom of Information reforms

• Commitment to transparency and open government through improved Freedom of Information (FOI) legislation.
  Bill to remove the power to issue conclusive certificates in FOI Act introduced into Parliament on 26 November 2008.
  Exposure draft of FOI reform legislation released for public consultation on 24 March 2009. Legislation to be tabled later that year.

Electoral reform

• Commitment to strengthening the integrity of Australia’s electoral system.
  Electoral Reform Green Paper—Donations, Funding and Expenditure released on 17 December 2008 for public comment.

Merit based selection for agency heads and statutory office holders

• Policy that appointments of agency heads (including portfolio secretaries) will be for fixed five-year terms (unless a shorter term is requested by the appointee).
• Merit based appointments for agency heads (other than portfolio secretaries) and fulltime statutory office holders:
  • positions advertised and selection processes overseen by the relevant portfolio Secretary and the Public Service Commissioner.

Guidelines for government campaign advertising

• Guidelines establish the framework for the conduct of publicly funded advertising and information activities where expenditure exceeds $250,000.
• Requires agency head sign off that the campaign complies with guidelines and independent review by ANAO.
• First report in series of biannual reports on government campaign advertising expenditures for government department and agencies released on 30 March 2009.

Involvement of public servants in public information and awareness initiatives

• Circular No 2007/5 provides APS-wide policy guidelines on the involvement of public servants in these initiatives.

Public interest disclosure arrangements and protection

• Recognition that public interest disclosure is legitimate in a democracy. Commitment to expand and upgrade public interest disclosure arrangements and enhance protection for whistleblowers.
• Public interest disclosure legislation to be developed during 2009 in response to the House of Representatives report, tabled in February 2009. Legislation to be introduced in this parliamentary term.

Ethics Advisory Service

• Public Service Commissioner to establish an advisory service to enhance ethical awareness and decision making capabilities throughout the APS; operational from May 2009.

Ethical leaders … have to be, and not merely seen to be, accepting ownership of the reality of the complexity of making ethical choices. [They] can answer the question “What ought one to do?” with the courage to do so, even in the face of uncertainty.
Dr Simon Longstaff, Executive Director, St James Ethics Centre, 4 September 2003

Ethical leadership in the APS reinforces the Westminster tradition

Agency heads and SES employees

Ethical leadership in the APS

Leaders provide vision and strategic direction, they encourage, motivate and inspire others, and vitally, they model their organisation’s values and set the pattern of how things are done. At the crucial interface where the inertial momentum of institutions meets overarching principles, leaders recognise the moment of choice—and choose right. (Senator the Hon John Faulkner, 16 July 2008)

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

The Public Service Act 1999 requirements

The Public Service Act 1999 places substantial responsibilities on agency heads and SES employees in their roles as leaders: s. 12 An Agency Head must uphold and promote the APS Values. s. 35 (2) The function of the SES is to provide a group of APS employees each of whom … (c) by personal example and other appropriate means, promotes the APS Values and compliance with the Code of Conduct.

Requirements of APS employees under the Public Service Act 1999

Relevant Values (s. 10)(1)

(a) the APS is apolitical, performing its functions in an impartial and professional manner

(e) the APS is openly accountable for its actions, within the framework of Ministerial responsibility to the Government, the Parliament and the Australian public

(f) the APS is responsive to the Government in providing frank, honest, comprehensive, accurate and timely advice and in implementing the Government’s policies and programs

(n) the APS is a career-based service to enhance the effectiveness and cohesion of Australia’s democratic system of government.

Relevant Code of Conduct elements (s. 13)

(1) An APS employee must behave honestly and with integrity in the course of APS employment

(2) An APS employee must act with care and diligence in the course of APS employment

(6) An APS employee must maintain appropriate confidentiality about dealings that the employee has with any Minister or Minister’s member of staff

(11) An APS employee must at all times behave in a way that upholds the APS Values and the integrity and good reputation of the APS.

Balancing the APS Values in practice

Values

10 (1) (a) the APS is apolitical, performing its functions in an impartial and professional manner

Being apolitical does not mean being ‘independent’: it means providing advice that is not influenced by party political considerations, or not acceding to requests from a Minister’s office that would involve engaging in party political activities. An apolitical APS is one whose staffing is free from political interference and that performs its functions in an impartial and professionally detached manner, unaffected by individual employees’ political allegiances.

10 (1) (f) the APS is responsive to the Government in providing frank, honest, comprehensive, accurate and timely advice and in implementing the Government’s policies and programs

Advice should be well argued, evidence- based and innovative, anticipate issues and appreciate the underlying intent of government policy. Responsive advice is also forthright and direct and does not withhold or gloss over important known facts or ‘bad news’. Government decisions are implemented efficiently, effectively and ethically.

In Practice

Situation

The Australian Government has committed to a new programme. The Minister is keen to fund eligible projects as quickly as possible. The programme is a joint Commonwealth-State initiative. State A is due to go to the polls in three months. The current State government’s policies align with the new programme, and preliminary work had been done on scoping and costing projects.

There are two projects in State A that meet the programme criteria to a high level and for which funding could flow quickly. One is in a marginal seat held by a member of the Minister’s party; the other is in a seat held by an independent member with a strong following. Both MPs have put their weight behind the projects. The Minister’s office has indicated the Minister’s strong desire to fund the project in the electorate of his party member.

Response

The Commonwealth department prepares ministerial briefing that objectively weighs up the merits of both projects. The advice factually sets out the requirements of the policy objectives and programme guidelines and the implications of being perceived to depart from them. The advice includes options canvassing the funding of one, or both, projects and sets out the pros and cons of the options. The recommendation is to fund both projects.

The Minister’s office requests an amended briefing, providing more detail about the merits of both projects. The department confirms that this request has been made on behalf of the Minister. The department then prepares a supplementary briefing providing the additional information requested, but does not amend the original briefing. The recommendation stands to fund both projects.

See the REFLECT model for hints on reaching sound decisions, through exercising good judgement and practising reflection

The principles of apoliticism, impartiality, professionalism, responsiveness and accountability are at the heart of strong, productive relationships between the APS and the elected government. These Values need to be considered together as a set. Most of the time they complement each other. At times, they need to be balanced so that no single Value is pressed to the point that it conflicts directly with another.
APS Values and Code of Conduct in practice

Values

10 (1) (e) the APS is openly accountable for its actions, within the framework of Ministerial responsibility to the Government, the Parliament and the Australian public

Accountability is one of the foundation values of the APS, helping to define its role as a key institution in Australia’s democratic system. Under the Financial Management and Accountability Act 1997 agency heads and their delegates are required to make efficient, effective and ethical use of Commonwealth resources (i.e. public money and public property).

In Practice

Situation

The Minister decides to fund both projects. In the meantime, State A’s election period has commenced. The Minister’s office asks the department to draft a media release that promotes the marginal MP’s support for the project in his electorate, but asks that the independent member’s support for the other project not be highlighted.

Response

The department discusses the issue with Minister’s office, clarifying the roles and responsibilities of the department and the office.

The department drafts factual material for use in a final media release to be prepared in the Minister’s office. The draft does not allude to either member’s support for the respective projects.

Values

10 (1) (n) the APS is a career- based service to enhance the effectiveness and cohesion of Australia’s democratic system of government

Employment decisions are based on merit, not political allegiance or personal favouritism. An apolitical public service supports the democratic system, through serving the government of the day professionally and impartially and providing continuity when governments change.

In Practice

Situation

The MP in the marginal seat, who is a member of the Minister’s party, loses the election. He is seeking employment in the Australian Public Service (APS). Applications have recently closed for an EL2 position in a State office in which he is interested, but there is a weak field. The delegate decides to readvertise. The former MP applies. The Minister’s office asks the delegate to consider the former MP’s claims to the position favourably.

Response

The delegate advises the Minister’s office that the recruitment process will be conducted in accordance with the legislative guidelines for merit in APS recruitment. The Minister’s office is reminded of s. 19 of the PS Act that places limitations on ministerial direction to an agency head in relation to particular individuals.

The delegate asks the chair to establish a selection panel comprising two members outside the portfolio to ensure process is—and as importantly, is seen to be—fair and not influenced by political bias or personal favouritism.

Leadership is an action-oriented concept, or a way of behaving, and employees at all levels can be leaders through their actions.
Lynelle Briggs, Australian Public Service Commissioner, 16 October 2008

Leading and managing for an ethical culture checklist for action

Organisational checklist

• Release a policy on the agency’s commitment to the APS Values and Code of Conduct and to promoting a culture in which ethical decisions are made and behaviours are observed. The policy should:
  • state that unethical decision making and associated behaviours are potential breaches of the APS Values and Code of Conduct and will not be tolerated
  • set out the responsibilities of the agency head, senior executives, other managers and employees to create a culture that supports ethical decision making and behaviours
  • provide a clear view of, and strategies to promote, appropriate standards of behaviour for employees at all levels
• Ensure all employees have easy access to the agency’s policy on ethical decision making and behaviour (for example on the intranet) and regularly remind employees of their responsibilities
• Integrate expectations of appropriate behaviour and adherence to the APS Values and Code of Conduct into performance management and reviews
• Provide induction and regular refresher training in ethical decision making for all employees, making sure they understand and apply the APS Values and Code of Conduct and can exercise sound judgement
• Set up networks of ethics contact officers to provide points of contact for employees to raise ethical issues and to provide a forum for discussion of ethical issues being raised across the agency
• Provide information on:
  • channels for employees to report or raise concerns or complaints (formal and informal processes and external avenues should be included)
  • where to go for advice and/or support (for example, employee assistance or counselling services, agency contact officers)
  • relevant internal and external review mechanisms.

Leadership behaviour

Senior leaders

Leaders and managers through their own actions must be champions of ethical decision making and behaviour:

• Promoting the APS Values and complying with the Code of Conduct
• Openly discussing ethical dilemmas and how they would resolve them
• Articulating and modelling appropriate behaviour and decision making processes
• Being a source of inspiration and guidance, helping other employees resolve ethical issues
• Rewarding ethical conduct and displaying zero tolerance of inappropriate behaviour.

All employees

All employees should:

• Uphold the APS Vales and comply with the Code of Conduct
• Display personal integrity and drive
• Seek guidance when they have difficulties resolving ethical issues
• Raise concerns when they observe decisions and behaviours that do not appear to conform to ethical standards.

Telling questions

• Am I prepared to have my actions [or decisions] reported on the front page of the newspaper?
• Would I be embarrassed to tell my family or friends what I’ve done?
• If my actions [or decisions] became public, would they embarrass my fellow employees?

(based on Principles of Good Practice Fact Sheet—Codes of Values and Ethics, Institute of Public Administration Queensland)

Commission and other resources

Australian Public Service Commission

APS Values and Code of Conduct in practice: Guide to official conduct for APS employees and Agency Heads (see in particular Section 2)

Circular No 2007/5: Involvement of public servants in public information and awareness initiatives

Circular No 2008/4: Requirements relating to the Lobbying Code of Conduct and post separation contact with Government

Merit and transparency: Merit-based selection of APS agency heads and statutory office holders (2008), available at www.apsc.gov.au/publications08/meritandtransparency.htm

One APS—One SES, available at www.apsc.gov.au/mac/oneaps.htm

Supporting Ministers, Upholding the Values (2006), available at www.apsc.gov.au/publications06/supportingministers.htm

Other resources

Agency management of parliamentary workflow, available at www.anao.gov.au/uploads/documents/200801Contents.htm

Australian Government Lobbyists Register and Lobbying Code of Conduct, available at lobbyists.pmc.gov.au/lobbyistsregister/

Code of Conduct for Ministerial Staff, available at www.smos.gov.au/media/code_of_ conduct.html

Guidelines on Campaign Advertising by Australian Government Departments and Agencies, available at www.finance.gov.au/Advertising/docs/guidelines_on_campaign_advertising.pdf