Attorney-General's Department

2 May 2019

Submission to the Independent Review of

the Australian Public Service

The Attorney-General’s Department (the department) welcomes the priorities for reform identified in the

Review’s Priorities for Change.

This submission will focus on areas in which the department has particular experience or expertise that may

assist the Review. These areas include the department’s experience in developing the Australian Government

Legal Service professional network and the integrity functions of government. The submission also comments

on policy capability, enabling services and the role of the Secretaries Board.

Professionalisation of functions

The department is strongly in favour of improving support for professionals across the APS. The department

will establish the Australian Government Legal Service (AGLS) in late 2019 following the Secretary’s Review of

Commonwealth Legal Services (the Secretary’s Review). The AGLS will build upon the work of the existing

Australian Government Legal Network (AGLN) and its sub-committees. The AGLS will connect over 2,000

Commonwealth government lawyers working in over 90 entities across Australia. It will be an overarching

professional network for government lawyers to support the delivery of high quality, consistent legal services

across the Commonwealth and its entities. It will emphasise the role of government lawyers within the

context of whole-of-government legal obligations.

The objectives of the AGLS would be to:

 support the delivery of high quality consistent and joined up legal services across the Commonwealth
and its entities
 build and promote a professional identity for government lawyers that supports their unique role and
cultivates recognition that, in addition to being employees of their entity, they belong to a professional
cohort
 promote good practice in legal practice management
 facilitate more collegiate and collaborative arrangements across entities, and
 promote awareness of whole of government issues and draw a clear link between an entity’s legal
functions and the broader Commonwealth.

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The AGLS would pursue its objectives by:

 providing a clear framework for the standards and responsibilities expected of government lawyers
 providing professional development and training products
 facilitating information sharing, collaboration and networking opportunities across Commonwealth
entities
 developing information and guidance on legal and practice management issues, including engagement
of external providers, and
 delivering an induction and core training program for government lawyers, building on a set of core
competencies.

In parallel with work on the establishment of the AGLS, the Office of Legal Services Coordination (OLSC) in the

department is progressing three key AGLS initiatives focused on building career pathways, developing

expertise, acquiring new skills, building professional networks, sharing knowledge and developing

foundational competencies for government lawyers.

First, the Pilot Reciprocal Secondment Program will allow government lawyers and lawyers in private practice

to participate in short term reciprocal secondments for a period of 4-6 months. The first phase of this pilot

program commenced in the second half of 2018. The second phase is underway with exchanges expected to

commence in June or July 2019.

Secondly, a volunteer team of General Counsels and OLSC officers are developing a pilot program to provide

consistent, professional, foundational legal training for in-house government lawyers. The training topics are

based on the AGLN’s existing core competencies for Government Law and are designed to provide

comprehensive coverage of key topics which are relevant for government lawyers operating in an in-house

environment.

Thirdly, work is underway in collaboration with the Australian Government Solicitor group of the department

on the development of a Whole of Government Legal Advice Database to support the sharing of legal advice

on key matters of broader relevance to the Commonwealth, as well as other information such as guidance

material and templates. The database will reduce overlap and duplication of legal advice across the

Commonwealth, to improve the management of Commonwealth risk and to promote greater consistency in

Commonwealth entities’ approach to similar legal issues.

The Review identifies professionalised functions across the APS through a ‘professions model’, encompassing
‘delivery, regulation and policy’ as well as key enabling functions. The Review suggests that the Head of

Professions should be the APS Commissioner, with senior officers appointed to head each profession,
supported by the APSC. The department’s work in establishing the AGLS to develop competencies, training

models and career pathways for the professionalisation of government lawyers within the APS could provide

a useful model for other constituent professions.

Professions, such as lawyers, doctors, auditors and accountants, have traditionally had a number of features

that could be integrated into an APS professions model. Two of these features are profession-specific ethical

duties, and professional self-regulation. APS lawyers have both general ethical duties that apply to all lawyers
(such as duties to the court, their client, and to uphold the rule of law), general APS ethical requirements

under the APS Values and Code of Conduct, and additional model litigant obligations imposed by the Legal

Services Directions. Similar ethical obligations apply to other professions. Any professional model should

consider how these ethical obligations should apply to public servants.
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The department suggests that any recommendations relating to the professionalisation of APS roles through

a professions model include government lawyers as a ‘constituent profession’ and take into account the

significant work already underway to professionalise government lawyers, as well as proposed and existing

frameworks. The Secretary’s Review recommended that the AGD Secretary, as the Secretary responsible for

policy-setting on Commonwealth legal services, would set the direction for AGLS, in consultation with entity

heads and General Counsel. This is consistent with the Review’s suggestion that a senior officer be appointed

to head each constituent profession and would develop competencies, standards and career pathways,
separate to his or her role as an agency head. Leadership and expertise is required in setting competencies,
standards and career pathway options within a particular ‘profession’ and the AGD Secretary is well-placed to

oversee the government lawyer profession.

Although consistent approaches to greater professionalisation may be desirable, given the specific and often

technical needs of professions, it is likely that most professions would be best supported by designating a

lead agency for that function with a significant body of workers in the relevant professional field.

Integrity

As the ANZSOG research paper Being a trusted and respected partner: the APS integrity framework makes

clear, integrity and accountability mechanisms are essential to a well-functioning public sector that acts in the

public interest and has the confidence of the Australian public. The department is responsible for whole of

government integrity policy and key frameworks, including in relation to fraud and anti-corruption,
prosecutions, foreign influence transparency, administrative law, constitutional law, human rights, privacy,
freedom of information, access to government records and public interest disclosures. This includes

administration of the Foreign Influence Transparency Scheme (FITS), the Lobbying Code of Conduct and the

Register of Lobbyists. The Attorney-General’s portfolio also includes a number of agencies with integrity

roles, including the Commonwealth Ombudsman, the Inspector-General of Intelligence and Security and the

Australian Commission for Law Enforcement Integrity.

The department takes a systemic approach to integrity and corruption issues in relation to the public sector,
but also more broadly including with respect to the private sector. For optimal effectiveness, integrity and

corruption issues need to be situated in their broader context and this must include both public and private

actors and include actions taken in Australia and offshore.

There is merit in examining further how existing integrity and accountability functions could be better

coordinated and arranged and there may be opportunities to further consolidate integrity functions in the

Attorney-General’s portfolio. Any proposed reform to integrity arrangements requires careful consideration,
particularly in light of the functions of existing bodies and any future anti-corruption agency. For example, the

department does not see merit in the proposal in the ANZSOG paper to transfer the FITS to the APSC. The

FITS regime goes to the integrity of our democratic institutions, having broad implications across nearly all

sectors of the Australian economy and community. The Foreign Influence Transparency Scheme Act 2018 was

introduced to enhance Australia’s security, and there are clear benefits to it being administered by a

department with close ties to national security and integrity matters. This is an example of options that seem

initially attractive that require more holistic consideration.

Finally, definitional uncertainty often clouds work on integrity. Corruption and integrity are amorphous and

broad concepts, which can be challenging to define with consensus. It will be important to ensure there is

clarity and certainty around the kinds of conduct to be investigated by a new anti-corruption agency or

promoted as a broader concept of public sector integrity.
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Policy development

The Review identifies that strengthening the APS’s policy capacity, and the public’s faith in it, is crucial to the

future of the APS. The department has a significant stake in this issue as a major policy agency. The

department has expertise in strategic thinking and problem solving across a wide range of policy areas

affected by Australia’s legal and policy frameworks. As legal policy often deals with frameworks that govern

action, rather than being directed at specific policy outcomes, many of the department’s policy

responsibilities have a whole of government, or whole of community, impact. These frameworks include

administrative law, constitutional law, international law, human rights, protective security, privacy, freedom

of information, criminal law, Australia’s court system and fraud and anti-corruption policy. These frameworks

have integrity elements, such as establishing appropriate principles and boundaries for the use of

government power and frameworks for government-citizen interaction. As a result, to maximise policy

effectiveness, the department must work closely with other government agencies and the private sector to

assist them to meet their needs within appropriate legal frameworks.

The Review notes the importance of developing policy advice that integrates social, economic, security and

international perspectives. The department endorses the need for agencies to develop policy that integrates

the full breadth of strategic inputs. These perspectives should also include ensuring policy and program

design strengthens public trust in government and its institutions, including through robust integrity

measures and a firm commitment to procedural fairness, transparency and the rule of law. Within the

department itself, it has often been necessary to integrate the perspectives identified by the Review in order

to produce optimal policy outcomes in areas of broad impact including national security or human rights. The

department has also frequently used models of collaboration across government, including secondments,
multi-agency purpose-specific taskforces, its legislative scrutiny role and the Cabinet process, to ensure that

policy development across government is integrated.

No radical changes to operating models are required to improve policy development. Nevertheless, the

department would welcome further efforts to ensure holistic policy development from initial planning

through to implementation. These could include greater use of existing collaborative techniques (such as

secondments and multi-agency taskforces), greater mobility of staff across the APS, development of

professional networks of policy specialists to help break down siloed thinking and share expertise, and

enhancements to government policy processes, including the Cabinet process and legislative scrutiny.

Some departments and agencies have scope to develop greater specialist expertise in related disciplines, and

it may make more sense at times for smaller departments to buy in this expertise rather than seeking to

develop and maintain their own in-house capability. The department has had very positive experiences of

using the expertise of the Department of Human Services Design Hub, for example, to test and contribute to

the development of policy. It may similarly be appropriate on particular policy projects for smaller

departments or agencies to occasionally buy in specialist data skills from larger social policy departments.

The department welcomes the Review’s focus on investment in capability and talent development.
The Review notes a perception that the APS’s capability and specialist expertise has diminished over time,
and a need for more empowered people, an APS-wide workforce strategy and integrated policy approaches.
The department’s experience has reinforced the importance of a combination of on-the-job learning, formal

and informal mentoring, and training in building the capability of junior officers in policy development. For

these strategies to be most effective, the APS must invest in providing officers with a career path that

develops them as valued policy officers.

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Policy projects come in a range of different scopes and complexities, ranging from once-in-a-generation

reforms to a sector, which require the full policy process for success, through to regular minor maintenance

of policy, programs or legislation, which often does not require a full policy process, but does require a ready

pool of expertise in existing policy areas in order to be undertaken accurately and expeditiously. There must

be scope to foster a long-term view of policy, to ensure that short-term decision making does not lead to

poor long-term outcomes. For example, within the department, the Office of Constitutional Law has a critical

stewardship role in ensuring the development of constitutional law on a pathway that supports good

governance. Consideration of improvements to APS policy should consider improvements to capability across

the full range of policy projects undertaken by the APS.

In relation to strategic recruitment and staff development, there are also behavioural supports for good

policy development that buttress specific policy skills such as data analytics, critical thinking and evaluation.
For example, openness to new ideas, curiosity, a genuine commitment to inclusiveness and emotional

intelligence enhance the effectiveness of consultation and collaboration. Finally, the department notes that

there must be some consideration of the integrity implications of mobility between the APS and the bodies it

regulates. It is critical to public faith in the APS, and to avoid regulatory capture, that direct movement

between a regulator and the sector it regulates, is carefully scrutinised.

Role of the Secretaries Board

Secretaries Board is an important body for driving whole of government policy across the APS. Given the

department’s experience of administering policy areas with whole of government implications, the

department would welcome the enhanced use of Secretaries Board to consider and mandate outcomes on

policy issues that affect the whole public sector. For example, Secretaries Board is a natural forum for

ensuring buy-in across government for implementation of the Protective Security Policy Framework.

Networked enabling systems and common processes across the APS

The department is supportive of initiatives towards networked and common arrangements for enabling

services, where the enhancement of the efficiency or effectiveness of services can be demonstrated, while

noting that the theoretical efficiencies from mandated common arrangements have not necessarily been

realised in practice.

The department sees merit in moves towards common pay and conditions. Disparity of pay and conditions

has a substantial impact in discouragement of mobility across the APS. It also complicates the provision of

enabling services, particularly where there have been complex machinery of government changes.

Greater commonality of pay and conditions needs to be recognised as a long-term project. It could be

undertaken in conjunction with the proposed development of professional models, incorporating

consideration of whether the existing APS classification structure and work level standards are fit for purpose

under the proposed future state. This would ensure that employee compensation structures meet the

business needs of organisations and, to the greatest possible extent, result in equal pay for work of equal

value on an APS-wide basis.

Diversity

The department strongly supports the focus of the Review on diversity. This has been a core focus of the

department, with significant work being undertaken on gender equality, and inclusion of people with

disability, people from culturally and linguistically diverse backgrounds, and Aboriginal and Torres Strait
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Islander peoples. The department supports the development of specific mechanisms to attract, retain and

progress an inclusive and diverse workforce, including targets. For example, within the department, an ‘if not,
why not’ approach has been taken to consideration of requests for flexible work arrangements, in recognition

of the importance of flexible work to promoting an inclusive and supportive environment. Cultural change of

this kind is a critical element to the success of such strategies. In addition to specific mechanisms, the Review

should consider strategies to produce attitudinal change that recognises the benefits of inclusive workplaces.

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