Dear Review Team,
Thank you for the excellent approach you are taking to the consultation process for
your review. My response is largely limited to the area of governance.
I agree with and support your proposals to make the APS more flexible, introduce a
head of service and increase the ability to harness the power of technology to draw on
government’s data holdings. However, it is my submission that without very
substantial change in the nature of the constitutional and legal relationship between
the elected government and the APS many of these goals will remain unattainable in
any sustainable way.
At the heart of my concern is that the constitution, the structure of statute, and
convention will continue to cruel attempts at achieving a more unified APS and
better whole-of-government outcomes. For as long as departments continue to be
accountable to Ministers who continue to be individually accountable to Parliament
for the decisions they make under legislation assigned to them and for the
performance of their departments, it is hard to see how real whole-of-government
flexibility can be achieved. While Cabinet will continue to coordinate and guide
ministers, without giving it (Cabinet) legal standing and justiciable authority, the
siloed nature of government will remain intact. Individual Ministers and Secretaries
will still make most of the legally enforceable decisions of government. They will
have to do so within the constraints of the law, and that may well constrain the
effectiveness of cross-agency work where expenditure and decisions under statute
are required, particularly if those decisions need to be made by Ministers.
The second structural problem—alluded to in Tiernan et al’s paper—is that there is a
need for clarity in the who the APS really serves. Section 3(a) of the Public Service
Act 1999 says one object is, “to establish an apolitical public service that is efficient
and effective in serving the Government, the Parliament and the Australian public”.
Under current arrangements, any service to Parliament and the public is
substantially at the direction of the government. In other words, the APS is the loyal
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servant of the elected government of the day and, in broad terms, is expected to do
what it’s told.
The review proposes the APS has:
• a head of service with defined responsibilities that extend beyond
• a Secretaries Board with decision-making power to drive government
outcomes, the duty to provide a vision and purpose to bind the APS and the
duty to produce a national outlook; and
• obligations to report to the Parliament on goals and outcomes more clearly
articulated and measurable than is currently the case.
At the very least these will give the APS an ability (and even a duty) to expose
Ministers to criticism for failure and poor performance in their portfolios. A national
outlook, combined with highly transparent reporting, is likely to expose elected
government’s policy commitments as inconsistent and probably impossible to
To the extent that these reforms improve transparency and lead to a considerable
improvement in the integrity and performance of government drawing better on the
very considerable capability of the APS, they are highly desirable. However, at the
very least, they will fundamentally shift the relationship between Ministers and the
APS. They require an APS substantially independent from elected officials and
considerably more resistant to operational interference. They are unlikely to be able
to be made to work in the confines of current accountability structures.
Combined with other reforms proposed to make the structure and spending of the
public service more fluid and flexible, this independence will have to include an
ability for the APS to reshape itself quickly and easily, reallocate responsibility for
expenditure amongst agencies. This will probably require significant change in how
the budget is drawn and accounted for and will shift significant levels of
accountability from Ministers to the APS. A significantly more independent APS will
have to report directly to Parliament for the new arrangements to maintain proper
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These proposals for reform are cast against a backdrop of an increasing push by
Ministers and their largely unaccountable staff to control more and more of the
detail of APS agencies’ operations in order to ensure as little damage as possible can
be done to the governing party. Given they strike at the heart of that push, sadly, it
does not seem likely they will be acceptable to any government.
Perhaps I am missing something critically important, but nothing I’ve read in your
paper encourages me to believe that the proposed reforms can achieve the hoped-for
results without a major change in the constitutional and legislative structure of the
I have five specific suggestions to add.
Restoration of the notion of the indivisibility of the Crown. There once used to
be a view that something known to one organ of the crown, could and should
be known to such other organs of the crown without having to be collected
separately. To enable the APS to draw on the wealth of knowledge and
information it holds this notion should be revived and the artificial and
limiting constraints on the sharing of information between agencies should be
removed. Of course, of necessity, there will have to be limitations, but they
should be based in the question ‘why should we not share’ rather than ‘why
should we’. The obsession with privacy in recent decades has a lot to answer
The notion of a ‘head of service’ is an excellent one. The notion of a ‘head of
people’ is not such a good one. To the extent that it harks back to the past
where an statutorily independent commission or board was the employer of
all public servants and a powerful entity in its own right, it serves merely to
reintroduce another potential level of bureaucratic power struggle from which
we’ve moved on.
It would be far better for the APSC to be abolished and the Secretary of PM&C
to be appointed head of service. In making decisions about the employment
and conditions of service of APS employees under the Act, the head of service
should have to be guided by an advisory board of secretaries of all
departments of state.
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Clearly that would require the Secretary of PM&C to enjoy considerable
All heads of agency should be appointed largely in the way you recommend—
by the Governor on the recommendation of the Prime Minister. There should
be a statutory requirement for the PM to consult the Parliament on all
appointments. Further, the circumstances on which an agency head can be
removed from office should be set out in the Act. Any recommendation to the
Governor must be supported by a motion of both Houses of the Parliament.
Secretaries should be appointed for a fixed term of no less than five years and
should be able to re-appointed. The reappointment process should be simple,
maybe simply requiring a brief Parliamentary consultation.
Agency heads who find themselves without a role as a result of machinery of
government changes should have a right to request and receive a redundancy
from the APS.
The scope of authority vested in a Secretaries Board should be very carefully
considered, unless the current structural arrangements are reviewed. A board
with the legal power to direct members who, to comply, have to make a
decision under a statute has an inherent structural problem. A member may
find themselves either having to act in a way they believe is contrary to the law
or good governance, or be placed in conflict with their Minister, or having to
refuse to comply with what may be argued to be a lawful direction. I
appreciate that people appointed to the office of Secretary of an APS agency
are likely to be able to manage this sort of conflict, but it would be better not
to create a structure containing this inherent tension.
As Dr de Brouwer notes in his interview on the review’s website, the
accountability structures of government are more complex than those of the
Fifthly, mechanisms that limit the ability easily to make machinery of
government changes should be considered. It is hard to overstate the
disruption caused by these changes and the temporary paralysis they
introduce just at a time when a clear focus and renewed energy is called for.
Some of the technological and operational changes recommended by the
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review will ameliorate some of the costs, but they will not limit or prevent the
costs to productivity. It is also worth noting that organisations subject to
constant change are never likely to achieve the sorts of cultural change and
subsequent stability demanded of them; they are certainly never likely to
achieve the levels of risk-taking and focus of a mature organisation.
Finally, I apologise for this seemingly relentlessly negative response to your hard
work. I hope I’m wrong and you’ve already figured the way around the problems I’ve
highlighted. The broad vision you’ve identified for the APS in 2030 is excellent. It
would be a pity if much of it cannot be achieved.
I am happy for you to publish my submission.
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