George O'Farrell

Review of the Australian Public Service

APSReview@pmc.gov.au

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

Response to the Review of the APS Page 1 of 5

George O'Farrell
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
coordination;

• 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

achieve.

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

integrity.

Response to the Review of the APS Page 2 of 5

George O'Farrell
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

Australian Government.

I have five specific suggestions to add.

1. 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
   for.
2. 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.

Response to the Review of the APS Page 3 of 5

George O'Farrell
Clearly that would require the Secretary of PM&C to enjoy considerable
statutory independence.

3. 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.

4. 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
   private sector.

5. 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

Response to the Review of the APS Page 4 of 5

George O'Farrell
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.

Yours sincerely

George O’Farrell

Response to the Review of the APS Page 5 of 5

George O'Farrell