Foreword
The law requires the Australian public service to be efficient and effective in serving the Government, the Parliament and the Australian public. In delivering outcomes, however, it is not a case of anything goes.
The public sector is obligated to operate with probity and ethically. Narrow compliance—that is, complying with the letter of the law or rule while ignoring its intent in order to deliver outcomes—does not cut it.
Yet too often the public sector is falling short of the high standards of professionalism required of it, failing to comply with both the intent and the requirements of its legal and regulatory frameworks. Risk tolerance for non-compliance is unacceptably high; ‘getting things done’, even if it involves cutting corners, has become, in some instances, more important than complying with the law.
The Committee has observed over many years, including through this inquiry, a pattern of persistent resistance to accountability across the public sector. Accountable authorities do not consistently have frameworks in place to be reasonably confident their officers are acting according to the letter and the intent of the law, and thus demonstrating probity.
To foster an Australian Public Sector that acts with probity and integrity, the Committee has concluded that a focus on three critical and interdependent aspects of the system is necessary:
- Frameworks—legislation, regulations, rules, policies, codes and guidelines which set the requirements of entities and officers, including but not limited to, finance law.
- Culture—‘the way we do things around here’ will rightly vary across entities depending on their missions, but within the limits set by cross-government frameworks; the tone is set by governments and the Parliament, while entity culture is overwhelming set by senior leaders.
- Accountability—of individual officers for their actions; of senior leaders and accountable authorities for their entities; and of policy owners for outcomes of and compliance with their policies.
The key, however, to ensuring the public sector acts with probity and integrity is overwhelmingly not the rules per se—it is ethical leadership: the ‘golden thread’ that binds and animates the system in a positive direction. Ethical leadership must be demonstrated at all levels, especially by accountable authorities and senior officers.
The Committee acknowledges that while senior officers must be accountable for culture, the ‘tone’ is set by government and ministers. Reforms such as the National Anti-Corruption Commission, and ongoing efforts to rebuild the capability of the public service and learn the lessons of the Robodebt Royal Commission, in addition to dealing with the myriad of rorts and maladministration under the previous government are welcome but ethical public sector leadership remains key.
Shortcomings in integrity frameworks
Numerous frameworks for integrity exist across the public sector and, during the inquiry, the five entities examined in this report told the committee they measured probity largely through a range of integrity metrics.
Yet integrity frameworks focus predominantly on administrative and process-oriented metrics which are necessary but not sufficient to give accountable authorities confidence their officers are acting with probity and ethically. Integrity metrics are simply the minimum requirements of the law under which the public sector operates.
It may seem intuitive to subsume probity within the concept of integrity, and it is not necessarily problematic do to so. However, when probity is narrowly equated with integrity metrics, officers can make a flawed judgement that if there are no conflicts of interest, if they are not benefitting personally from a decision, if they have a positive performance review, if they have completed mandatory training, then they are acting with probity.
It was concerning to hear during the inquiry that even when officials were found acting contrary to finance law, multiple witnesses and entities referred to a ‘lack of malintent’, to having ‘acted in good faith’, and ‘delivering on decisions of government’.
The Committee’s firm conclusion is that any claim or view that it is somehow acceptable for an officer to breach finance law and fail to act with probity, but still be acting in good faith and for a proper purpose, is clearly and unambiguously wrong.
How accountable authorities can be sure their officers are acting with probity
Acting with probity means pursuing high standards of professionalism; doing the right thing at the right time; being ethical, impartial and accountable; demonstrating complete and confirmed integrity, uprightness and honesty; and complying with the intent and the letter of the law. While accountable authorities may expect their officers to act with probity, knowing they are acting with probity is a different matter. Entities during the inquiry were unable to show how they could be sure, or assess their level of confidence, that their officers were acting with probity.
How one measures honesty, care, diligence, and confirmed uprightness in an officer’s actual behaviour is a difficult question and no doubt imperfect; but agency heads must be confident their officers are acting with probity—it is a legal obligation.
Independent audits, such as those conducted by the Australian National Audit Office, are an important aspect of accountability. They can examine how officers actually perform their tasks, shine a light on instances where officers do not act with probity or ethically, identify where finance law is breached or where the rules are bent to achieve a pre-determined outcome. However, it is neither possible nor desirable to subject agencies to rolling audits, hence, other systemic mechanisms are needed.
Recommendations that seek to embed assurances with regard to probity and ethics in public sector accountability systems and mechanisms include:
- Finance to issue guidance making clear to public officials that if they breach finance law, suggesting there was no malice or personal gain is NOT sufficient to fulfil their obligation to act honestly, in good faith, and for a proper purpose.
- Health to formally review the appropriateness of corporate awards and whether they should be revoked, in particular from senior officers, for a project that knowingly broke finance law multiples times.
- Augmenting the APS Employee Census with questions regarding compliance with both the letter and intent of frameworks to better assess the extent of actual compliance with ethical obligations.
- The Australian Public Service Commission (APSC) to develop guidance with a definition of culture and metrics to build, measure and assess organisational culture as it applies to probity.
- A new requirement for entities to develop and maintain an overarching Integrity Framework.
- A greater focus on the accountability of policy owners: Finance and the APSC to develop a reasonable assurance mechanism to ensure the policy frameworks they administer are effective.
The Committee did not re-litigate in detail the various shortcomings in entity performance uncovered in the audits examined during the inquiry, but does make several recommendations in relation to the administration of the Artbank program.
Ultimately the Committee concluded its most valuable contribution to the ongoing work on public sector integrity is to propose a clearer framework for probity and ethics: where ethical leadership is the ‘golden thread’ at the centre that binds and animates the system in a positive direction.
Julian Hill MPChair
