Chapter 2Issues raised about the bill
2.1This chapter sets out the views of submitters and witnesses about key amendments proposed to the Public Service Act 1999 (the Act) by the bill.
2.2In particular, the chapter focuses on issues raised about:
stewardship;
an Australian Public Service (APS) Purpose Statement;
decisions to be made by employees at the lowest possible classification;
capability reviews;
publishing APS Employee Census results and action plans; and
other matters not included in the bill, including whether the Parliament should expect further legislative reforms in response to, for example, the Royal Commission into the Robodebt Scheme.
2.3The chapter ends with the committee's view on the bill and recommendation.
New APS Value of stewardship
2.4As outlined in Chapter 1, the bill would see a new APS Value of stewardship inserted into the Act:
The APS builds its capability and institutional knowledge, and supports the public interest now and into the future, by understanding the long-term impacts of what it does.
2.5Evidence on the inclusion of the proposed new APS Value of stewardship was mixed.
2.6The Community and Public Sector Union (CPSU) stated it 'strongly support[s]' the 'bill's focus on the concept of stewardship'. Further, CPSU held that it 'is right that stewardship is a consideration for any government and Agency Heads in making decisions'. Mr Osmond Chiu from the CPSU acknowledged at the public hearing on 21 August that while 'there are a range of views and suggestions about the specific working of a definition of stewardship, we believe what is being proposed is reasonable'.
2.7The Synod of Victoria and Tasmania, Uniting Church in Australia, was also supportive of the addition of stewardship as an APS Value and the definition proposed.
2.8Professor Adam Fennessy PSM from the Australia and New Zealand School of Government (ANZSOG) told the committee at the public hearing that ANZSOG was 'very supportive of the introduction of stewardship as a value', arguing 'we also say [stewardship] should extend to the APS workforce, with an explicit commitment to invest in the workforce'. Professor Fennessy also stated:
Integrity and trust in institutions is critical at all times but particularly right now for the Australian Public Service. We support the package approach linking integrity, stewardship, long-term insights, briefings and capability. We think that that integrated approach is very consistent with what we saw in the Independent Review of the Australian Public Service led by David Thodey in 2019…
We say in our submission, and I say as a witness, that we are comfortable with stewardship being provided as a framework for all APS staff, not just a cohort of leaders, so that all public servants are focused on how they will leave the APS in a better state of health than when they found it… In my former capacity as the Victorian Public Sector Commissioner, there were very clear values in that legislation. We saw that as a very important way to embed that in the work of all public servants…
ANZSOG looks at the research undertaken in the Thodey Review and agrees [stewardship] should be broader, and as a value it's a very concrete way to make it clear to all APS public servants that this is an expectation of them as public servants.
2.9Professor Fennessy argued that the Thodey Review examined 'the broader understanding of stewardship so that it's not just seen as a long-term thing but everything we use as public servants'. He noted that ANZSOG was 'comfortable with that applying to frontline staff' because it 'ideally provides those staff who feel that they need to ask those questions with the means to do that'.
2.10Other evidence was not supportive of including 'stewardship' as an APS Value. According to Professor Andrew Podger OAM, a former Australian Public Service Commissioner, the Thodey Review did not recommend that 'stewardship' be included as an APS Value. He argued that the 'apparent positive views of public servants who responded to the consultation paper' on the bill's provisions 'may not have been well informed, their views reflecting only general support for reform and not necessarily the specifics suggested'.
2.11Professor Podger was in favour of secretaries and the Secretaries Board being responsible for stewardship (albeit a revised definition of stewardship). However, he contended that 'stewardship is not a value that every APS employee is in a position to uphold; let alone being in breach of the Code of Conduct should they fail to do so!' Professor Podger further argued that '[y]ou can't expect a staff member in a Wagga Wagga Centrelink office to have those responsibilities'. He suggested that requiring all public servants to uphold stewardship 'would only cause confusion'.
2.12Professor Podger also was of the view that the wording in the bill for stewardship 'is a clumsy attempt to find something that all public servants might uphold'. He called for a review of the APS Values as a whole.
2.13Mr Patrick Gourley also had similar concerns about stewardship, arguing that:
the proposed definition is 'nonsensical';
stewardship is not a value but rather a function; and
the proposed inclusion of stewardship would expose all APS staff 'to disciplinary action on the basis of a vague and imprecise definition for things over which the vast majority have little or not control'.
2.14Mr Gourley noted that although 1,500 public servants had commented on the importance of stewardship in public consultation on the proposed new APS Value, the 'more pertinent statistic is that around 160 000 did not, a telling display of uninterest and perhaps apprehension'. He argued that stewardship, if it is defined as ensuring the public service is properly resourced and has the structures, laws and operating procedures to perform its functions, should be the responsibility of ministers, heads of agencies and senior officials. MrGourley contended that no 'organisation with aspirations to be a "model employer"' should submit its 'staff to the possibility of disciplinary action for things over which they have no meaningful control, as would be the case if stewardship were to be added to the Public Service Act values'.
2.15Some evidence, while supportive of stewardship becoming a key APS Value, called for it to be articulated differently, or for additional processes to be put in place to ensure that it is implemented. For example, the Australia and New Zealand School of Government (ANZSOG) called for 'a more expansive understanding of stewardship' that would 'be integrated into to all APS activities and processes from procurement to policy development, from implementation to workforce management and administrative decision making'. ANZSOG also pointed to Aboriginal and Torres Strait Islander understandings of stewardship, suggesting that these would be 'instructive and relevant for the APS, as an institution with an important role to play in supporting the government of the day in serving First Nations communities'.
2.16The University of New South Wales Public Partnerships and Impact Hub (the Hub) submitted that 'stewardship is a contested concept with a broad range of typologies' and 'there is a risk that the concept will only be applied in terms of future crisis or scandal mitigation'. The Hub called for:
the APS to develop a clear operational definition of stewardship and supporting guidance;
this work be supported by consideration of the academic literature on stewardship typologies and their application;
this work be further supported by examining how stewardship is operationalised (or otherwise) in other Westminster systems; and
the APS Reform agenda to particularly focus on measures to support departmental secretaries and APS leaders to interpret, apply, monitor and report the value across all levels of each department or agency.
2.17The Hub's submission focused on the definition of stewardship and the academic literature on the concept, noting that there 'is little literature supporting a consistent definition of stewardship in a broad public sector or public administration context'. It noted that service-wide 'stewardship is quantitatively different to leadership stewardship and this presents the challenge of crafting a definition of stewardship that reflects the possibilities for all staff to act as stewards'. It was of the view that:
While stewardship is a primary responsibility of the most senior political and public service leaders, it is a mistake to say it rests with them. Every public servant, by every act, whether deciding who to consult when developing a policy, how to implement a new program, or when responding to a citizen's query, is performing a stewardship role for enduring public service institutions. Like any other senior executive duty, it must be cascaded through performance expectations to those in all roles… We should aim to ensure every public servant knows and is held to account for the way they affect the performance and sustainability of efficient, effective and ethical public administration.
2.18The Hub suggested that the meaning of stewardship proposed by the bill 'fails to draw on other key elements of stewardship used in other jurisdictions that can support a stronger APS and have value for all staff'. The Hub was of the view that these elements include achieving ongoing improvement through review, evaluation and learning, and working openly, collaboratively and inclusively. It argued that exploring 'these additional elements would offer greater insight for APS employees into how they might contribute to this value and avoid the concept of stewardship being understood only in terms of risk mitigation'. Further, the value of stewardship 'must be underpinned by systems and processes that support public servants at all levels to act consistently and within their authority', to avoid the value of stewardship being aspirational only. The Hub proposed that such systems and processes include clear examples and articulation of what stewardship looks like in different roles and day-to-day work.
2.19The Department of Prime Minister and Cabinet (PM&C) and the Australian Public Service Commission (APSC) in their combined submission noted that about 1,500 people responded to an online survey about the proposed new Value of Stewardship. Results indicated:
The majority of respondents understood stewardship to mean:
- Taking care;
- Long-term;
- Future generations;
- Maintaining knowledge; and
- Responsible management;
Around 90 per cent of respondents already saw themselves and their peers as stewards in their roles, with 'acting like stewards' including:
- Sharing knowledge;
- Providing frank, fearless advice on long-term impacts;
- Supporting staff to grow capability to meet challenges;
- Maintaining information and good record keeping; and
- Building better and lasting systems;
A minority of respondents (less than 5 per cent) expressed some concerns, including:
- Stewardship as an APS Value would be difficult to translate into action;
- APS Values are not front and centre for some workers, and they may be unfamiliar with this new proposed value; and
- Stewardship is a role, rather than an APS Value, that is already captured for Secretaries and Agency Heads.
- PM&C and the APSC argued that adding stewardship to the APS Values would 'ensure that all APS employees are able to see how their individual behaviours contribute to the stewardship of the APS and act in a way that upholds that Value at all times'.
- At the public hearing on 21 August 2023, Dr Gordon de Brouwer, the Australian Public Service Commissioner, told the committee:
The overwhelming response from public servants themselves is they want stewardship. They see themselves as stewards, and they like the language and they feel responsible for it. The idea that stewardship only belongs to the very top of an organisation—I know that was in the changes to the Act, but that thinking in public administration has moved on from it just being the very top. It really is that sense that you are responsible for how your institution works and also for how you leave it and where you leave it for the next group of people or the next generation to come in.
APS Purpose Statement
2.22Evidence was largely supportive of the proposed APS Purpose Statement. For example, the CPSU suggested that 'the involvement of APS employees in the development of the purpose statement of the APS is essential'. Further, the 'recently released Royal Commission into Robodebt demonstrates the importance of proper stewardship and the involvement of employees in developing policy'. At the public hearing on 21 August, Mr Osmond Chiu from the CPSU argued:
The proposal for an APS purpose statement is not dissimilar to a mission statement for an agency, but for the entire service. Reports from CPSU members who participated in the development process for the statement have said they have found it valuable. Given we have a comprehensive Public Service Act which sets out APS values and a code of conduct, we don't have issues with an aspirational statement.
2.23However, some submitters had reservations about the APS Purpose Statement.
2.24Professor Podger, while acknowledging that the proposed amendment is based on a recommendation from the Thodey Review, was of the view that 'it is not only unnecessary but potentially dangerous'. He argued that Section 3(a) of the Act,which sets out the first objective of the Act, already sets a 'unifying purpose statement'. Professor Podger considered that a review of the purpose statement every five years 'seems like a perpetual review of the role of the APS… While functions of government change, the basic role of the APS does not… The proposed five-yearly process smacks of pandering to fashions in management'.
2.25Professor Podger contended that all eight possible versions of the purpose statement developed repeat concepts already found in the Act. Further, 'to the extent they introduce new aspirations (for example, references to "country" or "wellbeing"), those should be properly examined including by the Parliament'. Professor Podger considered this appropriate given experience 'suggests that the Secretaries Board may be strongly influenced by the Government of the day'. He called for the bill to be amended to remove the provisions related to an APS Purpose Statement or, alternatively, for such a statement to be subject to the endorsement of the Parliament.
2.26In particular, Professor Podger considered that the proposed amendment would be 'Utopia-like in its diversion of APS resources every five years to navel gaze, when section 3 of the Act already has a clear purpose and agencies ought to be getting on with' their work for the Australian people.
2.27Professor Adam Fennessy PSM from ANZSOG also agreed at the public hearing on 21 August that purpose statements 'should be either set by the Parliament or supported by the Parliament. I think that's appropriate from a democracy perspective and an accountability perspective'.
2.28Mr Patrick Gourley also expressed concerns about the Parliament having no power to disallow any purpose statement, arguing:
It is fundamentally undemocratic for the Parliament to be denied the power to decide the purpose of an organisation regulated by its laws. Indeed, there is no reason in logic as to why the purpose of the public service should be left to large committees of officials to determine. This is a failure of proper governance. No other government organisation has its purpose determined by its staff and nor should that be so for the public service as a whole.
2.29Mr Gourley considered that the purpose of the public service should be constant, even while the functions of government change. Like Professor Podger, he was of the view that 'any purpose statement should be approved by the Parliament'. Further, a purpose statement should be included in the Public Service Act 1999 itself.
2.30Conversely, the CPSU argued that 'the involvement of APS employees in the development of the purpose statement of the APS is essential', suggesting that the Royal Commission into the Robodebt Scheme had demonstrated 'the importance of… the involvement of employees in developing policy'.
2.31PM&C and the APSC underlined the importance, from their perspective, of a five yearly review of the purpose statement to ensure it 'remains contemporary and responsive to the changing expectations of Government'. Further:
The APS purpose statement will build on the foundations of the Act, including the objectives outlined at section 3 [of the Act]. The statement will unite the APS by developing and embedding an inspiring purpose that resonates with all public servants and makes clear APS aspirations. Research highlighted by the Thodey Review indicates that creating a shared purpose and vision to unite large, complex organisations such as the APS through periods of transformation can deliver better outcomes, by improving motivation and increasing collaboration.
2.32Dr Gordon de Brouwer, the Australian Public Service Commissioner, further clarified the Government's intent behind a purpose statement:
The purpose statement was never intended to be a separate statement from what's in the Public Service Act—or in the [Public Governance, Performance and Accountability Act 2013] for that matter—around the values and role of Parliament. It's really… akin to a vision statement, which you so often see in corporate plans. It's a way for staff… to see all of their legislative requirements and obligations and think where, in the context they're operating in now, they would see the priority over the next five years. In no way does it move away from the power or importance of Parliament and the government determining the activities or purpose of the Public Service, but it's a way for the service to engage on that issue in the context of its legislative mandates. So it is really a motivational matter in administration of a department and is in no way meant to subvert or replace the Parliament… It's a very common part of institutional organisational management to, in a sense, have a rallying call that brings staff together. It was meant in that context.
Directions from ministers on individual employment matters
2.33In general, submitters did not express concerns about the proposed amendment to section 19 of the Act to explicitly provide that ministers must not direct agency heads on individual employment matters for the APS. For example, Professor Podger acknowledged that the amendment would see a change 'from a passive statement to an active statement' and proposed that the committee agree to the amendment.
2.34However, the following reservations were expressed about the proposed amendment, including from Professor Podger:
it 'seems no more constraining on ministers than the current wording'; and
it 'makes no material legal difference… and is redrafting for its own sake, yet is otherwise unobjectionable'.
2.35PM&C and the APSC argued that the bill 'strengthens section 19 of the Act, reaffirming the apolitical role of the APS by making it explicit that Ministers cannot direct Agency Heads on individual APS staffing decisions'. They were of the view that the amendment would 'provide confidence to Agency Heads to act with integrity in the exercise of their duties and powers'.
Decisions by employees at lowest appropriate classification
2.36Submitters and witnesses raised the following concerns about the proposed requirement that agency heads implement measures to create a work environment that would enable decisions to be made by APS employees at the lowest appropriate classification:
whether this is a matter for legislation, rather than good management practice, which may include:
- reducing the number of deputy secretary positions in agencies; and
- giving Executive Level staff (EL1 and EL2) more authority in administration and policy advising;
a lack of clarity about whether the amendment would open up avenues for dispute that should be handled in the workplace without raising questions of law;
the amendment includes no process for enforcement, making it seem largely rhetorical; and
whether the amendment would lead to increased responsibility without appropriate remuneration for lower levels.
2.37Mr Patrick Gourley suggested that there are too many senior executive level staff, arguing:
…in 1974 the APS had around 280 000 staff, a far wider range of functions and a more complex and varied workforce. At that time it had 20 Deputy Secretaries and 157 First Assistant Secretaries. In 2022, with a narrower range of functions and a less varied workforce of 160 000, there were 140 Deputy Secretaries and 662 First Assistant Secretaries. That is, in the last 50 years the number of Deputies has increased sevenfold and First Assistant Secretaries by threefold while the size of the Service has decreased by around 120 000 and its functions have become less complex.
2.38Mr Gourley argued that without a reduction in the number of positions at senior levels, 'decisions will continue not to be made at the lowest possible levels or even the most appropriate ones'. He called for the bill to be amended so that:
the APSC would be required to approve the creation of Deputy Secretaries;
the primary determinant for the need for new Senior Executive Service (SES) positions would be a minimum of five direct reports;
all current SES positions would be continuously reviewed as they become vacant and only retained if they continue to supervise five direct reports at a minimum;
all agencies would be required to include in their annual reports and publish on their websites explanations of how they have administered their classification responsibilities, including full justification for the creation of all Deputy Secretary and First Assistant Secretary positions; and
the APSC would report in its annual and State of the Service reports on how it has administered classification and provide an assessment on how effectively decisions are being made at the lowest possible level.
2.39The CPSU was supportive of employees at senior levels being empowered to make decisions. However:
…we have observed a tendency to inappropriately misdirect work to lower-level APS employees. Guidance to have decision making at the lowest classification, as proposed in s19A(1), has been used to force complex work on lower-level staff, without appropriate remuneration, and entrench the historical under classification of service delivery and feminised work.
2.40The CPSU acknowledged that the Explanatory Memorandum had allowed for consideration of the appropriate level of remuneration for each classification. It also informed the committee that it intends to use the current APS enterprise bargaining process, in particular through a work level standards review, to ensure 'that there are appropriate protections in place' so that 'work is not inappropriately pushed down classifications'.
2.41Witnesses from the CPSU informed the committee at the hearing on 21 August that following engagement with PM&C, 'we're comfortable with what is in the proposed bill'.
2.42PM&C and APSC clarified in their combined submission that the proposed amendment 'is not designed to push work or risk down to an inappropriate level'. Further, an 'Agency Head would have the discretion to consider what constitutes the lowest appropriate classification, taking into consideration the work level standards for classifications'. They argued that consideration 'of the work level standards for classifications also allows consideration of the remuneration typically associated with the complexity and authority of decisions at each classification'.
2.43The Australian Public Service Commissioner, Dr Gordon de Brouwer, suggested that the idea of putting the proposed amendment in legislation came from a similar requirement in Western Australian legislation. In addition:
When it is in legislation, it really is a powerful indicator to agency heads of what their legal responsibilities are and it is the Parliament saying to agency heads that we expect you to do the work at the appropriate level.
Capability reviews
2.44Submitters largely expressed their support for the legislative requirement for regular capability reviews, although some called for the requirement to go further.
2.45For example, the CPSU stated that it had 'sought clarification to ensure the independence of all independent reviewers for capability reviews prior to them being appointed, specifically in light of recent consultant scandals'. It noted that the 'Explanatory Memorandum now includes that independent reviewers must declare any conflicts of interest'. The Australia and New Zealand School of Government also stated that it 'supports the regular use of capability reviews as one element of a public service systemwide development approach'.
2.46The Australian New Zealand School of Government (ANZSOG) stated it supports regular capability reviews. It noted that in New Zealand, 'capability reviews have grown to enjoy bi-partisan support as they have evolved from a diagnostic tool to a mechanism that helps senior leaders understand issues… and what an agency needs to do to address them'. ANZSOG called for review measures to not be fixed in legislation, to allow for improvements and developments in review methods. ANZSOG provided further detail in its submission on what its research suggested a capability review framework should comprise.
2.47The Department of Agriculture, Fisheries and Forestry (DAFF), while supportive of the proposed amendment, noted that the bill does not include a right of reply for departments before finalising a report. DAFF argued that 'this is a pivotal part of the procedural fairness attached to the review process'.
2.48DAFF has been subject to a Capability Review pilot, along with the APSC and two other departments. PM&C and the APSC informed the committee that the 'approach taken to each review under the pilot will change based on lessons learned from previous reviews'.
2.49Professor Adam Fennessy PSM from ANZSOG noted that he had been involved in a capability review pilot for the Department of Infrastructure, Transport, Regional Development, Communication and the Arts. He told the committee:
One of the benefits I see of the capability review framework the Commonwealth is presiding over is that it uses two independent people, plus a current deputy secretary from the Australian government. I think that design feature means that the learnings are inculcated into the current senior executive of the Australian Public Service, which I think is a really good innovation of the current APS process. Certainly in my experience, our advice to the secretary is very candid and frank. It's all about how they then support the government of the day. So it has an appropriate apolitical focus…
The one I have been involved in has been very encouraging. The APSC has taken care to think across the range of capability reviews to the broader learnings framework. I think as soon as next week we are going to be asked for our feedback on how we thought the framework worked with the first pilot reviews. So there is a continuous improvement focus.
2.50The Synod of Victoria and Tasmania, Uniting Church in Australia supported the inclusion of capability reviews in the bill. However, it expressed concern 'that under a future government hostile to the APS, capability reviews could be used to justify cuts to the resources of the APS'. The Synod did acknowledge that a future government could make cuts to the APS without a capability review.
2.51Professor Podger suggested the requirement for departments to have capability reviews could be extended to every agency, or at the very least those with more than 100 employees. Similarly, Mr Patrick Gourley was of the view that the proposed amendment 'as it stands is inadequate in that it only requires capability reviews for all departments, Services Australia, the Taxation Office and the Public Service Commission'. This appears to exclude 'most APS agencies including the Bureau of Statistics, the Bureau of Meteorology, the Productivity Commission, the Australian War Memorial, the National Audit Office, the Ombudsman and the National Library'. Mr Gourley called for capability reviews to 'be mandated for all APS agencies'.
2.52Neither the bill itself nor the Explanatory Memorandum appear to stipulate a requirement for agencies, as distinct from departments, to be subject to capability reviews. The bill would require 'a capability review of each Department, Services Australia and the Australian Taxation Office' (emphasis added).
2.53The Act defines 'Department' as 'a Department of State, excluding any part that is itself an Executive Agency or Statutory Agency', while an 'Agency' is defined as a Department, Executive Agency or Statutory Agency.
Insights reports
2.54Submitters were overall supportive of the requirement that the Secretaries Board 'cause' at least one long-term insights report to be prepared each financial year. Professor Podger, for example, suggested that this requirement would allow 'opportunity to consider cross-portfolio and whole-of-government challenges as well as ones within a portfolio department's responsibilities'.
2.55ANZSOG noted that the implementation of a similar requirement in NewZealand for government departments to produce long-term insights reports at least once every three years 'has not been entirely straightforward'. ANZSOG suggested that this was because of the model in place in New Zealand, requiring departments to prepare such reports independently, which worked against whole-of-government analysis needed to identify key trends and drivers of change.
Publish APS Employee Census results and action plans
2.56ANZSOG was supportive of the requirement for Commonwealth agencies to publish their results of the APS Employee Census and action plans, arguing that the 'Census can provide an insight into department culture, and can provide a safe way for staff to raise concerns about ethical and integrity matters'. Further, 'ANZSOG has a clear view that the prospect of independent scrutiny of organisational and manager behaviour, including via a robust and transparent staff survey process, changes behaviour for the better'.
2.57However, ANZSOG proposed that the Australian Public Service Commissioner should use their powers as little as possible to allow for exemptions from publishing Census results or action plans, or to authorise the removal of material. ANZSOG further proposed that the Commissioner, in the interests of transparency, publish information on:
the number of exemptions granted each year and the agencies granted these exemptions;
the number of authorisations to remove material; and
the number and names of agencies that have not published an action plan within six months of receiving their APS Census results.
2.58Professor Podger was 'not convinced' that requiring agency heads to prepare action plans in response to APS Employee Census results 'is necessary'. He noted that the Public Governance, Performance and Accountability Act 2013 requires agencies to prepare and publish corporate plans, suggesting that 'those plans would be a more appropriate place for responding to issues arising from the employee census, rather than a separate action plan every year'.
2.59The Department of Agriculture, Fisheries and Forestry expressed its support for the requirement to develop an action plan, but suggested that 'consideration for resourcing needs is also required'.
2.60PM&C and the APSC noted that the APSC provides guides and templates 'to support action planning by and within agencies'. They argued that action 'planning in response to results is a core component of the APS Employee Census'. Further:
Requiring the publication of APS Employee Census results and action plans to be published on an agency website furthers the transparency mechanisms already present within the Act, whereby the APS Commissioner must table information on the state of the APS during the year.
Delegation of powers and functions to Australian Defence Force (ADF) members
2.61No concerns were raised by submitters about the proposed delegation of powers and functions to members of the ADF.
2.62PM&C and the APSC noted that the Act as it stands does not allow agency heads to delegate their powers or functions to an outsider without prior written consent from the Australian Public Service Commissioner. They argued that this proposed amendment would 'eliminate unnecessary administration', mean that ADF members would no longer be considered 'outsiders' within the confines of the legislation, and align the Act with updates made to the Public Service Regulations 2023.
Matters not included in the bill
2.63Some evidence expressed disappointment that particular reforms were not included in the bill. Mr Patrick Gourley, for example, argued that the bill's 'major failing is in what it doesn't contain'. Further:
A measure of that inadequacy can be gained by asking if the provisions of this Bill had been introduced 10 years ago, would the Public Service have avoided the many weaknesses and shortcomings that have affected it in that period. That is not an easy question to answer but only a super-optimist could say that it would have and it is certain that such an optimist would likely struggle to explain how the provisions of the Bill would have had that effect.
2.64Mr Gourley provided a page of suggested additions to the bill, and proposed that secretaries removed from their positions by ministers be appointed as secretaries of other agencies or found comparable positions, except in situations involving discipline, incompetence or incapacity.
2.65At the hearing on 21 August 2023, Professor Podger suggested that a central issue for the committee 'is whether this bill represents the totality of the government's agenda for legislative change to reform the public service or whether more is to be proposed later'. He told the committee:
My preference would be for a comprehensive bill to come forward. At the very least, there should be a commitment from the government that there will be more—that there's further legislation to come through. Otherwise, this is a really missed opportunity, and we're failing to respond to the Royal Commission on Robodebt… At the very least, we need the government to say: 'Yes, we will be coming back with more. We've still got more work to do, and that includes more legislative work to do, not just more things done within the Public Service.'
2.66Professor Podger also provided other suggested amendments to the Act relating to breaches of the Code of Conduct, and other issues flagged by the Royal Commission into the Robodebt Scheme.
2.67On the other hand, Professor Adam Fennessy PSM from the Australia and New Zealand School of Government was of the view that it is 'important to maintain momentum' that would 'see the bill being debated as it is being right now at committee so that [the proposed] changes come through, because legislation can take a long time'. He expressed worry about how long a larger set of legislative reforms might take.
2.68Mr Osmond Chiu from the CPSU informed the committee that 'the reality is amending the Public Service Act is not one of the things our members bring up at this stage'. He noted the 'range of issues that have been raised' in this inquiry, but stated that the CPSU's 'view is that this range of issues would be better dealt with in further tranches rather than seeking to rewrite this amendment'.
2.69Other evidence called for a review of the APS Values that would see the insertion of 'merit' into the Values.
2.70On the matter of merit, the Australian Public Service Commissioner, Dr Gordon de Brouwer, informed the committee that for the first time, the position of a secretary was recently advertised through a merit-based open process. He was of the view that 'merit is well catered for in the [APS] Values' and is 'very deeply embedded in the employment requirements in the Act and in the practices of the Public Service'.
2.71Dr de Brouwer, in response to a question about whether advice is being provided to Government on further potential legislative changes as part of the APS Reform initiatives, told the committee:
There are two very important processes underway. One is the Integrity Taskforce in PM&C that was established very early in the piece in February this year, and there is a task force providing advice to government around the recommendations in the Royal Commissioner's Royal Commission report [into the Robodebt Scheme]. The Government has been very clear about both of those taskforces. They are set up to provide advice on integrity and on the Royal Commission, so the answer is yes there is a process underway to provide advice, but the content and matter of that are always a matter for government.
2.72Dr de Brouwer noted that when the APSC 'went through the comments that we got on various elements of the draft legislation, we could see that there is a lot of support for it'. However, he acknowledged that 'there's a range of opinions, and I think you have heard that range of opinions'. Further:
Dealing with everything in one fell swoop would be tidy, but you would have to wait a fair while for other things to fall into place to do everything in one fell swoop... It's better to do it incrementally on a no-regrets basis. Each of these things is on a no-regrets basis, and they build on a series of things. They fit the times, and they fit the interests of Parliament. Frankly, they also go to the digestibility within public administration. If you changed everything in one fell swoop now, immediately, it would be very hard to absorb. If you had a sequence of changes and they evolved and happened over time, it would be much easier to absorb and get deeper institutional change in behaviour, rather than pointing to a law that has been met without there being changes in behaviour.
2.73Dr de Brouwer's comments were echoed by Dr Rachel Bacon, Deputy Secretary in the APS Reform Office, who highlighted that the Government has 35 initiatives in train to meet its eight APS Reform outcomes. She stated that PM&C will be:
…providing further advice to government at the appropriate point in time as to how else government might deliver those outcomes. In a sense that delivery architecture is there and available for government to be delivering APS reform initiatives into the future, as government sees fit.
Committee view
2.74There is no question that serious concerns have been raised in recent years about the conduct and the culture of the public service. This bill presents a legislative tranche of reforms to change aspects of the public service that the committee considers are largely unobjectionable.
2.75While acknowledging concerns raised about stewardship by some submitters, the committee is reassured by the level of consultation that the Australian Government carried out on stewardship and whether it should be an APS Value. Given the recent findings of the Royal Commission into the Robodebt Scheme, which showed that in a number of instances it was lower-level public servants who raised concerns about the Scheme rather than the Senior Executive Service, the committee takes the view that every public servant should be required to uphold a value of stewardship that requires them to understand the long-term impacts of what they do, as the bill would stipulate.
2.76The committee was convinced by arguments that an APS Purpose Statement should be developed by the APS itself, as it forms a vision statement that should be updated as public administration itself changes.
2.77The committee also agrees with the evidence provided by the Department of Prime Minister and Cabinet and the Australian Public Service Commissioner that agency heads should be required in legislation to create a work environment that encourages decisions to be made at the lowest appropriate level. While this proposal will not immediately counteract the existing top-heaviness of the public service that leads to its well-established inefficiencies, the legislative requirement does signal to senior leadership that they should not be creating work for the Senior Executive Service that can be done by lower levels. The committee concurs with the Community and Public Sector Union's view that the bill as it stands will provide sufficient safeguards to ensure that decision-making is not referred downwards without consideration of appropriate remuneration, and notes that a new APS Enterprise Agreement is currently under negotiation.
2.78However, the committee considers that other aspects of the bill—capability reviews, insights reports and action plans arising from APS Employee Census results—should be subject to increased parliamentary scrutiny, for the reasons set out below.
2.79It was the Senate that referred an inquiry into the Robodebt Scheme long before a Royal Commission was established by the Executive branch of government, or made findings that called into question aspects of the conduct and the culture of the Australian Public Service. It is the Senate that calls departmental officials before it, at both estimates and public hearings for individual inquiries, to answer for their conduct and their expenditure of public money. History suggests that there have been failings when the public service and the Executive branch of government have been left to review or question themselves, and that this trend cannot be expected to change without external accountability measures. As such, there are reasonable questions to be asked about whether the public service should set and administer its own reforms without an appropriate level of parliamentary oversight.
2.80The committee encourages the Australian Government to respond to the following concerns through parliamentary debate or a tabled statement:
why capability reviews will not be required of every agency; and
whether the Australian Public Service Commissioner will be expected to publish information on:
- the number of exemptions granted each year to agency heads from publishing their APS Employee Census results or action plans, and the agencies granted these exemptions;
- the number of authorisations granted to remove material prior to publication; and
- the number and names of agencies that have not published an action plan within six months of receiving their APS Census results.
- The committee concurs with the view of the Senate Standing Committee for the Scrutiny of Bills (Scrutiny of Bills Committee) that tabling documents in the Parliament, even if they are published elsewhere, draws the attention of parliamentarians to their existence and provides opportunities for debate that would not exist if these documents were not otherwise tabled. Ministers in the Australian Government will remember the key role that documents tabled in Parliament played for the then-Opposition to hold the former Government to account, including through Senate estimates. This recommendation would ensure that long-term accountability measures are put in place, no matter who holds government. The committee calls on the Australian Government to require documents created by capability reviews, long-term insights reports and action plans responding to APS Employee Census results be tabled in the Parliament. However, the committee understands that the requirement for any tabling of those reports might be after they have been made public or considered in other ways—for example, after employees have been given access to Census results and action plans. These considerations should provide a rationale for whether such reports can or should be considered or made public by agencies first.
- Given the number of smaller agencies, the committee notes that the Government has said reviews will be limited to larger agencies, due to resourcing issues. The committee would expect that the relevance of any key insights from the reviews would be considered in the context of smaller agencies, where appropriate.
- Finally, the committee recognises that some consider the amendments proposed in the bill do not go far enough to address issues that have been identified recently about the conduct and the culture of the public service, including those identified by the Royal Commission into the Robodebt Scheme.
- The committee is sympathetic to this view but does not consider that the bill should be held up by amendments that the Government has indicated it is considering introducing anyway, whether through legislation, policy or administrative decisions. The committee encourages the Government to consider putting as many of these anticipated reforms as possible into legislation, to ensure that they are subject, in the first instance, to the parliamentary scrutiny needed to hold any government and public service to account. The committee will continue to question the Australian Government and the public service through Senate estimates about the implementation of reforms in the APS, and pursue a number of the issues raised in this inquiry in that forum.
2.85The committee recommends that the Senate pass the bill.
Senator Louise Pratt
Chair