I have recently read two articles, written a generation apart and from opposite ends of the world, but reflecting on the same Westminster tradition.
The first was David Marr’s Quarterly Essay. With customary eloquence, it mourns an Australian public service cowed by the Prime Minister into abject fear and supine silence. “His master’s voice,” according to Marr, has “neutered Canberra’s mandarins.”
By way of evidence, Marr presents what he perceives to be the unacceptable intimidation of courageous whistleblowers. He gives five instances of leaking, of which he attributes four to public servants: the theft of six cabinet submissions on indigenous issues; the provision to the Herald Sun of a draft government policy proposal from the Department of Veterans’ Affairs (which, Marr notes, “had been jettisoned before the paper hit the streets”); an internal report to Customs on the failings in airport security; and a private record of a discussion between the Australian foreign minister and the New Zealand high commissioner.
The passion of the language – which imagines John Howard “thrashing public servants” and establishing “political control” – glosses over the most fundamental of facts: in none of these four examples was the transmission to the media or the Opposition of confidential government documents driven by the need to expose behaviours that were unlawful, unethical or even unacceptable. There is no suggestion that corruption, nepotism, misappropriation or inappropriate conduct were exposed. In each case the motivation – to which Marr is naturally sympathetic – was that the leaker thought that either the policy decisions or their public administration did not meet their own perception of the national interest.
They were not exposing a breach of the Australian Public Service (APS) Code of Conduct. Quite the opposite: the Public Service Act, passed with bipartisan support in 1999, makes it clear that such behaviour is itself a breach of the Code. Setting the standard for good governance, the Code requires that an APS employee must maintain appropriate confidentiality about dealings with ministers and must not make improper use of inside information.
The behaviour Marr admires is also at odds with section 70 of the Crimes Act. It is an offence for current or former Commonwealth officers to publish or communicate Commonwealth information where there is a duty not to disclose. This is not some recent measure designed to silence dissent. Non-disclosure offences have been a feature of the Act since 1914.
Let me be blunt. The individuals cast in an heroic light by Marr, however well‑intentioned, did wrong. That is why some of them ended up facing disciplinary proceedings in the APS or being cross-examined in a courtroom.
That does not mean that there is not a role for whistleblowers in the APS. There is – in law. Ironically (from Marr’s perspective) it was under the Howard government that the Public Service Act for the first time recognised and provided protection to whistleblowers who seek to report suspected misconduct in the public interest. An agency is not allowed to victimise or discriminate against employees because they have alleged a breach of the APS Code of Conduct. If whistleblowers are dissatisfied with the agency’s response, they can refer their grievance to the Australian Public Service Commission, which has statutory independence.
They do so. Each year complaints are received, for example about people who are alleged to have falsified information or engaged in bullying or harassment. I know, from personal experience, of a whistleblower who reported a manager for wrongly claiming travel allowances. The manager was dismissed from the APS. I know of others removed from the APS for transmitting pornography.
What Marr doesn’t accept is that public servants do not have a moral responsibility or enjoy legal protection for leaking documents simply because they believe the government has got it wrong. Good governance depends upon senior public servants being able to provide ministers with frank and fearless policy advice in confidence. If they cannot do so, ministers – concerned that policy briefs or discussions will be made public by disgruntled public servants – may be tempted to look for advice only from the advisers they can trust. That would serve to undermine the relationship between government and public service, which is the very foundation of the Westminster tradition. It is a recipe for poor public administration. By sidelining public servants, it would politicise decision-making.
This is not a popular position. I thought Marr’s essay was hard-hitting until I chanced upon Mike Carlton’s June 30–July 1 piece in the Sydney Morning Herald. Carlton makes Marr seem mealy-mouthed. My view that public servants should be responsive to the government of the day in serving the public interest would, it seems, have allowed me to send people to death camps and gas chambers. My “paper-clipped view of the world” is “facile bluster.” “Hitler, Stalin and Pol Pot would have applauded that one. Auschwitz? None of your business, dear boy, the government knows what it’s doing. The Gulag Archipelago? The Khmer Rouge Year Zero? Not your moral responsibility, old chap.”
The humour is more offensive than incisive. Believing that Customs should have taken more account of your report on airport security is not quite a matter of Year Zero proportions. Thinking that the government should have been more generous in its proposed increase in funding for veterans is rather different from considering whether to transport them to the Gulag. No Australian public servant can imagine that they are facing such moral challenges.
Of course, some public servants on some occasions may feel that they are so opposed to a particular government public direction that, as professionals, they would prefer not to be involved in that area. In my career I’ve helped people transfer to areas of the public service in which they felt more comfortable. It’s entirely appropriate.
Similarly, and particularly when I was the CEO of the Aboriginal and Torres Strait Islander Commission (ATSIC), I had long discussions with members of my staff who found the demands of professional public service too constraining. For indigenous people, committed to delivering for their community, the need to work to government can prove too heavy a burden. In some cases, following soul-searching, they decided that they could achieve more working in a non-partisan manner within the system. Others, with my full support, decided to move into the community sector, where they could advocate publicly. Both were ethical positions. Leaking is not.
The second article, and in truth the far more intellectually challenging one, was a convocation address given at the University of Leeds in 1978. A thoughtful presentation about the British civil service, it was published in the University of Leeds Review (vol. 21, 1978) as “Power in Government – A Chinese Puzzle.” It was given by a political adviser, namely Jack Straw, who had been president of Leeds Students’ Union in 1967–68 (when, along with his future government colleague John Prescott, I was finishing my undergraduate degree at the University of Hull). By 1978 Mr Straw had already been political adviser to two ministers (Barbara Castle and Peter Shore) and was, at the time of his remarks, Labour candidate for Blackburn. Of course, he went on to become home secretary and secretary of state for the Foreign and Commonwealth Office in the government of Tony Blair and the leader of the House of Commons. He has now been appointed by Gordon Brown as the new justice minister and lord chancellor.
The ABC on Sunday evenings recently ran a BBC production entitled Life on Mars. The story – and I followed it closely – concerned a 2005 police detective, knocked into a coma in a car accident, who regains consciousness in Manchester in 1973. He faces culture shock as he comes face to face with misogyny, racism, violence and corruption, which, apparently, he hadn’t encountered in the modern police force. This is, after all, a work of fiction.
Reading Jack Straw’s address, one is persuaded that going back to the 1970s would probably involve an equal jolt for today’s civil servant. In 2007 the views of David Marr are common currency. The public service is politicised. Its leadership is allegedly subservient to the will of its political masters. The electoral and ideological priorities of party politics are imposed by governments on their public officials. The bureaucrats are manacled. Such are the perceptions portrayed in the media.
Live at Leeds in 1978, the popular concern was the exact opposite: the fear was of bureaucrats reining in ministers. Straw’s address was prompted by a stereotype that “at its upper levels, the civil service is undermining the very foundation of our democracy, by manipulating ministers as if they were puppets, and by ignoring or subverting the will of a democratically elected House of Commons.” The senior civil servants, opined the News of the World, were “the people who really rule Britain.”
Such views were not confined to Whitehall or Fleet Street. Indeed, they were reflected almost exactly in the Antipodes. Gough Whitlam at the federal level and Don Dunstan at the state level were equally concerned at the perceived capacity of senior public servants to subvert political will to their greater experience and conservatism. According to Dunstan, his senior public servants “almost without exception … set out to mould ministers’ views to their own and to manipulate the minister to prevent marked change.”
Straw’s address has the shock of the old to a public servant who now accepts as holy writ the Public Service Act, 1999. An ideal before which I genuflect daily – that the APS must perform its functions in an impartial manner – Straw dismisses as misperceived mythology. He accepts that public servants must be impartial in executing and administering government policy without corruption or favour, through the fair application of transparent rules. But when it comes to providing expert policy advice, the “Service is in fact expected to be highly partial to the government of the day.”
Straw’s point is that public servants necessarily have their own views on public policy, for why else would they have been attracted to work in government? There is nothing wrong with that. Indeed, it is those public servants who openly acknowledge and argue for their cause who best advise ministers, “rather than the grey men who pretend no views and who display an attitude to politics little different from that of a monk’s to sex.” But – here’s the rub – those well-formed opinions need to be tempered by what we now, somewhat cautiously, describe as responsiveness, but which Straw, far more assertively, identifies as loyalty.
This, from the vantage point of 2007, sounds provocative indeed. It is bad enough, from Marr’s perspective, that public servants are responsive to the direction of the prime minister (as, incidentally, is explicitly required under the Public Service Act). That they should aspire to be loyal would almost certainly be deemed to be even more dangerous.
Loyalty carries the connotation of being attracted to another by affection or devotion; of faithfulness, inspired by fond feelings of allegiance. In Marr’s eyes, I am pretty confident, loyalty would be an inappropriate quality on which to build the relationship between the prime minister and his secretary. At first blush, the concept seems at odds with the apolitical independence on which the Australian Public Service prides itself, and which our critics believe we have forsaken. Shackled by contract appointments and induced by the lure of performance pay, we are judged to have sold our souls to executive authority. It is, from this jaundiced perspective, a loyalty misplaced and undeserved.
I beg to differ. Straw’s point – and it is convincingly argued – is that governmental power is highly intricate and diffuse. In this complex milieu, public servants should be open about their views, should present them forcefully, but should always be partial to the decisions of the government of the day. “What seems to be central to the relationship [between ministers and officials] is not some fanciful concept of impartiality,” Straw told his audience, “but whether officials are willing loyally to serve a government even where its views are very different from their own.”
Loyalty, as I interpret it in this context, is not subservience. It is devotion to the notion of representative and responsible government. It is faithfulness to the institutional framework of democratic governance. It has the character which Mark Twain ascribed to it in A Connecticut Yankee in King Arthur’s Court: “the citizen who thinks he sees the commonwealth’s political clothes are worn out, and yet holds his peace and does not agitate for a new suit, is disloyal: he is a traitor.”
Loyalty, from this perspective, is not unthinking fealty or begrudging silence. It is not symptomatic of the corruption of public debate or of the undermining of standards of governance. Rather, it is the willingness of a departmental secretary to argue her or his opinion frankly and fearlessly; to do so confidentially; and, when a decision is made (as it is appropriately made) by government, to accept it and to execute it with determination. It is loyalty to the challenging discipline of a public service in thrall only to the principles of democratic governance. It is partiality not to political party or to a particular prime minister but to successive governments, each of which will be served with equal dedication. It is the loyalty of public service, born not of weakness but of strength of conviction.
Peter Shergold is the secretary of the Department of Prime Minister and Cabinet.
This correspondence featured in Quarterly Essay 27, Reaction Time.
ALSO FROM QUARTERLY ESSAY