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Wednesday, 16 February 1977


Mr WILLIS (Gellibrand) -The Bill now before the House introduces a formalised system of appointment of First Division officers in the Public Service. It prescribes ways in which some permanent heads can be removed from their position and it prescribes limited tenure of office for some permanent heads. An interesting aspect of this legislation is that the Government has found it necessary to introduce it at aU. In so doing it has gone beyond the recommendation of the Royal Commission on Australian Government Administration- the Coombs Commissionwhich concluded that such legislation would be unnecessarily inhibiting. One must then ask: Why is the Government introducing this legislation which the royal commission which studied Australian Government administration said was not necessary? The answer seems to be that before the royal commission reported in 1976 the present Prime Minster (Mr Malcolm Fraser) promised in November 1975, that is, in a pre-election period, that such legislation would be put before the Parliament by a Liberal-National Country Party government. This, of course, was in the context of making political mileage by asserting that the Labor Government had in some way or other transgressed proprieties by appointing as permanent heads a few highly qualified and competent persons who had been associated with the Labor Party. Thus the Government's motivation for this legislation is political rather than based on practical requirements. For that reason, if for no other, it is opposed by the Opposition. In fact, there are many aspects of this legislation that we find disagreeable and which provide a further basis for our opposition. The Public Service Act as it now stands enables permanent heads to be appointed on the recommendation of the Public Service Board or, alternatively, they may be appointed by the Governor-General without reference to the Board. In practice the Prime Minister and the Minister of the department concerned consult the Board and recommendations are subject to Cabinet approval before being submitted to the Governor-General. At least that is the way things operated until the Fraser Administration took over. I cannot say for sure whether that practice is still being followed.

The Royal Commission recommended that a set procedure be adopted which would still have left the power of appointment finally to Cabinet as has been the practice. It recommended that the vacancy be first advertised; that a panel be nominated by the Prime Minister and the Minister concerned, after consulting the Chairman of the Public Service Board to nominate a short list of suitable persons; that Ministers have the right to nominate a potential appointee for consideration by the panel; that the Chairman provide a short list in order of preference of potential appointees to the Minister concerned and the Prime Minister; and that the Minister and Cabinet approve the ultimate selection. It also recommended that these procedures should be used to review existing appointments of all departmental heads who had served as head of a department for more than 5 years. It was strongly of the opinion that 5 to 7 years was quite long enough for a departmental head to serve without review of his position and that in general he should be relocated in another department after that time.

The Bill now before the House, however, ignores these sensible recommendations. Instead it introduces a formalised system that is a bureaucrat's dream. Indeed, there can be no doubt that this Bill has been drawn by the First Division officers in such a way as to maximise their own security and preserve their power. It introduces a 2-tier system of permanent heads in which the bottom tier will consist very much of the poor relations. At the upper level there are to be established candidates or established permanent heads who will almost invariably be career public servants and who will enjoy the advantage of security of tenure. On the lower level there will be non-established candidates or officers who will have no more than a 5-year appointment and who will be subject to dismissal on a change of government. These officers will be those who will be appointed although not endorsed by what the Prime Minister described in his second reading speech as 'due process'. That term 'due process' is a complete misnomer, in our view. The Bill lays down a procedure for nominating persons as being suitable for appointment as a permanent head and it is that procedure which the Prime Minister describes as due process'. This gives it far more respectability than the procedure is entitled to receive.

The procedure is drawn up so as to institutionalise what we may describe as the old boy network. It gives the power of selection formally and definitely to those who usually exercise it already. It does this by providing that where a vacancy occurs the Chairman of the Public Service Board shall make a report to the Prime Minister as to suitable candidates and that in addition, after consulting the Prime Minister, he shall appoint a committee to prepare a report on suitable persons for that vacancy. The other members of the committee must be permanent heads too, thus ensuring that it is all kept in the club. It is open to this committee of top level public servants to recommend a non-public servant as being suitable for the position but in practice such a committee will rarely, in the vast majority of cases, do other than protect its own by appointing someone from within its exclusive circle or someone it feels would fit comfortably within that circle, who is most likely to be a public servant. It is in our view a major weakness of this Bill that although it implicitly concedes that outsiders may have something to offer the service it does not concede that they have anything to offer the selection process itself. Outsiders are given no role in the selection process despite the fact that outside specialists may well have something to offer in assessing the claims of persons outside the service.

It is not clear from the Bill whether nonestablished heads of departments can be members of the selection committee convened by the

Chairmanof the Board although, as I read the Bill, it seems that they can be included. If so, this could in theory bring into the committee someone from outside the privileged group of established heads of departments, but in practice it is not likely to make much difference. The Chairman of the Public Service Board determines who is on the Committee and he is more than likely to ensure that the committee is comprised of members of the upper tier of permanent heads. Another matter for objection in this Bill is that the powers exercised by the Chairman of the Board are in our opinion excessive. He has powers quite independent of the Prime Minister, the Minister concerned, or the Cabinet as a whole and although the final selection rests with the Prime Minister the process of determining an established head of department is very much in the hands of the Chairman of the Board. He submits a personal report to the Prime Minister as to suitable candidates for appointment so that his personal preferences are made quite clear to the Prime Minister. Furthermore, he is also required to appoint a selection committee to report on suitable candidates and in appointing that committee he is required to consult with the Prime Minister only in regard to its composition. He determines its membership. As the Bill stands he therefore has determinative powers as to the composition of the committee and so can select those whose views most accord with his own and there is nothing that the Prime Minister or the Government can do about it. The Chairman can also appoint additional members to the committee at any time and in so doing he is again required only to consult with the Prime Minister.

This vesting of power in the Chairman of the Board is of real importance for it means that he effectively controls who is or who is not an established permanent head. That, of course, assumes real importance in relation to the security of tenure that applies to a permanent head. If a Prime Minister or his Minister wants someone to be appointed as a permanent head but the Chairman of the Board disapproves of that person he cannot stop the appointment of that person but he can stop his appointment as an established permanent head. The person who is appointed is therefore subject to the strict limitation that applies under clause 54, that is, appointment is only for a period not exceeding 5 years and he is subject to dismissal on a change of government. We consider that the vesting of such powers in the Chairman of the Board to be excessive and it is an important ground on which we oppose this Bill.

We also oppose another aspect of the appointment procedure, that is the provision that after the selection committee appointed by the Chairman has investigated and reported to the Prime Minister on suitable candidates and after the Chairman has made his own report to the Prime Minister, the Prime Minister may then require that the position be advertised in the Australian Government Gazette and such other daily newspapers and publications as the Chairman thinks appropriate. After all the investigation and reporting has gone on- after the Chan-man has reported and the committee has reportedthen the position may be advertised. This surely is a curious procedure. It seems to be designed to ensure that outsiders get the least possible chance to be nominated as is the case with the rest of the procedure.

As I mentioned earlier, the Royal Commission recommended that the first step in the selection procedure should be to advertise the position wherever circumstances allow. The procedure for which this Bill provides is exactly the opposite. Advertising comes in only as a final phase in the procedure if the Prime Minister feels dissatisfied with those nominated to him by the selection committee and the Chairman of the Board. Such a procedure does not guarantee, as the Prime Minister claimed in his second reading speech, that the chance of making the best possible appointment is increased. How does the Prime Minister know whether the best possible person has been nominated when the position has not been advertised and possibly the best person has not been nominated or even considered?

Apart from our many objections to the procedures for appointment contained in this Bill we are also very concerned at the discriminatory treatment that applies to so-called nonestablished officers compared with established officers. We do not object to the lack of security of tenure for the non-established officers. Rather, we consider that, as the Royal Commission said, all permanent heads should be subject to review after 5 to 7 years. Instead, this Bill leaves them cosily ensconced in their privileged positions. Why should anyone who exercises the power that these people exercise be free from review? Members of Parliament are certainly subject to review. Ministers of departments certainly are. Why are not all departmental heads who exercise power to a degree little below that of Minister -perhaps in some cases rather more than that of Ministers- subject to review? In a democratic society no one should, in our view, be able to hold power indefinitely without being subject to automatic re-appraisal. Indeed, it is interesting to note that the royal commission found that departmental heads considered that 5 to 7 years was enough time in one department and that it was then time to move on. However, there is nothing in this Bill which provides a limitation of tenure for established permanent heads. That, in our view, is a major weakness of the Bill.

Finally, I wish to draw attention to the erosion of power of Ministers, particularly Cabinet Ministers, under the Bill. As I mentioned at the outset, the prevailing practice under the current Public Service Act has been for the Minister concerned and the Prime Minister to consult the Board and for their recommendation to be approved by Cabinet before being submitted to the Governor-General. Under the provisions of the Bill now before the House the specific power is given to the Prime Minister to make the appointment. The Minister concerned and Cabinet have no final say. Furthermore, the Minister concerned gets into the act only after the Chairman and his Committee have made their recommendations as to suitable candidates. The Minister concerned then can ask the Chairman and the Committee to consider whether a particular person or persons who are not listed in the report as suitable candidates should be so listed. He can also ask them to see whether there might not be other unspecified persons who could be listed. The Chairman and the Committee must then comply with the request and report accordingly. But that is the extent of the Minister's involvement. He can suggest names if he does not like those which have been thrown up in the first place or ask that others be considered. Whether or not they are depends on the Chairman and on his Committee. The Cabinet has no say at all under these procedures. All final power resides in the Prime Minister. So Ministers individually and collectively, in the case of those who are Cabinet Ministers, lose the considerable powers they have in this area under current procedures.

We do not support this erosion of powers of Ministers and Cabinet to determine who becomes a permanent head. The procedures suggested by the royal commission would have safeguarded those powers. The Minister concerned, with the Prime Minister, would have a right to nominate members of the selection committee. He would have a right to suggest particular names for consideration by the panel before it made any recommendations. He, along with Cabinet, would approve the ultimate selection.

This Bill can be satisfactory only to a small group of Public Service mandarins who obtain great power to maintain their exclusive preserve for those of their own ilk. It is perhaps satisfactory also to a Prime Minister who wishes to see his Cabinet and ministerial colleagues stripped of power to determine their own chief executives. The Bill is certainly not in the best interests of the good administration of this country. We therefore strongly oppose it.







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