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Inquiry into members of parliament staff

ACTING CHAIR (Senator WATSON) —Mr Podger, welcome to the committee. We appreciate your contribution. I presume you understand the rules: that you are protected by parliamentary privilege. Do you wish to make an opening statement?

Mr Podger —If you do not mind, I would like to make a few comments picking out some of the points in my submission. The submission is set in the context of substantial change in public administration over the last 25 years and, in particular, on increasing emphasis on responsiveness as well as efficiency, effectiveness and outcomes in public administration. The corresponding move to more devolved flexible and values based arrangements has, however, been based on a continuation of the traditional and enduring Public Service attributes of being apolitical, impartial, professional and accountable and also of merit based decision making. As noted in my submission, I see the increasing role of the ministerial advisers as one of the means by which public administration has become more responsive to the elected government. The role that advisers play has helped to preserve the apolitical nature of the Public Service, and I note that Dr Shergold also mentioned that before the MOP(S) Act of 1984 there had been suggestions of an alternative approach whereby some senior executive service people would be appointed through a political process.

While the role of the advisers has preserved the apolitical nature of the Public Service to some extent, it has raised challenges for the critical relationship between public servants and ministers and their offices. Successfully addressing these challenges and establishing a constructive relationship of trust between the Public Service and advisers requires a sound understanding of their respective roles and responsibilities as well as a spirit of cooperation and good communication. The creation of a separate employment framework both recognises and reinforces the different roles and responsibilities concerned and is a key protection of the apolitical nature of the service.

Many Westminster based jurisdictions do not have such a clear and separate employment framework for ministerial advisers. My submission refers to a number of other jurisdictions' arrangements, including those of the UK, where the status of special advisers as temporary civil servants has been seen as problematic by some people. The Committee on Standards in Public Life, chaired by Sir Nigel Wicks, has, for example, recommended that special advisers should be separated out as a category of government servant distinct from the civil service. The committee also recommended a clearer statement of what special advisers cannot do and a stronger statement about their lack of executive powers.

Another important facet of our arrangements in Australia is that the role of advisers is essentially one of support and facilitation and not delegated authority. Advisers provide important guidance about the minister's policy and wishes and, by doing so, help APS employees to be responsive. However, they do not have legal authority to direct Public Service employees. The Prime Minister's A Guide on Key Elements of Ministerial Responsibility implies that ministerial advisers are essentially extensions of their ministers. On this basis, advisers are directly accountable to their ministers, and the ministers accept accountability for the actions of their advisers. This is an important point to remember when considering issues of public scrutiny and accountability.

As I put in my submission, to the extent that advisers do have delegated authority and are not just extensions of the ministers, the case for executive privilege may be weaker and the case for more direct scrutiny and accountability may be stronger. There are, however, a number of options available and the issues involved will need very careful consideration by the government and the parliament.

On the broader issue of the role and functions of ministerial advisers, it is important to recognise that these may not be amenable to a tight definition—the evolving nature of the role and the slightly different approaches under different governments over the last 30 years illustrating a continuing degree of fluidity. The Prime Minister's guide provides some clarification of their roles and responsibilities, and advises both ministers and advisers on personal ethical behaviour, as a code of conduct might do, particularly about declaring and avoiding conflict of interest.

While I would caution against a highly prescriptive approach, there may be benefit in drawing on aspects of the 1999 reforms to the Public Service and the Parliamentary Service to articulate values and principles that clarify key relationships and behaviours and to review the code of conduct now implicitly set in the Prime Minister's guide. I believe this could help promote professionalism amongst what has become an important component of the executive arm of government.

In my submission I referred to two key documents being developed by the commission relating to the application of values to Public Service employees. One of these documents was a revision of the guidelines on official conduct last issued in 1995 relating directly to the values and code of conduct in the Public Service Act and providing practical guidance to help APS employees make appropriate judgments. The other document was a good practice guide to agencies on embedding the values, based on studies of management systems and procedures in six agencies. I am pleased to inform you that these products were released last week and I am able to provide them to the committee. The committee may be particularly interested in the advice provided to promote appropriate and close relationships between the Public Service and ministers and their advisers.

CHAIR —Thank you. I will pick up where I left off with the previous witnesses, Dr Shergold and Dr Watt, and that was in regard to the recommendations of the report on a certain maritime incident, which, one, recommended that an inquiry of this nature take place and, two, recommended that a working group be established, convened by you. I take it that you are not able to act upon those recommendations, pending the government's response. Or do you see yourself as having the ability to take an initiative of that sort yourself, irrespective of whatever the government's views might be about the committee's recommendations?

Mr Podger —Because I do not have any direct statutory responsibility in the area of advisers, I think it would be inappropriate for me to just volunteer advice on that. I think that is a matter for what the government's response is to the parliamentary committee's report. I have provided advice to the Prime Minister's department around what that response might be. I have, as I have said, done some further work in the area of my statutory responsibility—that is, in promoting the APS values and code of conduct to public servants and, in particular, their responsibilities in the relationship with ministers and ministerial advisers.

CHAIR —On page 10 of your submission you say:

As a number of senior Public Servants have stated, ministerial advisers have been a protection against the politicisation of the Public Service.

And in a footnote you indicate who those senior public servants are. You are of course aware that a number of former senior public servants—for example, John Menadue and Mr Barratt—have had the opposite view: that there has been politicisation of the Public Service, and they particularly refer to the noted issues surrounding `children overboard' and, more recently, intelligence advice or non-provision of advice from the ONA to the government. I give you the opportunity to respond to those criticisms. These criticisms have been made by people who have had a long experience in the Public Service previously.

Mr Podger —Certainly there have been differences of view—as there always will be amongst any group of experienced public servants, current and past. While I have seen some of the reports of the views of Mr Menadue and I have seen Mr Barratt's submission to this inquiry, the point I was making in my opening statement is that I think the introduction of ministerial advisers has, in a structural sense, helped to protect the professionalism and apolitical role of the Public Service. But there is also a challenge in making the relationship between the Public Service and ministers and their advisers work well. I will say something about that in general terms. This issue of the intersection of politics and administration has always been at the centre of debate in public administration. For 100 years it has been the key issue in any part of the literature on public administration.

Senator MURRAY —It goes back a bit further that, too.

Mr Podger —It relates to the balancing of critical principles, the responsiveness of the Public Service to the elected government—that is, the democratic principle that we must abide by—along with the apolitical professionalism of the Public Service. These principles are, for the most part, complementary, but sometimes they are in tension. I believe that the intersection has become more acute in the last 15 years or 20 years than it was in the past. If you look at the pressures on ministers and on governments from the media, a better informed public, better resourced interest groups and so on, you see that that pressure has increased a great deal. And the management of the political side has become a much more professional issue in the last 20 years, in my view.

On the other side of the equation, the pressures have increased as well. The Public Service is much more transparent than it was before. The panoply of the openness to decision making, the administrative law arrangements and freedom of information processes and the Ombudsman—all those sorts of pressures—within the Public Service has added to their requirements to be impartial and to be able to justify a professional set of decision making. Both sides have had added pressure in the last 20 years and, not naturally, the intersection raises a few more acute challenges than would have been the sorts of experiences that some of the commentators from the past have experienced.

CHAIR —On page 13 you discuss executive privilege and on page 14 you state:

To the extent that advisers have delegated authority and are not just extensions of their Ministers, the case for executive privilege may be weaker and the case for more direct scrutiny and accountability may be stronger.

You highlight the phrases `have delegated authority' and `are not just extensions of their ministers'. That indicates to me that you believe that that actually happens—that ministerial advisers are exercising delegated authority and are not just extensions of the minister. That runs counter, I would suggest, to the belief we have heard this morning that, at the end of the day, the ministerial adviser is always acting on behalf of the minister. What is your response to that?

Mr Podger —I do not think so. I think, in fact, the whole—

CHAIR —What is your understanding? What do you mean by having `delegated authority'?

Mr Podger —The thrust of the argument in the submission is to reinforce what I regard as being important—that is, that the advisers do not have legal authority. They cannot direct public servants. They do not exercise legal delegations. If that is so, the argument for them to be held directly accountable and appear before committees is reduced. If, however, they start to exercise a separation from ministers, the issue of their direct accountability to parliament becomes a much stronger argument. In the material we provide in guidance to public servants we do mention quite clearly—and Dr Shergold quoted from the Prime Minister's guide—that advisers cannot direct APS employees. That is mentioned there. Of course, in day-to-day arrangements they will be advising public servants of what the minister's views are. They will be saying, `The minister needs this or wants that.' That, for the most part, will be exactly right, and the system will move smoothly on the basis of trust and understanding that that is exactly so. Where there are questions and where it may not be so, public servants have a duty to test that. If they are not sure, they have a duty to test: `Is this with ministerial authority or not? Was the minister's direction well informed or not?' Those are the sorts of issues I believe a professional public servant should be pursuing. I do not regard passing on views from the minister or asking for things to be done for the minister as delegated authority.

CHAIR —I did not think you did, but what seems to come through in your comment is that you believe there are, or have been, situations which would give rise to a belief by a public servant that an adviser is potentially going beyond their authority. Is that the case?

Mr Podger —From time to time there will be differences that need to be resolved and clarified. That is the nature of these critical relationships. Most senior public servants go out of their way to form a good personal relationship with advisers and to make sure it is one of trust—and a very constructive one. I believe that does happen. But there will be occasions, perhaps when there is a sense of urgency on an issue, where there will be issues to be resolved and questions raised. This is not something new; this issue has been around, in my own experience, under a number of governments.

Senator MURRAY —Mr Podger, just remind me: is there a specific provision in the MOP(S) Act that ministerial advisers do not have nor can they exercise delegated executive authority?

Mr Podger —I am not aware of a specific provision in the act, no.

Senator MURRAY —I could not recall it either. That might be one way of clearing up a grey area, because both your predecessor as a witness, Dr Shergold, and you have emphasised that that is the practice and intent.

Mr Podger —That is one option I suppose. In my submission I have indicated a preference for a less legal approach which is via a code of conduct arrangement and a set of values. I wish to clarify something: when I look at values in a code of conduct, values are about relationships and personal behaviours. A particular part of the values in the Public Service Act are to do with our relationships with ministers and the parliament. I see some advantages in a parallel arrangement for advisers, one of which would be to reinforce their appreciation of our legal obligations to be apolitical, professional and so on and our accountability requirements. That complementary set of values would reinforce an understanding of the relationship.

Senator MURRAY —Do you think there should be a provision in the Prime Minister's guide or in some protocol format for there to be an ability for people in the Public Service to formally report any adviser who seeks to exercise or does exercise executive authority or administrative authority? I do not think there is any in practice at the moment.

Mr Podger —I would caution against too legalistic an approach in what has to be a good working relationship. Certainly, in our advice to public servants we talk about ways in which to resolve differences if there are differences. Such differences are not frequent but they do occur. As Dr Shergold said, you would expect it to be handled either directly between the public servant and the adviser to try and settle it there or the public servant would go up the line in some way to resolve it. We mention in our guidelines extreme situations where it may have to be raised outside the portfolio. That is an extreme situation; I have not directly experienced that myself.

Senator MURRAY —One of the difficulties that I and a number of my non-government colleagues have is our experience of the relationship between advisers and the public sector. The reality is of the exercise of executive authority on behalf of the minister in specific circumstances. By and large that works perfectly well in the design of legislation, the decisions over what changes shall be made to bills and that sort of thing. It is quite practical. But at times it can raise real dangers. If the chief of staff of a minister rings a middle-ranking public sector person who perhaps is not familiar with all the nuances of both the Public Service Act and the MOP(S) Act, they are likely to obey the command because they will see it as a command.

Mr Podger —The issue only arises if the command was not authorised—that is, that the command from the adviser was not consistent with what the minister wanted. Ministers will use their advisers quite extensively, given the workloads they have got, to manage a great deal of the relationship with the department, including down the line. The issue arises if there is a question of that instruction actually having ministerial authority—and that is of concern. What we would advocate within the Public Service is good practice within departments and, where there is a question mark, it will allow that to be raised without undermining the relationship of trust and cooperation. These things only occur on occasions, but there has to be a process for handling that. When it is handled and if the adviser was issuing an instruction that did not have the authority of the minister, it will be resolved.

Senator MURRAY —The difficulty the parliament has through its committee system is that there is no mechanism for determining whether the adviser acted with or without the minister's authority. If a minister claims they did not know such a thing happened, you cannot test it. You can test it with the Public Service because its officers will come before committees and will subject themselves to examination. That is the difficulty we face. So, unless you are prescriptive about what they may not do in law, you end up with these grey areas.

Mr Podger —There will always be some grey areas.

Senator MURRAY —I accept that.

Mr Podger —I guess the thrust of my submission was to try to limit those grey areas by clarifying that there is not executive authority; that their authority derives from the minister and that they are exercising it on behalf of the minister and that, where there is a question, we can go back to the minister to confirm an instruction. There is of course in practice, given the numbers of advisers and the degree in which they are operating, occasions where a minister does not know exactly what an adviser has done and, hence, there is this issue about whether, because the minister does not know the minister should not be held directly accountable. That is a difficult issue to resolve. Whether you need to have some firm rules about that, I am not sure. In the case where a minister says, `I was not aware that my office was told,' it is not as if the minister is not held in some way politically responsible. It is not as if the system does not pass on some of the opprobrium associated with that. The issue is: is anything more required? I think that is a matter for debate here rather than accepting my views. I think there is political process that does not necessarily require a legal answer.

Senator MURRAY —Your submission and your evidence today have indicated that the nature of the political/governmental interchange in other countries and here is changing all the time and requires new processes and new ways of management to be continually introduced to adjust to greater scrutiny, greater transparency and greater demands for accountability. You have just said effectively that—and I think it is a practical consequence—ministers have less responsibility for the actions of others than they used to. That implies to me more responsibility on behalf of the others, and that requires them to be accountable. My question is: if other jurisdictions—United States, United Kingdom, Canada and Queensland, as I understand it—are moving to be more prescriptive, should we automatically reject that route?

Mr Podger —I have not suggested that we automatically reject that route. Indeed, I have clearly suggested that there would be advantage in some statement of values and a code of conduct. I personally believe that that would be beneficial for public administration generally. What I am expressing caution about is how legalistic one would be about that. When you look at the United States, of course, you are talking about a large number of executive appointments of people who have delegated authority. It is quite different. There you are not talking about ministerial advisers; you are talking about the broader executive arm of government and the equivalence of our ministers and senior public servants who are partisan political appointments exercising congressional powers, if you like, through their laws. We are not talking about that here.

Senator MURRAY —But we are talking about the personal staff of government numbering, rounding it off, 372 at present, of which you might regard the very top echelon in status terms as ranking with the very highest members of the public sector. They carry great moral authority.

Mr Podger —I am not sure what the question here is. All I am saying is that I would be a bit cautious about how legalistic the response is. But I am certainly saying very firmly in the submission and here today that there would be some advantage in some statement of values and a bit more about a code of conduct. My purpose in putting that is to raise the professionalism, if you like, of ministerial advisers who now play a much more important part in public administration than 20 years ago. It is not to try to constrain their role unduly; it is in fact to recognise it and to give it a stronger professional footing. The professionalism of advisers has increased over the years, but I would like to see that taken a bit further.

Senator MURRAY —The question I intended to put at the end of that introduction was in relation to my belief that the upper echelon, as I call it, of those government advisers is moving towards expressing greater authority in the system, along the lines that are occurring in other countries around the world, such as the United States. From what people have told me of how it was and how it is, my understanding is that that is happening, in the same way as you have just outlined how the nature of the public sector and the executive authority has changed over the last 20 years. Perhaps in the end the question is: if we accept that proposition, does self-regulation have to be accommodated by additional constraints or prescription in the law? If so, what kind? My opening question posited one of those kinds.

Mr Podger —I am not too sure I can add much more to what I have said, other than to draw attention to the point I raised in the submission about the importance of executive privilege. The good operation of the executive arm of government does require a considerable degree of confidentiality around the minister, which is most obvious with the ministerial advisers, but it is also obvious in the relationship with the Public Service. The Public Service has adjusted over the last 25 years to the panoply of administrative law which has opened up and made more transparent its processes. I am thinking particularly of things like freedom of information legislation and also the processes of the Senate committees. But we have, nonetheless, within that adjustment, tried to preserve this important executive privilege, which is necessary for governments to be able to take considered decisions in the public interest.

Senator MURRAY —Which the Americans retain, despite the fact that their officers are still required to appear before congressional committees. They claim executive privilege when they appear before those committee in certain sectors.

Mr Podger —I touch on that in the submission and say that, in the event that the government and the parliament wish to open up so that advisers would appear before committees—and I hasten to say that that is not what I am recommending, but if you wish to go that route—you would have to look very carefully at how to manage that. We do have some guidance from committees to public servants on that. I think you would have to enunciate stricter rules in terms of limiting what an adviser would have to answer if you are going to maintain executive privilege. I have not gone into any details on that, but I think that would be an issue you would have to look at very carefully.

Senator MURRAY —Thank you, Sir.

Senator WATSON —Major General Stretton appears to take the view that the increasing importance of the role of advisers, as evidenced by ministers' refusal to allow their political staff to be called before parliamentary committees, has resulted in an erosion of the power of the parliament in recent years. Would you like to comment?

Mr Podger —I am not quite sure I fully understand the argument. The parliamentary oversight of the executive is exercised in both chambers and through the committee processes where public servants appear, so I assume the argument is because there is a lot of activity within the executive arm, within the ministers' offices, that in years gone by may not have happened in ministers' offices but might have happened elsewhere. I understand the argument, but I guess my point in the submission is that I do not think that argument is all that strong if we clarify, as I think the Prime Minister's guide has—and we have in the guides we have given—that the advisers do not exercise legal authority. I think that is the point. If they did, I think there would be an area of concern.

Senator WATSON —But I think Major General Stretton makes the point that, with the increasing role and apparent responsibilities of ministerial advisers, this in a sense has resulted in an erosion—to use his words—of the power of parliament, in terms of their ability to question and in terms of accountability.

Mr Podger —I do not think I can comment any further than I have on that, Senator.

Senator WATSON —There are two views, and I think there is some relevance in terms of what Major General Stretton has raised, because of their increasing prominence and importance within the system, that parliament perhaps has been denied some opportunity for questioning.

Mr Podger —This issue has of course been argued in this place over particular issues, such as a certain maritime incident and whether or not advisers should be called. If I look more generally—

Senator WATSON —It is far wider than that.

Mr Podger —If I look more generally, I would have thought that the transparency of what happens within the executive arm of government and the access of parliament to information about that has increased substantially, not decreased, over the last 20 years.

Senator BRANDIS —I suppose the problem, Mr Podger, is that, if a ministerial adviser is to be treated as the alter ego of a minister and to be exercising his authority for all customary purposes, one could say that nothing that the adviser does is something for which the minister could not be held accountable. However, if the minister is able truthfully to say, `I wasn't told about a certain fact by an adviser,' you get a Chinese Wall situation; so that, whereas the minister is at one level accountable for anything done in his name, if the question is about what the minister knew, he may, although accountable, not be culpable. I suspect that is sort of the point that Major General Stretton is making, but we will develop that with him. Would you care to comment on that?

Mr Podger —I think that is a good presentation of it. If the minister is not culpable but is still to be held accountable, he can still say, `I didn't know,' and then the political process—

Senator BRANDIS —Truthfully say, `I didn't know.'

Mr Podger —That is right. And the political process will end up working out what level of criticism the minister has to bear on that. To turn around and say that, because of that, necessarily the adviser ought to appear before committees, is a step that I would not say is necessarily right. I think there are political processes here that do not entail that. I can see that, if it became the norm that ministers were forever saying, `I didn't know that'—and it happened all over the place—and all sorts of advisers were exercising actions independent of the minister, the situation would be different.

Senator BRANDIS —Mr Podger, I agree with you. I do not favour compellability of—

CHAIR —Senator Brandis, do you have a question?

Senator BRANDIS —I am going to ask for him to comment on this. I myself do not favour the compellability of ministerial staff, and I was a dissenting member of the certain maritime incident committee. I think the distinction you have drawn, Mr Podger, between dealing with this at a governmental or institutional level on the one hand and the minister being judged at the political level on the other hand is a useful distinction. Perhaps therein lies the answer.

Mr Podger —Clearly there are going to be differences of view on this. I guess my purpose in raising that was to ensure that there is an elucidation of this and a teasing out of the points before the committee comes to its own conclusion.

Senator CARR —Mr Podger, it is good to see you again. In terms of the discussion I had this morning with Dr Shergold, I am interested in pursuing the question of the relationship between ministerial advisers, ministers' offices and departmental officials. Both you and Dr Shergold have emphasised the importance of ensuring that the healthy relationship is based upon an understanding of the different roles—I think that would be a fair description of both sets of evidence we have heard today—and also the importance of ensuring that there is robust policy advice that is non-partisan coming forward from the Public Service. It is on that theme that I am pursuing these matters. I would like to go to a few examples that occur to me where the practice may be somewhat different from the theory.

Firstly, the issue of the responsibilities of ministerial staff hinges on whether executive authority is in fact exercised—that seems to me a critical issue—and how we respond. This committee arose from consideration of the certain maritime incident issue—that is, the `children overboard' affair. Page 71 of the report of that committee specifically talks about the pressure being mounted by ministerial officers to ensure that certain photographs were released for public purposes. I will just refresh your memory on that particular matter. The report goes to the issue of the Prime Minister's press officer, Mr O'Leary, advising Minister Reith's press officer, Mr Hampton, that there was a need to have urgent clearance of certain photographs that the Prime Minister had referred to in a press conference earlier on the day of 10 October. The report said:

This backdrop appears to have led the Minister to seek immediate authority to release the photographs from the Chief of Defence Force, rather than to go back through the official Defence clearance process. It also appears to have led Mr Hampton to neglect or downplay the concern expressed by Brigadier Bornholt, Military Adviser, PACC, that the photographs might not depict the events of 7 October at all.

The report goes on to say:

Mr Hampton had contacted the Brigadier's Staff Officer, Captain Belinda Byrne, early in the afternoon of 10 October seeking information about how many children were among the 14 manoverboards from SIEV 4.

When Captain Byrne relayed the information that this may not have occurred at all, the ministerial officer:

... `was agitated and told her that there were photos of children in the water'.

Further, an attempt was made by a ministerial adviser to directly contact the commander of the RAN vessel. All of this seems to me—and I ask your view on this—to be evidence of a case whereby staffers are seeking to exercise executive authority.

Senator BRANDIS —Mr Podger, before you answer that it should be made clear to you that Senator Carr has been reading not from the evidence but from the extremely controversial and contested conclusions of the majority. He said it was the report. It was not the report; it was the majority report.

Senator CARR —Sorry; I am reading from a document—

Senator BRANDIS —You are reading from the majority report. You are not reading from the evidence. Those conclusions were extremely heatedly contested, so that is a partisan set of propositions you have just put to Mr Podger.

CHAIR —Senator Brandis, you have made your point. I think Mr Podger understands the question, and I assume he understands that Senator Carr was reading from the report.

Senator BRANDIS —The majority report.

CHAIR —He was reading from the report.

Mr Podger —I would prefer not to get involved in the details of that particular case, because there is such a political debating point about what did or did not happen and what conclusions to draw. I will pick up some aspects which, however you wish to view the material about that incident, I think are amongst the lessons that the Public Service needs to draw. I was interested in Peter Shergold's comment this morning—and I have heard him raise this before, particularly in private forums—that in advising ministers, particularly when things are required urgently, we need to clarify where the information being provided has been proved and where it is still subject to processes of checking. That is one of the lessons Dr Shergold has been passing on which I think is a useful one.

Senator MOORE —Can you repeat that? I am sorry, but I missed that argument.

Mr Podger —When one gives advice to a minister and one adds what the facts are, one should clarify which of the so-called facts are known and which are yet to be properly verified. Dr Shergold has particularly talked about that as being relevant to his department and other departments during the Iraqi conflict situation. He was very much of the view that, when advice was going forward, there was a need to clarify where the intelligence was firm and where it still required more verification.

Senator MOORE —So that is the status of the information?

Mr Podger —It is the status of the evidence lying behind the advice provided. I think that is a useful lesson to take from the CMI episode.

Senator CARR —I appreciate that. The question arises as to whether or not advisers have exercised executive authority. That is the nub of the matter. In my reading of the report, that is an example of how departmental officers have been confronted with a situation where ministers' officers have sought information which has not been properly checked, and have demanded it immediately. Where they could not get it, they kept going through the system to the point where they sought to actually approach the commander of a naval vessel, which by any stretch of the imagination is way outside the normal Public Service processes. Is that not an example you might put of executive authority being exercised?

Senator BRANDIS —If it were true.

Mr Podger —I do not know the details of all that—although I have obviously read it—but let me make what I think is an important point: was the adviser, in making whatever request the adviser made, doing so on behalf of the minister?

Senator CARR —That to you is the critical issue?

Mr Podger —That to me is the critical issue. If in fact a Public Service employee has an instruction from an adviser where there is no doubt at all that that is what the minister's view is, then the Public Service employee will do it. You can call that exercising executive authority; I do not. I see that as being the adviser acting on behalf of the minister. The issue arises when there is uncertainty about whether that is the minister's wish.

Senator CARR —That is right, and this is a case in point.

Mr Podger —The other issue can arise where it is the minister's wish, but the public servant knows that the minister's request may not be a well-informed one. There can be occasions where a clear direction is coming down but it is the duty of the public servant to say, `I'm not too sure that that instruction, that decision that the minister has taken, is based on all the facts, and it is my duty as a public servant to go back and say, “Can we check that the minister was well informed when taking that decision?”`

Senator CARR —That is right. In the circumstance where a minister wants information immediately, that would tend to act as a frustration of the minister's will, would it not?

Mr Podger —I am sorry. Could you repeat that?

Senator CARR —The public servant may ask whether or not the minister has made a decision based on reasonable grounds when the minister wants information immediately which may not have even been checked and may be outside normal Public Service processes. The very fact that the public servant asks for a clarification may well be seen as frustrating the will of the minister.

Mr Podger —It may be, but a constructive relationship—where the advisers and the Public Service understand their complementary roles—should allow a public servant to ask that question or indeed to seek counsel from the secretary or whoever about the request.

Senator CARR —In the values and code of conduct document which you released last week, which I have had the opportunity to look at, I notice there are some 20 additional pages of material. There are quite significant changes to this document.

Mr Podger —There are significant changes in content and in particular areas where there have been developments over the last 10 years, which we felt we needed to address.

Senator CARR —I think there are about 20 additional pages, give or take a page here or there, but there is a significant change in the document. You emphasise the question of the importance of trust in the relationships.

Mr Podger —Indeed.

Senator CARR —Do you think that it is necessary to emphasise that now? Have there been circumstances that have led you to the view that there needs to be a greater emphasis on those issues?

Mr Podger —No. I think the issue of trust has always been important. You can look at this in the context of the big change of the last 20 years or so, which has been to improve the responsiveness of the Public Service to the elected government. You can see that through a series of changes, starting off following the Coombs royal commission report and then subsequently. But, in looking at that, it is important that public servants understand that issue of trust and cooperation and not feel as if they have independence of the government of the day. I have highlighted in a number of speeches I have given that the values of apolitical professionalism and impartiality do not include independence. We are in fact responsive. The issue of emphasising trust is part of the Public Service understanding how important that responsiveness is.

Senator CARR —In that process, questions have arisen today, and I have referred to the Griffith Review comment on the situation in the department of foreign affairs where two former secretaries have indicated their unhappiness about changes that have occurred. They think that a regressive change has occurred. One refers specifically to a culture of compliance. Others have referred to processes, and I have mentioned many today. There are examples where it is alleged that public servants at senior levels take on a more political role in the process of policy formulation and of matters relating to information that should normally be made public. I speak of research reports, and I have referred to some of those this morning. Can you see a situation where, if there is a culture of compliance within the Public Service, this relationship issue becomes immaterial because public servants at the senior level act on behalf of a minister in a political way irrespective of what they are told directly? They do not require direct instruction, for instance, to act in certain ways.

Mr Podger —I spoke earlier about the intersection between politics and administration, which has always been a matter of debate in public administration, and about how it has become more acute, in my view, in the last 20 years for a range of reasons. I am not suggesting that there has been any major shift to a compliant attitude. Indeed, the smart minister and the smart adviser know that if the department starts to behave that way then it might sort things out in the short term but it will catch up with you in the long term. They appreciate that the frank and fearless advice, if you like, is in their political benefit in the longer term, notwithstanding that it might be somewhat uncomfortable in the short term.

In trying to promote professionalism in the service, I have seen that one of my roles is to remind all public servants of the professional standards and so on that we ought to be retaining in the service. I do not think things have particularly deteriorated but I do think the pressures are greater than they were 20 years ago. This is not one side of politics versus another; it is simply facing reality that the intersection has become more of a challenge that we have to rise to and we have to make sure we make it work well.

Senator CARR —The problems arise in these contexts: whether or not in the value based Public Service that you are championing there is an assumption that those values are shared. My concern is that, firstly, where you have, for instance, the case where former Minister Reith said he did not have to correct the record because he was not told that he was providing information incorrectly, there is no way of checking that; and, secondly, with regard to this climate within the Public Service where there is fear or where people are self-censoring there is really no need for the ministers to intervene.

Senator BRANDIS —We have had no evidence of a climate of fear, Senator Carr.

Senator CARR —Would you agree that that is a possibility?

Mr Podger —I see that my role is to remind public servants of the values and the professional responsibilities they bear. As I said in the submission, because of the increased role now played by advisers in the system, I think there would be benefit in further improving the professionalism amongst advisers, whereby a clearer statement of values and a code of conduct would, in my view, be of assistance. I know there are others who have a different view on that, but my view is that that would help the professionalism of both sides. One aspect would be a reminder to advisers, just as I am advising public servants, about what it is that makes the Public Service the institution that it is within our democratic process. I do not mean by any of that to suggest that there is suddenly a major problem today. This is an issue that has been growing for the last 20 years. My view is it would be best to put it on the table and improve the professionalism on both sides.

CHAIR —Thank you, Mr Podger. We will adjourn, and during the adjournment we will make an assessment about when you will be able to appear again to finish your evidence, if that is required.

Proceedings suspended from 1.35 p.m. to 2.06 p.m.