APS Commissioner, Dr Gordon de Brouwer's speech on Integrity

By the Australian Public Service Commission

 

Gordon de Brouwer head shot

A transcript of the speech given by APS Commissioner, Dr Gordon de Brouwer at The Mandarin's - Rebuilding Trust and Integrity in the Australian Public Service event on 22 February 2024.

 

Delivering with integrity

One of the benefits of being Public Service Commissioner is the opportunity it provides to see across the whole of the public service. When I started as a grad in Treasury in 1987, better known as the year Kylie released Locomotion, I never imagined the opportunities the public service would provide me, including to see what it takes for governments to succeed. As Commissioner, I am on the people side of the business of government, and I see every day that the ability to achieve outcomes depends on the capability and integrity of public servants.

Today is about the integrity aspect. At a conference on rebuilding integrity, the focus is likely to be on the problems and failures, so I will start with the positive.

The State of the Service Report released in November 2023 highlights some of the achievements of the public service, great case studies of public servants serving the nation, improving people’s lives and our natural world. They range from supporting Pacific Islander workers and communities in rural and regional Australia, providing emergency accommodation during the Kimberley floods, measuring radiation risk, ensuring the quality of our national blood supplies, and providing services where and when people need them. They are stories of achieving outcomes with hard work, focus and decency.

As the Spirit of Service exhibition about the Australian Public Service in the Museum of Australian Democracy so powerfully shows, government and public administration play a positive role in so many parts of people’s lives across the nation. I thoroughly recommend the exhibition to you. The vast majority of public servants are highly effective – making a difference to Australia, and doing their job in serving the Government and Parliament professionally and with honesty and decency. We recognise a small number of those public servants who make an outstanding contribution to their country with public service medals, and it is a real delight for me to chair the advisory committee for nominations.

Alongside the many examples of public service excellence, the reality is that we also have powerful examples of where the public service has failed to meet the standards the public expects of us. The insights from the Robodebt Royal Commission are the most prominent, but there are other reports and investigations too. We are honest about these in the State of the Service Report, particularly where they reveal recurrent poor behaviour, a topic that I will return to. But I want to reiterate here the words Glyn Davis has said to me: that ethical delivery is widely seen by the public service as intrinsically worthwhile and that it is well within our grasp.

I saw this first hand when I worked in senior roles in the Prime Minister’s Department and the Environment (and later Energy) Department on climate change, energy and environment policy to Prime Ministers Rudd, Gillard, Abbott and Turnbull from 2008 to 2017.

  • I saw how public servants provided advice to each of those Prime Ministers and their Ministers and Cabinets, conducted negotiations, drafted legislation, and represented government under almost every possible combination of policy, supporting each Government achieve its priorities, even if it occasionally took time for the public service to catch up with changes in the Government’s policy stance.
  • I saw public servants who worked strategically and apolitically with ministers, to help work out a policy and an implementation path.
  • I saw public servants actively engaging with each other and working collegially across the service, looking for solutions that met economic, social and environmental imperatives, working professionally with State and Territory colleagues, and supporting each other.
  • I saw public servants who acted ethically and within the law, who provided difficult advice in writing at the right time, and who took deep pride in their professionalism in implementing well the decisions of a democratically elected government whatever their personal views on the matter at hand.

What I saw in the climate change, energy and environment domain over that decade is in turn what I see in my current role: public servants across all policy and service domains seeing delivery and behaviour as complements in their job, not as alternatives. Delivering outcomes for the Government and the Australian community is an essential and basic part of the job of a public servant. But delivery can only be sustained if it is underpinned by behaviours that build and sustain institutions and people. Most public servants know and live this. They know that ethics and productivity are companions, not rivals, in successful organisations.

There is almost always a solution to a problem or matter that will deliver an outcome for the Government in a way that meets the high standards of behaviour, professionalism and ethics that the Parliament has said it expects of public servants.

Secretaries Board and the Minister for the Public Service have actively sought to reinforce that delivery and behaviour travel together, including through the following initiatives:

The response to these initiatives from the public, public servants and members of Parliament and their staff has been positive. Many of these initiatives have their origin in a commitment to integrity, given impetus by the Robodebt Royal Commission. For the public, there is scepticism whether the lessons from Robodebt and other ethical failures in public administration will be learned and that public interactions with the public service will actually be different. While time will tell whether we pass that test, there is a deep intent within the public service to make sure we are honest about our mistakes, take responsibility for our actions, and learn so that our service of the public is better.

The Robodebt Royal Commission, various reviews by integrity agencies, and code of conduct investigations point to five recurring problematic behaviours. These include:

  • accepting or not calling out intimidating, bullying and aggressive behaviour, especially by senior people who have power and influence over performance and promotion;[10]
  • operating in siloes and not sharing information with others in the same agency or other agencies, sometimes out of a sense that people think they know what they are doing and so don’t need to check with others, sometimes as a deliberate decision to exclude or hide information from others;[11]
  • avoiding frank and honest advice – sometimes out of concern about how Ministers, their advisers or a senior public servant will react, sometimes to ensure that the ‘job just gets done’, sometimes to get an outcome that the public servant themselves thinks is important;
  • ignoring a specific legal requirement – including finance law (including rules around procurement, contracts and grants), employment law (including consultation in workplaces), information law (including FoI and privacy), policy domain law (such as environment, social security, biosecurity or migration) and the constitutionality of spending by Commonwealth agencies; and
  • not declaring or managing conflicts of interest, including in personal relationships in the workplace.

A consistent theme across these behaviours is the adoption of a narrow, technical view of integrity – making sure that appropriate documentation is signed and that processes are adhered to – without actively applying ethical decision making. Thinking can be confined to whether a particular course of action can be done – whether it meets technical legal and process requirements – rather than whether it should be done – whether the course of action best serves the interests and expectations of the Australian public.

These poor behaviours are not the norm for the public service, but they are vulnerabilities not uncommon to fast-moving, complex and hierarchical organisations. Whatever the case, poor behaviour is always unacceptable.

With the support of Secretaries Board, the Public Service Commission takes a three-part approach to embedding good behaviour.

First, we are clear about the behaviours expected of public servants as they deliver outcomes for government. You will have heard this a lot already.

We are expected to balance the ‘what’ and the ‘how’ of public service; to ensure that when we deliver outcomes, we do so with an array of basic behaviours. These behaviours are set out in the Public Service Act in terms of values,[12] employment principles,[13] and code of conduct.[14] The Act says that these behaviours are law. They are requirements in how public servants do their job.[15] They require us to use judgment in meeting our duties and do so reasonably.[16] We have a legal requirement to act ethically, which is something almost everyone would want to do anyway. The required behaviours for public servants are analogous to the Hippocratic oath of doctors to do no harm and the Bar oath of lawyers to uphold the law.

That takes me to the next point: we are here to support and help you to do your job well.

The integrity action plan, Louder than Words, released last November by Secretaries Board, is a practical guide to supporting public servants’ integrity in public administration, with training, support and advice across different levels of the public service.

Having effective and trusted working relationships with your colleagues and networks across the public service, and strong professional relationships with ministerial advisors and ministers, makes it easier to raise and test ideas early and avoid events spiralling into conflict. I have seen many occasions where ministers talk through their policy interests or objectives with senior public servants and ministerial advisors, identifying and ruling out approaches as they work through options and risks. This works well when people know what they are talking about, are trustworthy and honest, known to look for good outcomes, and not driven by personal interests and power.

It is a basic expectation that all public servants work cooperatively with colleagues across the public service and with openness and respect with the public. Executive level and senior executive level officers have a particular responsibility to enable their staff to build trusted and effective relationships and create a safe workplace culture that empowers staff at all levels to identify, take and manage risks. This is essential in any self-sustaining organisation and enables more junior officers to grow skills and capability as they become more senior.

Tone from the top really matters, with the 3¼ thousand or so public servants in the most senior positions responsible for creating the systems, culture and capability for the remaining 170,000 public servants. Secretaries have explicitly sought to strengthen the incentive of public servants, especially the SES leadership cohort, to develop and strengthen their relationship with colleagues across the public service. The APS Academy, EL professional development, Band 1, 2 and 3 induction and development courses, and the APS200 create connections between senior leaders and opportunities to develop networks. The Secretaries Talent Council and Deputy Secretaries Talent Council actively reinforce the incentive for constructive relationships between senior officers.

The 2019 Independent Review of the Public Service also stressed the relationship between public servants and ministerial advisors. My predecessor, Mr Peter Woolcott, set up the Strengthening Partnerships program under the APS Academy, a great initiative to deepen that professional relationship. It is also why it is so important that some public servants work in a Minister’s Office at some stage in their career, and understand the needs of ministers and the demands on ministerial advisors. The public service leadership wants public servants to work as advisors in a Minister’s Office, and not only as departmental liaison officers, and takes seriously its responsibility to sustain the careers of people who do that under different governments.

There are occasions, though, where the rubber hits the road for the public servant, and there is a gap between what a Minister and their office may want and what the public servant thinks they can properly do. There are typically three steps to finding a resolution.

  • In the first instance, referring it to a senior officer, and testing your reaction and thoughts with others is essential, be that a trusted colleague, a person in a public sector governance role in the APSC, PM&C, Finance or Attorney General’s Department, or perhaps a trusted former senior public servant. You have a lot of people throughout the system of public administration to talk with.
  • Talking it through with the Minister and their advisors is the next step. The art or craft for the public servant here is the way you engage. A good starting point is to understand the objectives of the Minister and explore ways to achieve those objectives which are consistent with legal and ethical decision making. On occasion, other people can be discreetly involved to help ease tension or broker an outcome.
  • Finally, if the inconsistency remains, your advice needs to be in writing, and afforded, if appropriate, the proper exemptions from freedom of information release. Sensitive advice of this nature would typically come from a senior SES officer or the accountable authority.

There is nothing easy in this, because the reaction to written briefing can be strong and it can come at short term cost to public servants. We do see cases where written advice has not been provided but should have been, and various royal commissions and reports have criticised public servants and the public service for this. It is worth stressing that what the public does not see are those many significant instances where discussions and written advice have been provided and have changed policy and administration and avoided negative outcomes.

The third element in how the APSC addresses behaviour is disciplinary action.

We are all human, we all make mistakes, we all do things that we regret and wish we hadn’t.

From a governance perspective, mistakes are not the problem. Mistakes are how we learn good judgment, how to take and manage risk, and how to strengthen administrative systems, advice and delivery. The problem with mistakes is hiding them and not learning from them.

More generally, the APSC provides guidance that an agency’s response to poor behaviour by a public servant should be proportionate, specific to the context and aimed at restoration.[17] We look to performance management, counselling or alternative dispute resolution before undertaking a code investigation. Because we look at conduct through the employment lens (as distinct from a public criminal or civil lens), the Public Service Act affords the employee a right to privacy and strict secrecy around public disclosure unless disclosure is overwhelmingly in the public interest. The Commission takes this right to privacy within the employment relationship seriously. Being the subject of a disciplinary action is stressful and usually distressing. In addition to making sure that the right disciplinary outcome is achieved, we are acutely aware of individual wellbeing at all stages in the process. The discharge of the Commission’s integrity duties requires empathy.

The Public Service Act addresses the materiality of possible breaches of the code of conduct by requiring investigations to be independent and unbiased, properly documented and to provide procedural fairness throughout the process, as well as an array of sanctions for breach (from termination of employment to reprimand) based on the seriousness of the breach.

A common feature in how poor behaviours emerge or persist is the role of leaders in organisations. The role of SES officers and agency heads is crucial, given their positional and decisional authority. Leaders can prevent, mitigate, amplify or create problems in behaviour. In some cases the origin of the problem can lie at the top level or two of an organisation. The traits of good leadership are empathy, conscience, responsibility, accountability and truthfulness. The traits that we want to avoid are emotional shallowness, glibness, egocentricity, lying, lack of interest in others, desire for power and prestige, manipulation and ruthlessness, and creating fear in others. These negative behaviours end up damaging culture, performance and delivery.[18]

While institutions, incentives and professional development are there to back and support you, the primary responsibility for your conduct will always rest with you.

You choose the sort of person you want to be in the workplace. The onus is on you.

We are seeing public servants coming to grips with greater expectations about behaviour in public sector organisations.

An issue for us all is how we respond to a greater focus on integrity and behaviour without overreacting. We do need to think deliberately about ethics in how we deliver for Government. But Robodebt and other reviews shouldn’t mean that we stop delivery, not engage in conversations, not look for solutions, not make proper use of exemptions from FoI, and not take risk. These are all things that the law expects of us too.

What is the norm? Well-structured advice, supported by evidence and analysis, setting out a range of options and their associated risks, informed by the views and needs of relevant communities, with a substantive view about the preferred option and clear path forward through to implementation. It requires a genuine commitment to innovation and practical problem-solving, not just caution about the many obstacles of a proposed approach. The craft is doing this in practice.

While the integrity agencies have an independent oversight responsibility that is hard-wired into our system of government, they also want you to succeed in your job and enjoy your career. The area that I think we do need more debate is the effectiveness in FoI law of the exemptions for genuine deliberative material. Transparency in government is essential. But the Robodebt Royal Commission is one example of many of how public servants avoided putting their advice in writing out of concern that it would be public, perhaps under explicit or implicit pressure from Ministers and their advisors or senior public servants. It is no use just to tell everyone to change. We need to discuss whether the way FoI law has been operating for the past decade and half, when conclusive certificates were discontinued, is counterproductive to the Parliament’s intent. When it comes to deliberative material, FoI does not ensure transparency (because advice is not being written) and it undermines integrity (because advice is not being written). The question is whether those exemptions to ensure that public servants provide sensitive deliberative advice in writing should be strengthened, perhaps with delayed public release of deliberative briefings after, say, 5 or 10 years.

While the APSC is part of the integrity architecture, we are also part of the capability architecture that is here to support and enable you to do your job well. There is a craft to the complexity of public service, and the APS Academy, the Professions, Secretaries Board, and agencies themselves all have a deep commitment to enabling you to do your job well. I see a deep desire in public servants to do their job effectively and well, and openness in their workplaces to listen and improve how they work. Delivering with integrity will be a focus for the Public Service Commission for 2024. Please engage with us so that we can better support you in doing your job of serving the Government, the Parliament and the Australian public.

Gordon de Brouwer
Australian Public Service Commissioner
22 February 2024

Footnotes

[1] See https://www.apsc.gov.au/initiatives-and-programs/learning-and-development/secretaries-charter-leadership-behaviours.

[2] See https://www.apsc.gov.au/sites/default/files/2023-08/SES%20performance%20leadership%20framework.pdf/.

[3] See https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result?bId=r7044.

[4] See https://www.katygallagher.com.au/media-centre/speeches/annual-statement-on-aps-reform/.

[5] See https://www.apsc.gov.au/initiatives-and-programs/aps-talent-management.

[6] See https://www.apsacademy.gov.au/aps-craft/leadership-management.

[7] See https://ministers.pmc.gov.au/gallagher/2022/albanese-governments-aps-reform-agenda.

[8] See https://www.apsacademy.gov.au/aps-craft.

[9] See https://www.pmc.gov.au/resources/louder-words-aps-integrity-action-plan.

[10] This is confirmed by staff surveys: the average bullying rate in the public service is 10% and there is a big dispersion around this number; most people in the APS Census (57%) say they do not report bullying behaviour because they think nothing will happen (47.5%), fear of reprisal (46.1%), adverse impact on career (36.7%), not worth the hassle (33.9%), or managers accept the behaviour (30.7%); and the lowest score in the survey of APS employee perceptions of their immediate supervisor is their supervisor calling out unacceptable behaviour (only 67% agree).

[11] This is confirmed by the APS Employee Census that only 53% of staff think the SES in their agency work as a team, which is the lowest score for SES behaviour.

[12] Section 10 of the Public Service Act requires public servants to be committed to service (i.e. professional, objective, innovative and efficient in achieving the best results for the Australian community and the Government), ethical, respectful, accountable (i.e. open and transparent under the law) and impartial (i.e. apolitical and provide frank, honest, timely advice to the Government that is based on the best available evidence).

[13] Section 10A of the Act outlines employment principles, including merit and specific characteristics of the public service workplace, such as workplace safety, genuine communication, freedom from discrimination and patronage.

[14] Section 13 of the Act sets out the code of conduct expected of all public servants and agency heads, which includes upholding APS values and employment principles, complying with the law, treating others with respect and courtesy, avoiding conflicts of interest, maintaining confidentiality, and using public assets properly.

[15] See https://www.apsc.gov.au/publication/aps-values-and-code-conduct-practice.

[16] Section 25(1) of the Public Governance, Performance and Accountability Act 2013 sets out the reasonable person test in a public servant discharging their duties with care and diligence.

[17] See https://www.apsc.gov.au/circulars-guidance-and-advice/handling-misconduct-human-resource-managers-guide especially pages 29-35.

[18] See ‘”Corporate Psychopaths” in Public Agencies?’, Lee W Hanson and David L Baker (2017), Journal of Public Management and Social Policy, 24(1), Article 3, and ‘How So Many Toxic Employees Ascend to Leadership’ (2021), Clive Boddy, Louise Bolter and Simon Fishwick, in Debating Bad Leadership, A. Ortenbald (ed.), Palgrave Debates in Business and Management, Springer, 69-85.

 

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