Image: AAP /Lukas Coch There is a malaise in APS integrity, accountability and transparency. Robodebt was only one manifestation of the problem. Officials now mislead Parliament and there is little effective accountability.
After the election, Senator Katy Gallagher tweeted a picture with the caption ‘Great to get to work today with Dr Gordon de Brouwer who’ll work closely with the govt to build a stronger public service’. On the table in front of them lay copies of Our Public Service, Our Future, the report of the Independent Review of the APS.
Both de Brouwer and the new head of PM&C, Glynn Davis were on the panel that produced the report. The report noted broad agreement that the APS should be apolitical but observed that views differed about the extent to which it may have become politicised. The strongest recommendation made to improve integrity was to amend the Public Service Act 1999 to reflect key principles for the APS – apolitical, stewardship, openness, integrity and adherence to merit. The recommendation was rejected by the Morrison Government.
Recent events haven’t supported the case of those who argue that APS politicisation is overstated. The most egregious counter example was Robodebt. Professor Peter Whiteford wrote: ‘The unlawfulness does not relate to a legal technicality or a mistake in drafting. In brief, the “overpayments” the government recovered using income averaging were not overpayments. No one who understood the social security system and its governing legislation could have realistically thought they were.’ (The Conversation, 16 November 2020).
I spent many years working on Social Security and know Whiteford’s view to be correct. Public servants know that Ministers cannot direct the APS to do anything unlawful. So how did Robodebt happen? What systemic arrangement should have stopped it before people’s lives were damaged? What is required to prevent such a thing happening again?
We might think a departmental head should have stood up and said that the proposed policy was unlawful and could not be implemented. Perhaps they did. Given it may adversely affect their relationship with their Minister and their job prospects, it would be naïve to rely on this. Does APS integrity really come down to selfless acts of bravery?
Promoting a culture of integrity in the APS is important, but it too is not sufficient. Other checks and balances need to be in place. If we are to have an APS which is responsive to Ministers, we need effective mechanisms to counter the increased risk of politicisation of the APS.
One potential candidate is APS accountability to Parliament. The Independent Review noted: ‘Senate estimates hearings are a vital part of Australia’s parliamentary system and the principal means through which the APS is held accountable to Parliament’ (p131). It is a pity it did not include discussion on whether APS accountability to Parliament currently curbs Ministerial excesses, mitigates the risk of APS politicisation and promotes APS integrity.
Unfortunately, it is common for there to be political interference in the processes of parliamentary accountability and these processes have become debased. Ministerial offices routinely micro-manage responses to senate estimates. Adjustments are made to the wording of answers and the timing of responses is controlled. There is growing evidence that information is inappropriately withheld, misleading information is provided, and that processes of parliamentary accountability are obstructed.
For those who do not believe there is obstruction of parliamentary accountability, they should study Senator Katy Gallagher’s efforts to find out why, in 2020, Boston Consulting Group (BCG) was paid $3.3 million for a four-month contract with the Department of Social Services.
Gallagher first asked about the contract during the October 2020 estimates hearings. She was led to believe it was primarily a mid-term review of the Disability Employment Services (DES) program, with a few small matters added to the contract as further issues for investigation arose. Ultimately, she would discover that the largest component of the BCG contract – worth $1.8 million – was for a separate hidden research project. The focus and purpose of the research is still largely secret, subject to the outcome of multiple FOI appeals to the Office of the Australian Information Commissioner by the Guardian.
We know this separate project was only added to BCG’s contract after it had been selected as the preferred provider for the DES Review. We know hiding the project in the DES Review contract breached procurement rules. Ray Griggs, the new Secretary of DSS following Kathryn Campbell’s move to the Department of Foreign Affairs and Trade, concluded this in his desktop review of the BCG contract which he provided to the relevant senate estimates committee in March 2022.
Over a period of 18 months, Gallagher was constantly misled about the contract. Deceptions would only come to light when documents were released following FOI requests by the Guardian. When Gallagher confronted Departmental officials with evidence of being misled, officials would dig-in and defend their responses in ways that lacked credibility.
One example of this was when both Gallagher and Senator Siewert asked whether BCG’s report on DES contained recommendations. Officials responded by talking about themes and areas for further work. Siewert was told ‘It didn’t really make recommendations per se.’ When the DES review report was released to the Guardian under FOI, it was found to contain 61 numbered recommendations in an upfront summary.
Officials claimed they didn’t intend to mislead the committee and that they had been talking about recommendations to Ministers. But Senator Gallagher’s question had been about ‘recommendations to the Department’ and Siewert’s question about ‘recommendations that the report made’. The record was only corrected after Gallagher insisted.
Another example was when Gallagher asked about project deliverables and reports arising from the contract. She was told there was a report on the mid‑term review of the DES program and a separate report on a related employment assessment tool. There was no mention of any deliverables from the hidden research project. Things reached the height of absurdity when officials effectively told Gallagher that BCG had not been provided with any statement of requirement for the research that it was to undertake and the Department had not received any report on the research, despite spending $1.8 million on it.
Once again, it would not be until documents were released under FOI that Gallagher would discover the research project had produced a series of PowerPoint presentations. The final versions of these were provided by BCG in its sign-off email at the end of the contract. The materials included an Executive Summary, a discussion paper, a single parents addendum and a Compendium of Materials. When Gallagher confronted officials about being misled, the Department argued these items did not constitute a report, ignoring that Gallagher had asked for a list of deliverables and hadn’t been told about any of these items.
The presentations released under FOI are extensively redacted. The visible content is about working age income support payments, rates of those payments and changes made to those payments due to the COVID pandemic. Unredacted headings include ‘the likely recovery pathway for employment and the welfare system’ and ‘illustrative options’. In October 2020, officials denied that BCG had been asked to look at what impact the recession was going to have.
We don’t know where the idea to conduct the research originated. Documents released under FOI show the first reference to it is in an email sent by BCG to the Department of Social Services (DSS), suggesting ‘how you could describe the scope of the proposed research work for inclusion in the DES Review work order’. BCG’s proposed description was open ended, including ‘any other matter the Department deems relevant’. It is this description that ended up in the contract, rather than something which originated in the Department.
The research project covers issues that were politically sensitive in 2020 when it was commissioned, so sensitive that no-one created any documentation related to the project’s procurement. The issues remain sensitive today – the rates of working age income support payments, the associated obligations of recipients and the job prospects of disadvantaged recipients.
The timing of email communications suggest that the research may have been hidden to avoid scrutiny by the Senate Select Committee on COVID‑19. Three economic stimulus packages in response to the pandemic were announced during March 2020 and the Senate resolved to establish the Senate Select Committee on 8 April.
BCG’s suggestion on how the project could be described wasn’t made until 24 April and the contract was not signed until 7 May – the same day BCG’s description was inserted into the already drafted contract. That sequence of events does not sit comfortably with evidence given by officials in October 2020 when one said ‘I think we’d already asked them to do this work before the COVID pandemic was upon us’.
Gallagher’s ability to understand what had happened and to ask questions about it was impeded by a strategy that ignored the due date for answering written questions on notice. On three consecutive occasions, responses arrived late at night immediately prior to the next estimates hearing. By October 2021, Gallagher was registering ‘sincere displeasure’ that responses to her June questions were ‘about 100 days overdue’ and lodged ‘at 11.54 last night …. literally at five minutes to midnight’.
In February 2022, Gallagher stated: ’I’m very concerned about the accuracy of the answers that the committee has received … I am considering pursuing a reference to the committee of privileges.’ That probably won’t happen now the Government has changed.
No-one will be held accountable for what has occurred – not for breaching procurement guidelines, for hiding the existence of publicly funded research on an important social issue or for misleading Senators. There is no effective mechanism to do so. The lack of any prohibition on the involvement of Minister’s offices and Ministers in processes of accountability to Parliament effectively allows ‘witness tampering’. Current arrangements allow politics to infuse the APS and diffuses responsibility so that no individual is accountable.
There is a malaise in APS integrity, accountability and transparency. How the APS is accountable to the Parliament and the public, whistle blower protections and APS culture should all be in scope for the APS rebuild. Its culture of secrecy in areas of domestic social policy should be eliminated.
Mark Warburton is an honorary senior fellow at the Centre for the Study of Higher Education at the University of Melbourne. He spent 32 years in the Australian Public Service, including many years in its Senior Executive Service working on social services.