15 March 2000

Mr Gary Fenlon, MLA
c/- Legal, Constitutional and Administrative Review Committee

The Role of Statutory Office Holders when the Public Service Fails

Recent press reports highlight some controversy over your Committee's proposed formal review of the Ombudsman's Office ⁽¹⁾. This is not surprising considering its implications.

The Wiltshire report identified a large backlog of cases confronting the Ombudsman's office and thus suggested that (a) the 'Ombudsman become more proactive and preventative in the oversight of administrative action in Queensland' ⁽²⁾ and that (b) Parliament, through your Committee, be alert to the implications of the Ombudsman's reports for 'the quality of public administration in the State and any major systemic issues which are raised' ⁽³⁾.

I submit that escalating community calls for the Ombudsman's help, and his Office's consequent case-work backlog, are probably mainly a symptom of administrative failings due to the amateur-isation / politicisation of the Public Service.

As I have often pointed out, our Public Service appears to be in difficulties due to well-meant political attempts at reform, which have progressively made the situation worse.

A first account was given in Towards Good Government in Queensland ⁽⁴⁾. The main theme of that analysis was that supposed 'reform' in the early 1990s, flouted the Westminster tradition of an independent meritorious Public Service, and in doing so eroded its senior skill base ⁽⁵⁾ - thus eliminating the best source of advice and support able to help in implementing widely desired reforms. This slowly and invisibly led to administrative breakdowns (eg muddles in health and education services, fumbled infrastructure planning) and to an inability to implement pre-election policies promising real economic development ⁽⁶⁾. Arguably Queensland's practical ability to achieve any goals, or to make realistic policy progress, was set back by 10-15 years. Indicators of a re-emerging administrative shambles in 1999 were subsequently pointed out ⁽⁷⁾.

Recently a CJC survey of perceptions about Public Service honesty and behaviour was reported to be seen by QUT's Professor Preston as reflecting 'widespread disenchantment about the public sector' ⁽⁸⁾. It is in this context that a growing need for the Ombudsman's help, and suggestions about attention to systemic administrative problems, should be viewed.

As elsewhere ⁽⁹⁾, our Public Service's (Westminster) role as a source of competent support to government seems to be breaking down. The prime systemic 'suspects' must be (a) bipartisan support for Service politicisation ⁽¹⁰⁾ and (b) a lack of any real need to consider merit in staff appointments ⁽¹¹⁾. Scapegoating Public Servants themselves won't fix the problem.

Statutory officers holders are well placed to give Parliament evidence of the need for reform to rebuild Service professionalism - but to date they have not 'grasped this nettle' ⁽¹²⁾. This factor should be considered in reviewing the Ombudsman, and other statutory officers.

[Signed John Craig]

Notes:

1. Media reports on controversy: Sommerfield J. and Griffith C. 'Beattie's role in contract blasted' and 'Opposition hits tainted tender', Courier Mail, 13/3/00 and 14/3/00 respectively.

2. Queensland. Parliamentary Legal, Constitutional and Administrative Committee. Review of the Report of the Strategic Review of the Queensland Ombudsman (Parliamentary Commissioner for Administrative Investigations), Report No 14, July 1999.

3. Wiltshire K., Strategic Review of the Queensland Ombudsman (Parliamentary Commissioner for Administrative Investigations), April 1998

4. Towards Good Government in Queensland (1995) was enclosed with my letter of 25 August 1998. Various other observers' views of the 'reform' process were presented in Attachment A to that paper. A recent attempt to summarize what went wrong with politically driven Public Service 're-engineering' in the early 1990s was given in Attachment A to my letter of 23/7/99.

5. How Politicisation Leads to De-skilling: Professionalism can usefully be defined as a combination of both high level knowledge and practical experience of what should happen when that knowledge is applied. In a Public Service context, if (most) appointments are made by persons with relevant 'professional' knowledge and experience, persons with high level knowledge and relevant experience tend to gain senior positions. However politicisation creates a different regime, in which persons with partial professional competence (eg some theoretical knowledge but no experience, or the reverse) may gain political support because its is much easier to bluff the political system with trendy rhetoric than to see the practical significance of policy theories, cope with complex situations, be credible with peers and achieve real results. Political appointments tend to be focussed on persons known to the political system - who can be those relying on such linkages to get ahead. This can then affect the professional competence of the whole Service, through the inability of political appointees to tolerate sub-ordinates with higher professional capabilities or to appropriately lead, train or select other staff. In practice our political system has proven singularly unable to accurately identify persons who do combine high level knowledge with practical experience (ie are true professionals). For example quite a number of cases can now be identified where politically selected CEOs have been seen as Ministers' greatest problem after about 18 months. Our political system has also been singularly unable to tell what harm it is doing. The idea of 'information asymmetries' (which the IE Aust recently used to good effect in the submission about Queensland's Professional Engineers Act) provides an explanation of why politicisation of senior Public Service positions can be disastrous. It is equivalent to the client deciding who should be a qualified professional. Unless something is done by professional organisations to restore professionalism (ie to re-emphasise a proper balance of real knowledge and experience) as the basis for senior Public Service then the context within which a large fraction of younger professionals work is NOT going to be hospitable to their professional development. Some work is being done by the Institution of Engineers in relation to the question of eroding technical / engineering skills in the Commonwealth Public Service (eg Brook S., 'Faulty engineering formula for disasters', Australian 21/1/00). And other trade and professional bodies have made similar comments (in Breusch J., 'Public Service has lost expertise', Financial Review, 11/1/00). However there has yet been no systematic work done to identify the overall effect of well-meant but ill-advised politicisation / amateurisation of senior Public Service appointments. It can also noted that concern has been expressed by Queensland's judiciary about a lack of professional merit in recent Supreme Court appointments (eg Monk S. 'Judge blasts 'political' appointees', Courier Mail, 15/11/99; and 'Gibbs wins peer support' Sunday Mail, 20/2/00) and the Chief Justice has recently produced an account of the requirements for professional merit in judicial appointments ('Equal Justice for all', Courier Mail, 16/2/00).

6. Unsatisfactory Economic Outcomes: The One Nation phenomenon emerged in Queensland as a reflection of the frustrations of those who failed to prosper from economic change. And this has now expanded into a major current (national) political problem of the split between the 'haves' of the knowledge economy and the 'have-nots' of the rural, coastal and metropolitan margins. Part of the 'credit' for this must be given to those who 10 years ago did not take seriously the development of a productive modern economy in the face of clear limitations on traditional strategies, and the much more difficult standards which had to be met for successful diversification.

7. What happened after 1995: As discussed in Towards Good Government in Queensland, the Goss Government's reforms had created a Public Service which (with exceptions) had weak practical competence and policy capability. The Borbidge Government sought to restore practical experience to the senior Public Service (through its 'Dad's army'), but did not fully address the strategic agenda. The Beattie Government reinstated a populist version of the 1995 administration which had (invisibly) led to the downfall of the Goss administration. And indicators of a re-emerging administrative shambles were again widespread by 1999 (see my letters to MLAs - dated 28/5/99 and 23/7/99). The anecdotes in those letters were volunteered by experienced observers without leading questions, and were deliberately made vague to avoid witch-hunts.

8. Tallon S., 'Public service fails trust test', Sunday Mail, 5/3/00.

9. Politicisation by other governments: appears (though it is impossible to be sure at a distance) to have led to failures due to loss of professional Public Service support. Considerable comment on the effect on political neutrality has been made in relation to appointments made by the present Commonwealth Government (eg Harris T. 'Yes, yes, yes Minister', Financial Review, 31/12/99). However loss of professional competence is far more important than loss of neutrality, as argued by Professor Richard Mulgan (ANU) in Politicization of Senior Appointments in the Australian Public Service, AJPA, September 1998. Indicators of a possible loss of competent advice include: the poor technical quality of the public debate about the republic referendum; and the mis-handling of Australia's relationships with Indonesia over the East Timor issue. Some discussions between the Coalition and Labor Parties about ensuring an experienced bureaucracy have now been reported (McGregor R., 'Shaking the Canberra Tree', Australian, 10/1/00). However the problem may be far more widespread in State administrations. The spectacular 1980s' failures of the Cain Government in Victoria followed an almost identical 'reform' process to that used later by the Goss administration. Cain sought to use managerialist methods to create a 'reform oriented bureaucracy'.(ie one which was efficient, accountable and coordinated in line with government policy). The effect was documented in The Fall of the House of Cain (Murray R. and White K, 1992), which is outlined in Attachment C to Towards Good Government in Queensland. More recently the phenomenon may be revealed by the many governments which have fallen due to political leaders being seen to be 'arrogant'. For example, the Kennett Government's failure surprised commentators as much as that of the Goss Government, and was also ascribed to 'arrogance' (eg Malcolm Mackerras, 'Political arrogance claims next victim', Australian, 20/9/99). I wrote to Professor Mackerras (an experienced political commentator now at the Australian Defence Force Academy) suggesting (based on Queensland's experience) that political 'arrogance' might be perceived when superficially sensible policy ideas failed to result in real performance because of the (invisible) lack of competent professional support. Professor Mackarras then agreed that this was probably a more important factor in the fall of the Greiner, Goss and Kennett than the 'arrogance' factor his own initial analysis had suggested. While I have not having studied Victoria's situation in depth, it seems likely that the Kennett Government did not really produce the practical benefits the politicians and media claimed, any more than the Goss Government did. The main thrust of its reform agenda involved: restoring Victoria's fiscal position; smaller government (less taxes and services); and supporting major investors. These reforms seem very similar to Queensland's traditional tactics, which was only effective in encouraging rapid growth in low value-added economic functions. What was NOT done was to establish any machinery by which the economy could be developed - which was particularly serious in rural and regional areas because of the challenge to their traditional industries, and because of the higher standards which now exist for diversification. Relative economic underdevelopment in regional areas (and its effect on migration) has been suggested as the main source of the social pain in regional Victoria (Birrell B., Dibden J. and Wainer J. 'Regional Victoria: Why the Bush is hurting', Centre for Population and Urban Research, Monash University, January 2000). And trying to make government 'business-like' (ie efficient in services delivery) probably reduced its ability to be 'government-like' (ie concerned for community welfare, and efficient in enabling the economy and the community to be effective).

10. See Franklin M., 'Only four survive Beattie's reshuffle', Courier Mail, 17/4/99.

11. Proof that merit did not really have to be considered in senior appointments lies in the situation outlined below (which one observer saw as a test of the now-defunct Westminster tradition - McDermott P `Tenure of Senior Queensland Public Servants', Australian Journal of Public Administration, March 1993). It involved:

• the Queensland Premier's Department's refusal in the early 1990s to allow merit to be considered in a grievance I raised about the process of senior staff selection - after the grievance investigator declared himself unable to assess the matter on merit;
• a Fair Treatment Appeal's finding (in effect) that refusing to allow merit to be considered was 'fair';
• a determination by the Ombudsman's office in 1993 that it would have been anomalous for merit to be considered, as Queensland's legislation did not allow appeals against SES appointments; and
• my failure to encounter anyone at any stage in the appointment process, grievance and subsequent dispute who knew or cared what technical merit was in the complex policy area of economic development for which I had applied for a senior policy research and development position.

And where merit is not a required consideration in senior appointments, there is no way to prove that it has been meaningfully considered at any level, as senior officials are responsible for more junior appointments.

12. The Present Inability of Statutory Officers to Deal with Systemic Problems:

• In the case referred to in Note 11, the PSMC's Grievance Director had recommended that I take up with the Ombudsman's office the Premier's Department's refusal to allow merit to be considered in relation to a senior appointment - presumably because she believed that there was a systemic defect in Grievance processes which the Ombudsman's role as an Officer of parliament would uniquely enable him to remedy. The Ombudsman's Office then found that it would have been wrong for merit to be considered as legislation did not allow appeals against SES appointments. Informal comments from the Deputy Ombudsman then noted that Queensland's legislative arrangements allowed irresolvable injustices to occur. Yet the Ombudsman's Office failed to raise this clear legislative defect with Parliament.
• While minor crises are an immediate symptom of 'amateur-isation', this is hard to prove though it may be the precursor to serious problems. For example, the NetBet affair involved a foolish decision (granting an Internet Casino licence to a company with ALP connections) which was made after following correct procedures (as determined by Criminal Justice Commission and Queensland Audit Office investigations). However those conclusions were reached after only looking for procedural irregularities (a fact confirmed in the CJC's case in a letter dated 11/10/99), Neither investigation could then evaluate whether the Public Service really did what should be expected of it, ie ensure that 'correct procedures' resulted in sensible decisions in the public interest. The CJC also stated that it regarded Public Service politicisation as a complex and important issue, but that it lacked the resources to do anything about it. [An aside: the CJC would also have great technical difficulties in dealing with the main impact of politicisation - ie reduced professional competence - for reasons like those outlined in Note 5. None-the-less Public Service weakness due to politicisation has important consequences in terms of matters which are within the CJC's ambit. Firstly a weak Public Service can do less to detect and resist overt official misconduct. Secondly, poor management of economic affairs translates into numerous communities and individuals who suffer the social effects of (relatively or absolutely) low incomes, which provides a breeding ground for crime. Thirdly, the Government becomes more susceptible to providing public resources to 'con-artists' who may offer plausible, but technically inadequate, proposals for dealing with issues of public concern. The dividing line between this and blatant official misconduct can be pretty hazy].
• Public Service amateur-isation seems likely, sooner rather than later, to lead to damaging under-performance in financial management functions which the Auditor General might detect. I wrote to the Auditor General about this in December 1999, suggesting that serious consequences are likely because, for example: (a) government must suffer losses from unanalysed competitive disadvantages facing GOCs; (b) intangible public assets are being destroyed by politicisation, which makes a mockery of building a balance sheet of tangible public assets through accrual accounting; (c) useful social institutions, the professions, are (partly) threatened by politicisation; (d) risk management can't be effective when 'appearances' (to satisfy political needs) are valued but objective 'reality' (which professionals used to introduce to government) is not (e) Managing for Outcomes is a sub-standard framework for managing public finance; and (f) capability to achieve future results is being undermined by inadequate attention to the non-financial performance indicators which reveal more about this than financial data do. [The Auditor General's response was non-committal, while the Parliamentary Public Accounts Committee (to whose attention the issue was also drawn) indicated that such concerns would not be considered].
• Ultimately major failures in policy development and implementation may be the most serious impact of 'amateur-isation' of the Public Service. A knowledgeable observer recently described Queensland's present policy environment as the weakest in his memory. Such criticism tends to be supported by, for example, trendy economic 'repositioning' plans in DSD's Innovation: Queensland's Future which may achieve their political goal of impressing interest groups, but are unlikely to be commercially relevant (see my letter 5/11/99). But Parliament has no agents able to identify (before failure has actually occurred) what standard of such work the community should expect - and there are (essentially) no capable independent institutions which address such issues.