Section 1: Working with the Government and the Parliament

Last updated: 17 Feb 2016

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1.1 Summary

1.1.1 A good relationship between Australian Public Service (APS) agencies, ministers and their offices is central to effective government.

1.1.2 The APS Values, set out in the Public Service Act 1999 (PS Act), help APS employees to build effective working relationships between the political and administrative arms of government.

1.1.3 Each of the Values is of equal importance. Particular situations may arise where there is tension between the different Values that are to be applied. For example, it is right to be responsive to ministers and their advisers by providing quick advice, but it is also right to follow due process and established protocols. In such cases, the 'right' course of action may not be set out by statute, instruction or policy and good judgement will need to be exercised.

1.1.4 This section provides guidance on how the APS Values apply when interacting with ministers and their advisers and when interacting with the Parliament. The section also provides guidance on public servants appearing in government advertising and awareness campaigns.

1.2 APS Values

1.2.1 The APS Values are set out in the PS Act. The Australian Public Service Commissioner's Directions 2013 (the Directions) determine the scope and application of the Values. Agency heads and employees are required to comply with the Directions. The Directions that are most relevant for those employees whose duties involve working directly with the Government and the Parliament are outlined below in relation to each of the Values.

Committed to Service

1.2.2 The Committed to Service Value provides for an APS that is professional, objective, innovative and efficient, that works collaboratively to achieve the best results for the Australian community and the Government.

1.2.3 The Directions about this Value require employees to encourage innovative thought and support innovative solutions. Employees should be open to good ideas, thinking beyond traditional boundaries and challenging the 'business as usual' approach.

1.2.4 Employees should contribute to a culture of achievement, and support a unified APS that is focused on serving the Government and the Australian community. They should identify and manage potential areas of risk, and be responsive to ministers—taking account of resource and time constraints—by:

  1. being knowledgeable about the Government's policies
  2. understanding the relevant issues and options
  3. understanding the Government's objectives and the environment in which it operates.

Ethical

1.2.5 The Ethical Value provides for an APS that demonstrates leadership, is trustworthy, and acts with integrity at all times.

1.2.6 APS employees must comply with:

  1. all relevant Australian laws
  2. appropriate professional standards
  3. the APS Code of Conduct (the Code).

1.2.7 One element of the Code is that APS employees must maintain appropriate confidentiality about dealings with any minister or a member of a minister's staff.

1.2.8 APS employees should act in a way that models and promotes the highest standard of ethical behaviour, following through on commitments made and having the courage to address difficult issues. Employees should take account of whole of government issues and concerns in developing and implementing policies and programs.

1.2.9 When working with the Government, to uphold this Value employees should act in the right way, as well as the technically and legally correct way. The 'right decision' or the 'right action', depending on context, is likely to require having regard to the intent of a relevant law or policy. In practice this means employees need to understand the reasons for the law or the policy. The more senior the employee, the greater the expectation that they will have this understanding.

Respectful

1.2.10 The Respectful Value provides for an APS that respects all people, including their rights and their heritage.

1.2.11 APS employees must treat all people with dignity and recognise that all people have value. Employees should also collaborate, and be open to ideas in policy development, implementation, program management and regulation.

1.2.12 It is generally appropriate that employees engage relevant stakeholders, including those affected by decisions, and have appropriate regard to their views when developing new approaches.

1.2.13 Employees should maintain respectful and constructive relationships with ministers and their staff. This is best achieved when all parties have a sound appreciation of their respective roles and boundaries.

Accountable

1.2.14 The Accountable Value provides for an APS that is open and accountable to the Australian community under the law and within the framework of ministerial responsibility.

1.2.15 APS employees are answerable to ministers for the exercise of delegated authority and, through them, to parliament. Employees should be able to demonstrate that actions and decisions have been made with appropriate consideration, and that resources have been used efficiently, effectively, economically and ethically.

1.2.16 Employees should understand the accountability relationships in the Australian constitutional and legal system. They should assist ministers to fulfil their accountability obligations to parliament and the public, and meet their own accountability obligations as employees, in particular through good recordkeeping.

1.2.17 Employees should document significant decisions or actions consistent with the Archives Act 1983 and to a standard that will withstand independent scrutiny. Good recordkeeping allows others to understand the reasons why a decision was made or an action taken and can guide future decision-makers. See Section 4: Managing information for further information.

Impartial

1.2.18 The Impartial Value provides for an APS that is apolitical and provides the Government with advice that is frank, honest, timely and based on the best available evidence.

1.2.19 Advice provided to the Government must also be:

  1. objective and non-partisan
  2. relevant, comprehensive and unaffected by fear of consequences, not withholding important facts or bad news
  3. mindful of the context in which a policy is to be implemented, the broader policy directions set by the Government and its implications for the longer term.

1.2.20 APS employees must serve the needs of the Government. This entails providing the same standard of high quality policy advice and implementation, irrespective of which political party is in power and irrespective of an employee's political beliefs. Employees should ensure that their actions do not provide grounds for a reasonable person to question their ability to serve the government of the day.

1.2.21 To uphold this Value when working with the Government, employees should provide forthright and professional advice; and develop robust and innovative options, supported with persuasive argument, good analysis and strong evidence. Once the agency's advice has been considered, the option chosen by the Minister should be implemented to best effect.

1.2.22 Impartiality does not mean that the APS gives equal treatment to all sides of politics. It is not the role of the APS to serve the Opposition. Employees should generally have limited contact with the Opposition and other non-government parties. At the same time, it is a routine and proper role for employees to provide information to the Parliament about the implementation of the Government's policies, including when appearing before parliamentary committees.

1.3 Australia's structure of government and the role of the Australian Public Service

1.3.1 APS employees, ministers and parliamentarians have specific roles within Australia's democratic system of government.

1.3.2 Ministers and the APS are part of the executive branch of government. They operate under the law within a democratic political system where the ultimate accountability of governments to the Australian people is through the electoral process. A framework of accountability and external review applies whereby the courts and tribunals, and offices established by the Parliament, such as the Auditor-General and the Ombudsman, operate as checks and balances within the system.

1.3.3 The Parliament is the legislative branch of government. Parliament makes laws, authorises the Government to spend public money and scrutinises government activities.

1.3.4 Accountability relationships in the Australian constitutional and legal system may be summarised as:

  1. governments are accountable to the Australian people at elections
  2. ministers are responsible for the overall administration of their portfolios and accountable to the Parliament for the exercise of ministerial authority
  3. public servants are accountable to ministers and, through them, to the Parliament for the exercise of delegated authority. [1]

1.3.5 Within the laws established by parliament, it is ministers who decide what is in the public interest and how it should be brought about. Agency heads and employees advise and implement. The role of the APS is to serve the government of the day and to assist in developing and delivering its policy agenda and priorities. Ministers make decisions and issue policy guidelines. Employees must comply with those guidelines when implementing policy. Such ministerial decisions and policy guidance must, of course, comply with the law.

1.3.6 The third arm of government is the judiciary which interprets and applies the law. In Australia, the High Court is the final court of appeal on federal matters and matters dealt with by state and territory courts.

1.3.7 Employees should have a sound appreciation of the respective roles of the Parliament, the executive and the judiciary.

1.4 Complying with the law

1.4.1 Employees have a responsibility to comply with all applicable Australian laws. As well as acts administered by, or relevant to, specific agencies, this responsibility also includes laws applying to the APS as a whole, such as the PS Act, the Public Governance, Performance and Accountability Act 2013 (PGPA Act) and laws dealing with anti-discrimination, privacy and freedom of information. Laws frequently refer to the powers and authority of ministers.

1.4.2 It is common for there to be subordinate legislation and agency instructions and/or directions binding on employees. For example, accountable authorities issue instructions to officials under the PGPA Act, and managers may issue directions to employees about the performance of their duties. Employees may also be required to apply guidelines and take account of judgements by the courts.

1.4.3 Employees should be familiar with the statutes and instructions that apply to them and the scope of ministerial authority in legislation they administer. They should also know when and how to obtain more information about relevant legislation and instructions.

1.4.4 Ministerial decisions and policy guidance must, of course, comply with the law. [2] If an employee has doubts about whether a ministerial decision or policy guidance is consistent with the law, they should bring the matter to the attention of their manager.

1.5 Working with ministers' offices

1.5.1 Ministerial advisers have a political role to help the Minister fulfil his or her aims across the portfolio. Employees are responsible to the Minister through the agency head and have an apolitical role. Employees help the Minister to draw on the depth of knowledge and experience in the APS and ensure due process under the law.

1.5.2 The way in which ministers' offices interact with agencies will vary from one office to another. However, some general principles apply.

  1. It is normal practice for ministers and ministerial advisers to deal directly with a range of employees, not just the agency head. This allows the Minister and his or her advisers to seek advice from those with expertise or experience in the particular topic under consideration. It is important that more senior employees are kept informed and the agency head immediately advised about matters of particular sensitivity or significance.
  2. Not all communication will be in writing. However, care should be exercised to ensure that oral communication is limited to routine issues.
  3. When policy advice is given orally, it should be followed up in writing.
  4. Differences might on occasion arise in the relationship. These are best resolved through discussion. Employees should discuss any concerns they have with their manager. Where a disagreement does not involve the agency head directly, his or her intervention may be needed to resolve the issue.
  5. It is ministers who have final authority and accountability to parliament, and employees, through their agency head, are responsible to their Minister. [3] The relationship between the APS and ministerial advisers needs to recognise this final authority. Employees should, if in doubt, check that directions conveyed by advisers have ministerial authority and that professional APS advice has been conveyed to the Minister.
  6. If a public servant needs to contact an adviser from another ministerial portfolio, in most cases contact should be made through their Minister's office. It is usually advisable that the relevant agency in the other portfolio be involved in any discussions. Similarly, an adviser needing to contact an employee in another portfolio would generally make contact through that portfolio's ministerial office.

1.5.3 Ministerial staff are employed under the Members of Parliament (Staff) Act 1984 (the MOP(S) Act) administered by the Minister for Finance and the Special Minister of State. A Statement of Standards for Ministerial Staff published by the Special Minister of State, sets out the standards that ministerial staff are expected to meet in the performance of their duties. The standards include provisions covering working relationships between ministerial staff and employees.

1.5.4 Ministerial advisers provide important guidance about the Minister's policy and requirements and, by so doing, help employees to be responsive. However, they cannot direct employees.

1.5.5 Ministers can engage a limited number of consultants under the MOP(S) Act to work on specific projects, or conduct reviews on their behalf or under the direction of the agency head. This requires the Prime Minister's approval. It is important to establish a common understanding between all parties about the consultant's role and reporting requirements.

1.6 APS employees working as ministerial advisers

1.6.1 APS employees may apply to work in a minister's office under the MOP(S) Act. An APS employee who is engaged under the MOP(S) Act is granted leave without pay from the APS. [4]

1.6.2 Working in a minister's office is an opportunity to gain experience and should contribute positively to a person's career in the APS. Public servants can also work for Members and Senators including the Leader of the Opposition and shadow ministers.

1.6.3 When an adviser's position is vacant for less than 12 weeks, it is generally the responsibility of the Minister's portfolio department to provide staffing relief. This relief may be provided by an APS employee. In such cases the person performs the duties as an APS employee, and the Minister's office and the agency head negotiate working arrangements. It is important for each party to understand that the APS employee remains bound by the Code and the APS Values, including the requirement to act impartially. The parties should ensure that there is a common understanding of what is expected of the particular employee's behaviour.

1.7 Departmental liaison officers

1.7.1 Departmental liaison officers (DLOs) working in ministers' offices are employed under the PS Act and the APS Values, Employment Principles and the Code apply. The DLO's role and employment arrangements should be agreed between the Minister and the agency head. It is generally good practice for the DLO to report to the Minister's chief of staff, day-to-day. The DLO's role is to facilitate a cooperative and professional relationship between the agency and the Minister. A DLO must not be involved in party political activities or political advocacy. A DLO should be recalled when an election is announced unless it is appropriate for them to remain in the Minister's office to manage liaison work, while not being used directly or indirectly for party political purposes.

1.8 Questions from parliament

1.8.1 The legislature cannot direct the APS in its day-to-day work. However, it is a responsibility of the Parliament to scrutinise the activities of government and to examine the expenditure of public money. Employees may be required to provide information directly to the Parliament, in particular to its committees.

1.8.2 Employees may be required to brief ministers, prepare for parliamentary debates, draft answers to parliamentary questions or draft letters of response to Members, Senators and constituents.

1.8.3 Public servants assist ministers to fulfil their accountability obligations by providing parliament with full and accurate information about the factual and technical background to policies and their administration. This may include reasons for the policy. It does not extend to providing personal comment on the policy. By resolution of the Senate: [5]

an officer of a department of the Commonwealth or of a state shall not be asked to give opinions on matters of policy, and shall be given reasonable opportunity to refer questions asked of the officer to superior officers or to a Minister.

1.8.4 Employees must behave honestly and with integrity. Answers to questions from parliament or its committees must always be accurate and any errors corrected quickly. Employees must never deliberately mislead the Parliament. If necessary, they should consult the Minister before answering committee questions and should not refuse to answer questions allowed by the committee chair, unless directed by the Minister. They should help explain the Government's policies and decisions, although they are not obliged to reveal policy advice given. Where questions from a committee are likely to be politically sensitive, they should discuss the matter beforehand with the Minister or the Minister's office. Employees should always seek to maintain the trust of ministers and the Parliament in their professionalism.

1.8.5 Further guidance on appearing before parliamentary committees is available in the Government Guidelines for Official Witnesses before Parliamentary Committees and Related Matters (February 2015) available from the Department of the Prime Minister and Cabinet's website .

1.8.6 The guidelines also include advice about providing information to an individual Member of Parliament (MP). Arrangements for this should be settled by the Minister and agency head, unless legislative provisions pertain. A request from an MP for a briefing on a policy or program should be forwarded to the Minister for advice on handling the request. MPs requesting information are treated the same as a constituent or community group seeking information. See Section 4: Managing Information for more information.

1.9 Exercise of statutory powers

1.9.1 APS employees are frequently required to exercise statutory powers, often delegated by, or under authorisation from, ministers or other office-holders. Some statutory powers are exercised independently of ministers. The accountability requirements will vary according to the nature of the power.

1.9.2 In all cases employees must understand the requirements of the legislation when exercising statutory powers. This includes understanding how the legislation interacts with other laws, any requirements for procedural fairness and the degree of independence of the decision-maker from the views of others.

1.9.3 APS employees provide services on behalf of the Government to a wide range of groups and individuals and in doing so:

  1. must adhere to the law, the Government's policies and guidelines and not pursue a personal view about the public interest
  2. are accountable to the Government to provide quality service
  3. are accountable for their decisions. See Section 2: Relationship with the public for more information.

1.10 Working with external review bodies

1.10.1 A number of agencies and offices provide checks and balances on the actions of government. The Auditor-General, the Commonwealth Ombudsman and the Administrative Appeals Tribunal are examples of such bodies. APS employees are expected to be frank, open and cooperative when providing information to these bodies as part of external review processes.

1.11 Political activities

1.11.1 APS employees should not engage in party political activities at work, such as distributing political material, producing political publications or conducting market research. While acting as private citizens, APS employees nonetheless enjoy most of the same rights to participate in the political life of the community as other citizens.

1.11.2 When APS employees make public comment in an unofficial capacity, it is inappropriate to make comment that is, or could be reasonably perceived to be, made on behalf of their agency or the Government. See Section 6: Employees as citizens for more information.

1.12 Explaining Government policy

1.12.1 APS employees have an important role to explain policies and the reasons behind them, to assist the elected government to achieve its policy aims, and help meet program objectives. A wide variety of situations occur where employees may be required, as part of their duties, to explain the Government's policies. Examples include:

  1. engaging directly with the public by working in call centres or 'on the counter' at government shopfronts
  2. responding to correspondence from the public, including correspondence to ministers
  3. responding to media queries and participating in media interviews and discussions, including on radio and television
  4. participating in international meetings or in meetings with other Australian jurisdictions
  5. contributing articles to non-government newspapers, magazines and journals
  6. developing and appearing in written information material targeting the public such as leaflets, booklets and newsletters associated with the Government's policies.

1.12.2 Sometimes public servants, including agency heads, may be required to draw attention to a proposed Government policy, or forthcoming legislation, in order to canvass opinion or to prepare the community and stakeholders for change. This activity is consistent with the roles and responsibilities of public servants but care should be taken to explain the policy, rather than to advocate for it on political grounds.

1.12.3 When explaining the Government's policies and programs, an APS employee may need to counter community and stakeholder misconceptions. In doing so, employees need to be mindful that this explanation is not reasonably perceived as criticism of the Opposition or other political parties. A statement of the facts in neutral language is less likely to be perceived as partisan than directly refuting misconceptions.

1.12.4 APS employees may be required to explain the Government's policies when speaking at public forums and engaging external stakeholders. Employees need to do this professionally, and avoid partisan comment. Their approach to speaking publicly about policies needs to support public confidence in the capacity of the APS to remain impartial. See Section 4: Managing information for more information.

1.13 Election periods

1.13.1 The relationship between the Government and the APS is subject to particular scrutiny around elections. It is particularly important at that time for the APS to be seen to be politically impartial.

1.13.2 Employees need to be familiar with the Department of the Prime Minister and Cabinet's Guidance on Caretaker Conventions.

1.13.3 In summary, the caretaker conventions are a series of practices that have been followed by successive governments during the period preceding an election for the House of Representatives. Their primary purpose is to avoid actions that would bind an incoming Government and limit its freedom of action. A number of the practices are directed at protecting the apolitical nature of the APS and avoiding the use of Commonwealth resources in a way that advantages a particular party. The conventions deal with issues such as requests from ministers' offices for information or advice and the conduct of information campaigns during the caretaker period.

1.13.4 Guidelines apply to pre-election consultation with the Opposition under which shadow ministers may, with the agreement of the relevant Minister, hold discussions with appropriate APS employees.

1.13.5 The ordinary business of government continues during the caretaker period and the application of the conventions requires judgement and common sense. If employees are unsure about how to handle issues that arise during the caretaker period, they should raise the matter with senior agency management in the first instance.

1.14 Involvement of public servants in government advertising and information campaigns

1.14.1 APS employees have an important role to explain policies to assist the elected Government to achieve its policy aims and help meet program objectives. In some limited circumstances this may involve appearing in government advertising and information campaigns.

1.14.2 The Guidelines on Information and Advertising Campaigns by non-corporate Commonwealth entities set out the principles applying to information and advertising campaigns undertaken in Australia. These guidelines are published on the Department of Finance's website and are mandatory for APS agencies under the PGPA Act. During the period preceding an election for the House of Representatives the Guidance on Caretaker Conventions also applies. The Caretaker Conventions provide further advice on the handling of advertising and information campaigns during the caretaker period.

1.14.3 It is generally not appropriate, or necessary, for agency heads or employees to appear in government advertising or information campaigns. However, it may be appropriate for agency heads or employees to appear in the following circumstances:

  1. where their appearance is warranted on grounds of a demonstrated public interest, such as public safety or national security. A public servant can lend expertise and credibility, for example a Chief Medical Officer warning of a pandemic
  2. in recruitment campaigns where the use of public servants is designed to promote the attractiveness of a public service career, provided there are no political messages contained in the campaign.

1.14.4 If an agency head is in any doubt about the propriety of accepting a request to appear in government advertising or information campaigns they should consult the Australian Public Service Commissioner. Employees in such circumstances should consult their agency head. The Australian Public Service Commission's Ethics Advisory Service can provide employees with advice about the factors that they might take into account in considering their responsibilities in such circumstances.

1.14.5 This guidance is relevant for government advertising and information campaigns involving placement of advertising and information activities in any medium, including print, radio, online, cinema, television and out of home.

1.14.6 This guidance is not relevant for non-campaign advertising as advertising of this type is usually placed on a limited basis, contains only factual statements and has a low level of creative content. Examples are:

  1. auction and tender notices
  2. invitations to make submissions or apply for grants
  3. notification of date and/or location specific information, for example to attend a public meeting.

1.14.7 Any involvement of public servants in advertising and information campaigns must be consistent with the requirement for employees to be impartial in the performance of their duties.

Agency policies and procedures

  1. Agencies have found it useful to provide guidelines to employees, developed in consultation with the Minister, on handling interactions with the Minister and their office in an effective and professional way.
  2. Agency guidance might specify employees, or the level of employees, who are authorised to provide advice to the Minister.
  3. It may be useful to have in place procedures, agreed with Ministers, to handle media enquiries and make public statements.
  4. APS agencies should ensure that all employees who are likely to have communication with ministerial staff, including those employed in electorate offices, are aware of the Statement of Standards for Ministerial Staff and where it can be accessed.
  5. Agency guidance on advertising and information campaigns should refer to the guidance in Section 1.14 on employees appearing in advertising and information campaigns.
  6. APS employees may require training on the relevant statutes and instructions that apply to their work.

Footnotes

[1] In some statutory authorities, relevant legislation requires considerable independence from Ministers, and accountability direct to the Parliament.

[2] Agency or program legislation may specifically constrain ministerial direction.

[3] Section 57 of the Public Service Act 1999 sets out the roles and responsibilities of Secretaries of Departments providing, among other things, that they are the principal official policy adviser to the 'Agency Minister' and responsible for assisting Ministers to fulfil their accountability obligations to the Parliament to provide factual information about the operation and administration of the department.

[4] The Australian Public Service Commissioner's Directions 2013 (clause 7.4(2)) provide for a mandatory grant of leave without pay to work under the MOP(S) Act and for a right of return to the agency at the employee's classification level immediately before the leave was granted, or if the classification no longer exists, at an equivalent classification determined by the agency head.

[5] Parliament of Australia, Parliamentary Privilege Resolution, section 1, paragraph 16, 25 February 1988.