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3. Summary assessment

Over its 113-year history, AGD’s functions and portfolio structure have undergone a number of key changes. These included the separation of the Australian Government Solicitor in 1998, an increase in the department’s national security function following the September 11, 2001 terrorist attacks in the United States, and the more recent addition of

arts functions.

Throughout its history, the department has maintained a core function which has not changed; its support for the Attorney-General as First Law Officer (the principal legal advisor to the Commonwealth). The department also plays key roles in supporting its ministers’ responsibilities for law and justice, national security, emergency management and the arts.

A strong base

AGD is a well-performing department with a dedicated, intrinsically motivated workforce. External stakeholders frequently commented to the review team about the value the department’s subject matter experts provide in areas such as constitutional law, international law, and areas of national security and emergency management.

Staff mentioned to the review team that the Secretary and deputy secretaries are visible, accessible and have made tough decisions where necessary. These senior leaders are highly regarded internally and externally.

The department is internally and externally recognised for its agility in being able to bring appropriate resources and expertise to bear in a short time to work across traditional boundaries in response to urgent emerging issues. AGD often achieves this by establishing internal or whole-of-government taskforces. In a similar vein, the department is also responsible for establishing royal commissions.

The Secretary’s efforts to stimulate innovation and creativity have been widely acknowledged to have helped break down traditional thinking within the department. According to staff, the Secretary’s approach has helped AGD become more resilient, responsive to change and focused on continuous organisational improvement.

The department has benefited from sound financial management and leadership. Over recent years, it has prepared itself for tight fiscal times through proactive efforts to reduce costs and increase efficiency. This has included a number of small voluntary redundancy rounds to reduce workforce size, centralise recruitment with senior oversight to ensure only critical positions have been resourced, and reduce the number of EL positions.

For the most part, AGD has well-functioning corporate areas—led over time by a number of highly regarded Chief Operating Officers. Staff made positive comments to the review team regarding corporate solutions that the department has pursued in recent months. This includes the centralisation of the operational components of human resources (HR), finance, and information and communication technology (ICT) into a single multi-disciplinary area called the Service Centre. Staff and the small number of portfolio agencies that use the Service Centre commented positively on the services they receive. Divisions have also reported constructive quarterly meetings with the heads of the Strategy and Delivery Division, Corporate Division and People Strategy Branch. While it is too early to comment on the effectiveness of these initiatives, AGD is to be acknowledged for its continuing efforts to increase the efficiency and effectiveness of its corporate services.

The department has integrated the arts function effectively, with staff and portfolio agencies having commented that AGD made them feel welcome and supported. Staff in other areas of the department noted they are looking for ways to collaborate with, learn from and contribute to the arts function.

Capability for the future

Over time, it is likely that AGD and its portfolio agencies will continue to change focus and/or structure to maintain effectiveness and relevance in support of government priorities. Some feedback to the review team from various sources suggested that, at the time of the review, the department had yet to fully and effectively engage with the priorities of the current Government. AGD noted that it continues to tailor its approaches and interactions to help foster a stronger working relationship and demonstrate responsiveness as a trusted adviser to government.

With strong commitment from staff, the department is well placed to build on its current capability to help meet future challenges. The review team found that the department needs to continue to monitor and position itself for external changes and exercise strong organisational stewardship7 to build capability to:

  • work across its authorising environment8 to clarify its multiple roles and take on a greater role for leadership of the APS legal profession
  • become a stronger APS collaborator
  • refine its governance model
  • help establish a more integrated portfolio
  • strengthen internal connectedness
  • develop more consistent external engagement
  • improve its use of data, evaluation and knowledge management
  • continue to evolve its workforce planning practices
  • further build on its foresight capability.

These areas of capability improvement are further described in the following sub-sections.

Clarity of roles and Australian Public Service legal leadership

In interviews with staff and external stakeholders, the review team found different perspectives of the department’s First Law Officer and national security roles and mandate. To increase clarity across government and assist with internal planning and resourcing, AGD would benefit from proactively lifting its engagement within its authorising environment to outline and reach agreement on how it can best work with others to deliver the greatest value to government.

As a timely input, the Attorney-General has publicly stated that ‘the pre-eminent function of the (department) should be to become the principal legal adviser to government.’9 A number of APS agencies have supported this position and added that AGD should increase efforts to provide a professional leadership role for APS lawyers. This shift would require the department to develop additional internal capability and leverage expertise across the portfolio and APS more broadly, to succeed in what could be a significant change management process.

The National Commission of Audit has recommended that the Office of General Counsel be moved from the Australian Government Solicitor (AGS) back into AGD. If the Government accepts this recommendation, the department will need to consider what this additional capability and expertise means for its role in both the APS and in support of government. If government does not decide to merge parts of the AGS with AGD, the department will need to proactively work to build relevant internal capability to further support the First Law Officer and work with the AGS to better coordinate and leverage portfolio legal policy and advising expertise to further support the APS and government.

AGD’s role in supporting the Attorney-General in discharging national security responsibilities is ambiguous in some areas and interpreted differently by a number of key APS agencies. There would be broader benefit for government to clarify the roles, responsibilities and accountabilities of relevant Commonwealth agencies operating in the national security space, including multiple agencies within the Attorney-General’s portfolio.

Authorising environment 10

The authorising environment concept comes from the work of Professor Mark Moore of Harvard Business School. The Australia and New Zealand School of Government has used this work in its courses. The authorising environment concept is part of Professor Moore’s broader work that describes how effective public sector organisations deliver consistent public value.

The authorising environment concept explains that public sector organisations require authority to deliver on their functions. This authority comes in different forms and from different sources. There are ‘formal’ or ‘hard’ authorities, typically such as the authority granted through legislation, budget approvals, and a range of statutory, financial and administrative delegations. These are necessary, but insufficient, to enable an organisation to be successful.

There are also ‘informal’ or ‘soft’ authorities. These are the mission-critical people and organisations that support and authorise the scope of work and the manner in which work is undertaken (for example, as a leader or collaborator; both of which need the explicit support of those being led or inviting collaboration). In the case of a government department, mission-critical people include ministers, central agencies, other departments, portfolio agencies, and a wide range of stakeholders.

An organisation may receive a mandate and a description of its role and function through a formal authority, though this is seldom adequately explicit. Clarity and ‘real’ authority needs the support of informal sources and cannot be viewed as discretionary.

The ‘authorising environment’ is a dynamic environment in which authorities alter over time (for example, between organisations, over the roles people play and the extent of authority). Accordingly, an organisation needs to work with the people and organisations within its authorising environment on an ongoing basis, to minimise confusion and maximise operational effectiveness.

Governance arrangements

In recent years, the department has made significant progress in strengthening its internal governance arrangements. AGD has two key governance committees:

  • Executive Board: The Secretary chairs the board. All SES Band 3s are members, the Chief Financial Officer, head of HR and the head of Strategy and Delivery Division attend.
  • Senior Management Committee: The Chief Operating Officer chairs the committee.

    All SES Band 2s and 3s are members.

These governance committees are further supported by the:

  • Enterprise Information System Projects Board
  • Health and Safety Committee
  • Audit and Risk Management Committee
  • Protective Security Policy Framework Steering Committee
  • Workplace Relations Committee
  • Executive Reviews.

Staff commented to the review team that current governance committees have helped build cohesion and leverage expertise from across the department. Notwithstanding this, the review team is concerned about the efficacy of the current governance architecture. The department would benefit from reviewing and updating its governance structure, and further formalising committee reporting lines, responsibilities, decision making and accountabilities.

A review of committee membership would help to ensure that relevant business areas, and subject matter experts at varying levels, are more engaged in decision making. For example, greater line-area membership of the Enterprise Information System Projects Board would help ensure that the views of non-corporate business areas are adequately considered in ICT strategies and decisions.

A truly integrated portfolio

The department needs to work across its portfolio to influence and deliver outcomes on behalf of its ministers. This is more complex than in many APS portfolios as the Attorney-General’s portfolio is large, diverse and comprises a number of statutory agencies with a separation of powers from the Executive.

Portfolio agencies made positive comments to the review team about the department’s efforts in recent years to continue to strengthen senior relationships across the portfolio. Some areas of the department mirror these positive relationships at all levels. In the most part, however, stronger relationships with external stakeholders need to be developed throughout the department.

The Public Service Act 1999 outlines the role of departmental secretaries as ‘ensuring delivery of government programs and collaboration to achieve outcomes within the Agency Minister’s portfolio and, with other Secretaries, across the whole-of-government’.11 With this mandate, AGD’s Secretary has a role to play in working with the heads of portfolio agencies to ensure portfolio capability, stewardship and delivery. In discussions with the review team, some portfolio agencies expressed their desire to contribute more to the portfolio. The department has an opportunity to help develop stronger operational and policy links across agencies to ensure the portfolio’s capacity and capabilities are greater than the sum of its parts. As part of this, AGD could also facilitate more regular portfolio dialogues on cross-cutting policy and operational issues management. The department could consider working with portfolio agencies to develop a portfolio strategy.

Internal connectedness

AGD staff strongly identify with their work areas. This helps to unify people within departmental divisions. Due to the diverse nature of the work undertaken by the department, divisions often have unique subcultures, systems and processes. Understandably, this has led to divisional silos, which some staff report has resulted in divisional ‘patch protection’.

Within individual divisions or branches, there are examples of departmental good practice work on process design, project management, program management, grants management, stakeholder management, industry engagement, measurement, evaluation, data analysis, and policy development. These approaches are not shared across the department, and could be further leveraged to strengthen enterprise-wide capability.

Internal and external comments to the review team highlighted that direction setting on policy often happens at divisional level. The department would benefit from a more integrated approach to help develop a unified enterprise position.

Internal communication has been cited as variable across AGD, with a large number of staff commenting that the communication cascade relied upon to deliver many key messages to staff varies significantly, and in some cases breaks down entirely at divisional or branch levels. In response to staff requests for greater communication, the department has increased the number of messages delivered through emails to all staff. The quantity of these emails, combined with a busy work environment, has resulted in many deleting these messages without reading them.

To restore an effective internal communication flow, the department may benefit from improved targeting of audiences and messages, considering alternative, more dynamic communication channels and working top-down to ensure a consistent and effective communication cascade is restored. AGD may wish to consider making greater use of its intranet for disseminating messages.

External collaboration

External stakeholder comments to the review team reinforced the value that the department, in its various functions, delivers to government, the APS and the community. AGD has a diverse range of external stakeholders, which include:

  • Commonwealth government agencies
  • state and territory government agencies
  • international counterparts
  • industry and academia
  • non-government organisations.

Some areas of the department received very positive comments from external stakeholders. In particular, most industry bodies commented on timely and proactive engagement from areas such as the arts, telecommunications and classification. Stakeholders frequently commented on the value they place on their relationships with the department’s Secretary. These positive relationships regularly translated down to deputy secretary level; however, they became more variable further down the line.

Stakeholders regularly commented to the review team about the need for AGD to improve its interactions with stakeholders to:

  • play a stronger role as a team-member and supporter in areas where the department is not the lead agency
  • consult early with relevant stakeholders or explain the rationale for short timeframes where possible
  • enhance staff understanding of portfolio agencies’ operating environments
  • match the seniority of departmental staff to stakeholders in external meetings
  • improve continuity of relationships
  • improve knowledge management practices, including record keeping and hand-over processes to support more seamless changes in departmental contacts.

For AGD to take on a greater role for the leadership of the APS legal profession, external collaboration will become even more important. The department would benefit from shifting its focus in interactions with stakeholders from one of consultation and relationship management to that of greater engagement to promote a commitment to working in partnership.

Data, evaluation and knowledge management

External stakeholders regularly commented to the review team that AGD’s policy advice is too focused on a narrow legalistic interpretation. Feedback noted that the department needs to:

  • provide more pragmatic, solutions-based advice to assist government and the APS to navigate the legislative environment and deliver on intended outcomes
  • draw more on expertise across the portfolio
  • be more open to taking appropriate risks, rather than seeking to fully mitigate all risk
  • more systematically collect, access and interpret data from inside and outside the department.

Across AGD, there are pockets of better practice approaches for the use of data and evaluation. This includes the development of a design, delivery and evaluation framework by the International Crime Cooperation Division, the ongoing evaluation of family law reforms, and the use of data and evaluation by Emergency Management Australia.

More broadly, the review team found that evaluation and use of data varies across the department and is almost non-existent in a number of areas. AGD is well positioned to collect and (where possible) share a greater amount of data with other areas of the APS and academia. This would assist the evaluation of policy outcomes and develop a strong evidence base to inform future policy advice and assess whether the department is meeting its objectives. AGD needs to ensure it has, or can access, appropriate analytical expertise to support these activities.

Staff and external stakeholders reinforced that the department would benefit from more consistent and embedded practices for knowledge management. This includes the storage, access and transfer of knowledge and information within work areas, across the department and across the APS.

Improving capability in these areas would help AGD balance its largely ‘triumph of the immediate’ culture with a greater focus on longer term thinking and planning. This would support the department’s responsibility for organisational stewardship and help increase the credibility and rigour of its policy advice.

Workforce planning

In recent years, AGD has made significant progress in developing an enterprise workforce plan, identifying roles that require specialist expertise and broadening graduate recruitment to target more diverse expertise. Work has also been undertaken to improve leadership capability through training courses targeted at SES and EL level staff.

The department would benefit from identifying and leveraging expertise across the portfolio. This portfolio perspective could be used to inform workforce planning and help identify the expertise AGD needs. The department should continue its work to identify specialist positions, including the development of relevant career paths and succession planning to ensure that specialist subject matter expertise is appropriately prioritised and developed.

AGD also needs to ensure its workforce planning adequately caters for the recruitment and development of broad expertise including project management, economics, research, data and financial analysis, all needed to support the development of rigorous and holistic advice to government. Greater clarity of the department’s roles is crucial for informing workforce planning.

Foresight capability

Given the rapidly evolving nature of the public sector and issues confronting the Attorney-General’s portfolio, the review team believes the department needs to continue developing effective networks and ensure greater capacity for long-term planning, including horizon scanning. This will help ensure AGD balances its short-term priorities with the capability to anticipate and manage emerging issues in preparation for the long-term.

The department has begun to develop this capacity, with the Strategy and Delivery Division distributing a quarterly environment scanning publication to all staff, called ‘On the Horizon’. This publication outlines trends and developments in relevant policy areas and highlights some policy development approaches. This initiative is complemented by the development of the ‘Garran Strategy Series’. Based on scenario planning, the series aims to foster discussion between staff, portfolio agencies and external stakeholders on specific areas of policy.

The review team encourages AGD to continue its efforts to establish and embed processes for long-term thinking and horizon scanning to support the development of strong, evidence-based advice.

The way forward

Following the September 2013 change of government, there has been a shift in emphasis and priority to reflect the new government’s policy and election commitments. AGD is still to develop the understanding and working relationships needed to effectively deliver on this agenda. Further strengthening these and other key relationships, including with central agencies, will help the department confirm its authorising environment and allow it to reconcile its roles, functions, mandate and priorities with those of external stakeholders.

The review team heard that AGD needs to establish stronger operational and policy links across the portfolio and shift from a model of stakeholder coordination to stakeholder engagement. There is also an opportunity for the department to take on a greater role for the leadership of the APS legal profession.

Internally, the department would benefit from strengthening its governance structure and further working to unite across divisional boundaries. Similarly, it should identify and balance its current and future workforce requirements. More work is needed to develop more consistent practices for data analysis, evaluation and knowledge management and to build a stronger foresight capability.

AGD also needs to access appropriate change management expertise to fully deliver on intended capability improvements.

 

7 The Public Service Act 1999 describes the role of secretaries to provide departmental stewardship. Stewardship can be described as building the capability required by an organisation to deliver a high level of performance over the medium to long term. It often includes systems to monitor changes to the external environment and to foster an agile organisation that continuously learns and refines its own capability.

8 See ‘Authorising environment’ on page 10.

9  The Australian, ‘One Stop Shop’, 23 May 2014.

10 Mark H Moore, ‘Recognizing Public Value: The Strategic Use of Performance Measurement in the Public Sector’, Harvard University Press, 2014.

11 Public Service Act 1999, Section 57 (b)