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Political pull

Note that this page is under review. It has not yet been updated to reflect changes to the Public Service Act 1999 and Public Service Regulations 1999, or contained in the Australian Public Service Commissioner's Directions 2013, that came into effect on 1 July 2013. Agencies may continue to use the guidance for reference, but should be aware that it may not reflect current legislative requirements.

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The file should be used in conjunction with the following text. It does not include captioning.

(A Minister and an APS branch manager are interviewed separately on objectives of better outcomes for the Australian community)

Brenda Jones—Local Member, Government party: Being elected to serve my community at the last election was a real honour. With this electorate being so marginal it could have gone either way. My office is in Downheart, a little town in the centre of the electorate. We've had some hard times recently with the closure of the canneries and the meat works. There are a lot of young people without jobs.

Les Brown—Branch Manager, ECO Skills project: My team was responsible for managing the tender process for the Eco Skills training centres. It was an election promise to establish the centres in areas of high unemployment.

It was a huge process—the stakes were extremely high—and the pressure was very intense. With contracts of more than $70 million being awarded, you know, I made sure that all my staff understood, and were clear about, each step in the tender process—I didn't want there to be any mistakes that could undermine the integrity of the process.

The tender evaluation went really well. There was a small moment at the Christmas drinks when Kylie from the Minister's office said she wanted me to make sure that the Hugtree consortium was on the short list. I told her to pull her head in basically—I mean, obviously respectfully—and that was the end of it. She's just a kid—very inexperienced. And, you know, next time she will know better than to ask.

Integrity and ethical behaviour in procurement is really important throughout the process. And that's why we went to the trouble of having an independent panel undertake the evaluation and make the recommendation to the Minister. It's easier to prevent a problem than deal with it after the event.

Michelle Fox—Ministerial adviser: When Brenda approached the Minister to make the tender announcement in her electorate, we thought it was a good idea. Her electorate is marginal and it would be a big boost for the local economy. We expect the skills centre to employ about 50 staff, have 500 trainees and inject $20 million a year into the surrounding community. It's a big coup.

Brenda Jones—Local Member: My husband heard that a friend of his, who owns a local company called Hugtree Training, was part of a consortium that won the tender for a new Eco Skills training centre in our electorate. I thought that it would be a great opportunity to raise the profile of the project if I made the announcement at the upcoming Downheart community Harvest Festival. All the regional media would be there. I didn't think it would hurt my profile, either, to be associated with a project that will have such a positive impact on the community.

I rang my niece, Kylie, who works in the Minister's office, to float the idea, and she was really helpful.

Les Brown—Branch Manager, ECO Skills project (ashen faced and shocked): Well the big announcement is due to be made later today. I didn't much like the idea of the local member making an announcement. I would have preferred the Minister to do it with representatives of the winning consortium—and it looks like I was right to be concerned. The Opposition seems to have got wind of the outcome and they're claiming the selection has been influenced by Brenda's lobbying, helped along by Kylie who, as it turns out, is Brenda's niece. I mean, I had no idea.

But that's not all. It just gets worse. I took receipt of an FOI request last week from a reporter at the Daily Bugle asking for papers relating to the tender.

Going through the files this morning I found a letter which seems to suggest that Hugtree Training contributed to the local member's electoral campaign.

I don't know what to do. Both my Division Head and Deputy Secretary are travelling and they're out of mobile range. What advice do I give the Minister? Should I let the launch go ahead? Does this mean that I have to re-run the whole process again?

Reflecting on the exercise : Political pull

The APS must serve the government of the day, working within, and to implement, the elected government's policies and outcomes. Ministers and the APS share an objective of achieving better outcomes for the Australian community.

The principles of good public administration, embodied in the APS Values, lie at the heart of the democratic process and the confidence the public has in the way public servants exercise authority when meeting government objectives.

Building and maintaining a constructive relationship with Ministers and their Offices is a key responsibility of APS employees. In matters that are politically sensitive, it is especially important for the APS to provide Ministers with advice that is accurate, comprehensive, timely, and, above all, factual. The duty of the APS to advise government can sometimes include providing 'bad news'.

The APS should never engage in party political activity on behalf of Ministers. Nor should it engage in any undertaking that has the appearance of such activity.

To maintain public confidence in government administration, all government processes should be conducted, and have the appearance of being conducted, without bias or inappropriate influence. Decisions about procurement must be made impartially and must follow the legislative framework, in particular, the Public Service Act 1999 and the Financial Management and Accountability Act 1997.

Relevant Values and elements of the Code of Conduct

  • The APS is apolitical, performing its functions in an impartial and professional manner (s.10(1)(a) of the Public Service Act).
  • The APS has the highest ethical standards (s.10(1)(d) of the Public Service Act).
  • The APS is openly accountable for its actions, within the framework of ministerial responsibility to the Government, the Parliament and the Australian public (s.10(1)(e) of the Public Service Act).
  • The APS is responsive to the Government in providing frank, honest, comprehensive, accurate and timely advice and in implementing the Government's policies and programs (s.10(1)(f) of the Public Service Act).
  • An APS employee must act with care and diligence in the course of APS employment (s.13(2) of the Public Service Act).
  • An APS employee must maintain appropriate confidentiality about dealings that the employee has with any Minister or Minister's member of staff (s.13(6) of the Public Service Act).
  • An APS employee must use Commonwealth resources in a proper manner (s.13(8) of the Public Service Act).
  • An APS employee must at all times behave in a way that upholds the APS Values and the integrity and good reputation of the APS (s.13(11) of the Public Service Act).

Key issues

The tender process:

Was the tender process conducted appropriately? Would it appear to an outside observer to have been conducted appropriately? Would the situation be different if an independent evaluation panel had not been used? Is the value of the procurement relevant? Is there a real likelihood of a conflict of interest?

Should the tender process be recommenced? If so, why? Are there any legitimate grounds for excluding Hugtree from a new tender process?

Can Les show that the tender process complied with all relevant legislative and procedural requirements? Has he kept proper records of the process?

Working with the Minister's Office:

Did Les handle Kylie's comment at the Christmas drinks appropriately? What (if any) other action could he have taken? Did Les have an obligation to pursue the matter further?

What advice should Les, or his department, provide to the Minister in light of the FOI request and the Opposition's claim that the tender process was biased?

The announcement:

Was Les right to be concerned about the announcement being made in Brenda's electorate? Should Les have voiced his concerns—and, if so, to whom? Is it relevant that Brenda's electorate is a marginal one?

What will it look like if the launch goes ahead? And what will it look like if it does not? Whose decision should it be?

Tips

Agencies and Ministers' Offices should maintain open communication that would allow potentially problematic situations to be raised (and managed) promptly and without hesitation.

Employees at all levels should be aware of the options and resources available to them for advice on sensitive issues—for example, senior management, their Agency Head, and the Ethics Advisory Service.

Delegates for procurement processes should make themselves aware of any potential conflicts of interest (real or perceived) that tenderers may have, and might wish to stipulate that tenderers declare any potential conflict of interest as part of the tender process.

All employees should keep thorough and accurate records, in line with their agency's recordkeeping policy. In developing these policies, agencies should be guided by the National Archives of Australia.

Useful references