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Sect 1.2 Working with the Government and the Parliament

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.

Relevant Values and elements of the Code of Conduct

APS Values

  • The APS is apolitical, performing its functions in an impartial and professional manner.
  • The APS is openly accountable for its actions, within the framework of ministerial responsibility to the government, the Parliament and the Australian public.
  • 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.

APS Code of Conduct

  • An APS employee, when acting in the course of APS employment, must comply with all applicable Australian laws.
  • An APS employee must maintain appropriate confidentiality about dealings that the employee has with any minister or minister's member of staff.
  • An APS employee must use Commonwealth resources in a proper manner.

The principles of apoliticism, impartiality, professionalism, responsiveness and accountability are at the heart of strong, productive relationships between the APS and the elected government. These Values need to be considered together as a set. Most of the time they complement each other. At times, they need to be balanced so that no single Value is pressed to the point that it conflicts directly with another.

APS employees, Ministers and parliamentarians operate under the law within a democratic political system in which there is ultimate accountability of governments to the Australian people through the electoral process. They also operate within a framework of accountability and external review where the courts, and various offices established by the Parliament such as the Auditor-General, tribunals and the Ombudsman, operate as checks and balances within the system. A sound appreciation of the respective role of the Parliament, the executive and the judiciary is essential (see Chapter 1).

Ministers and governments as the elected representatives of the Australian people determine and define the public interest. Public servants advise and implement—assisting governments to deliver their policy agenda and priorities.

They share an objective of achieving better outcomes for the Australian community.

Reinvigorating the Westminster tradition: Integrity and accountability in relations between the Australian Government and the APS is a short guide that outlines the requirements and provides tips for public servants to help them meet their obligations to the Government of the day, to Parliament and to the public under a Westminster system.

Apolitical, impartial and professional

The role of the APS is to serve the Government of the day: to provide the same high standard of policy advice, implementation and professional support, irrespective of which political party is in power. This is at the core of the professionalism of the APS.

The APS works within, and to implement, the elected government's policies and outcomes. While it is not independent, it is well placed to draw on a depth of knowledge and experience including longer-term perspectives.

The Government's Standards of Ministerial Ethics, which replaces Chapter 5 of the Guide on Key Elements of Ministerial Responsibility (the Guide) (last issued in 1998), emphasises that Ministers must accept accountability for the exercise of their powers and the functions of their office. The Guide is being revised.

Good advice from the APS is unbiased, evidence-based and objective. It is politically neutral but not naïve, and is developed and offered with an understanding of its implications and of the broader policy directions set by government.

APS employees have a role to assist Ministers with their parliamentary and public roles, such as drafting speeches.

In the course of their employment, however, APS employees should not engage in party political activities such as distributing political material, nor should they use office facilities or resources to provide support of a party political nature such as producing political publications or conducting market research unrelated to programme responsibilities (see Chapter 15).

APS employees are required to be impartial in performing their official duties. In implementing government policies and programmes, decisions must be made on merit.

APS employees have an important role to explain policies and analyse the reasons behind them, to assist the elected government to achieve its policy aims and help meet programme objectives. This can involve speaking at public forums and engaging external stakeholders. APS employees need to do this professionally, and avoid partisan comment. Their approach to speaking publicly about policies needs to support public confidence in the ongoing capacity of the APS to be impartial.

Agencies have found it useful to have in place procedures, agreed with Ministers, to handle media enquiries and make public statements.

Employees should discuss any concerns they have about what constitutes an effective apolitical and impartial role with senior management. Senior management, in turn, may need to discuss the matter with the Minister or the Minister's office.

Responsive

Responsiveness to the Government demands a willingness and capacity to be effective and efficient. Responsive APS employees:

  • are knowledgeable about the Government's stated policies
  • are sensitive to the intent and direction of policy
  • take a whole-of-government view
  • are well informed about the issues involved
  • draw on professional knowledge and expertise and are alert to best practice
  • consult relevant stakeholders and understand their different perspectives
  • provide practical and realistic options and assess their costs, benefits and consequences
  • convey advice clearly and succinctly
  • carry out decisions and implement programmes promptly, conscientiously, efficiently and effectively.

Responsive advice is frank, honest, comprehensive, accurate and timely (APS Value (f)). The advice should be evidence-based, well argued and creative, anticipate issues and appreciate the underlying intent of government policy. Responsive advice is also forthright and direct and does not withhold or gloss over important known facts or 'bad news'6.

Responsiveness demands a close and cooperative relationship with Ministers and their employees. The policy advisory process is an iterative one, which may involve frequent feedback between the APS and the Minister and his or her office.

Responsive implementation of the Government's policies and programmes (APS Value (f)) is achieved through a close and cooperative relationship with Ministers and their employees. Ministers may make decisions, and issue policy guidelines with which decisions made by APS employees must comply. Such Ministerial decisions and policy guidance must, of course, comply with the law7 and decisions by APS employees must meet their responsibilities for impartiality and efficient, effective and ethical use of resources.

Accountable

Accountability is one of the foundation values of the APS, helping to define its role as a key institution in Australia's democratic system.

APS employees work within an accountability framework comprising a continuum of accountability relationships8:

  • Governments are accountable to the Australian people at elections
  • Ministers are responsible for the overall administration of their portfolios and accountable to the Parliament for the exercise of Ministerial authority
  • public servants are accountable to Ministers for the exercise of delegated authority and through them to the Parliament
  • public servants are also accountable for their performance through agency management systems.

Public servants must also conform with the law, and may be held to account through the legal system.

APS employees have a role to assist Ministers to fulfil their accountability obligations to Parliament and the public. This may include briefing Ministers, preparing for parliamentary debates, drafting answers to parliamentary questions or drafting letters in response to Members and Senators.

Although the legislature cannot direct the APS in its day-to-day work, it is the responsibility of Parliament to scrutinise the activities of government and to examine the expenditure of public money. APS employees may be required to provide information directly to the Parliament, in particular to its Committees.

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, but not comment on policy. The Senate resolutions provide that:

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.

APS employees must be honest and professional. Answers to questions from Parliament or its Committees must always be accurate and any inadvertent errors corrected quickly. APS employees must never 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 government 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. APS employees should always look to maintain the trust of both Ministers and the Parliament in their professionalism.

Further guidance on appearing before parliamentary committees is available in the Government Guidelines for Official Witnesses before Parliamentary Committees and Related Matters (November 1989) available from the Department of the Prime Minister and Cabinet's website.

This guide also includes advice about providing information to individual Members of Parliament. Unless there are legislative provisions that apply, arrangements for this should be settled by the Minister and agency head.

APS employees must be frank, open and cooperative when, under external review processes, they are providing information to statutory officers or bodies such as the Commonwealth Auditor-General, the Administrative Appeals Tribunal, the Federal Privacy Commissioner and the Commonwealth Ombudsman.

APS employees are frequently required to exercise statutory powers, often delegated by, or under authorisation from, Ministers or other office-holders. The accountability requirements will vary according to the nature of the power. When exercising statutory powers, APS employees must understand the specific requirements of the legislation, how it interacts with other relevant legislation and legal principles, any requirements of procedural fairness, and the relative degrees of responsiveness to, and independence from, the views of others, including Ministers and agency management. Some statutory powers are exercised independently of Ministers.

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

  • must adhere to the law and to the policies and guidelines of the Government and not pursue a personal view about the public interest
  • are accountable to the government to provide quality service
  • must deal with all individuals and groups fairly, effectively, impartially and courteously.

Practical application of the accountability Value also involves meeting statutory and administrative reporting requirements. This includes reporting on outcomes and outputs, performance targets and indicators through such processes as budget documents, business plans and annual reports. It also requires accounting for the effective, efficient and ethical use of Commonwealth resources.

Accountability requires individuals to clearly understand their responsibilities under agency performance management arrangements. Processes for assessing individual performance should be linked to broader corporate planning and decision-making processes, setting strategic directions and priorities, and assessing organisational performance.10

Good recordkeeping is also essential to accountability. All significant decisions or actions need to be documented to a standard that would withstand independent scrutiny. Proper recordkeeping allows others to understand the reasons why a decision was made or an action taken and can guide future decision makers. (For further details see Chapter 3)

Complying with the law

APS employees have an unequivocal responsibility to comply with all applicable Australian laws, including:

There may also be regulations, formal directions, agency instructions and guidelines, drawing on legislative provisions or taking account of judgements by the courts. Employees should be familiar with relevant statutes and instructions and know when and how to obtain more detailed advice about them quickly and cost effectively.

Ensuring an effective relationship

Building and maintaining a constructive relationship with Ministers and their offices is a key responsibility of APS employees. Consistently working to the APS Values is crucial to such relationships, as are a sound appreciation of the respective roles and a spirit of cooperation and good communication.

Agencies have found it useful to provide guidelines to employees, agreed with the Minister, on handling such interactions in an effective and professional way.

It is normal practice for Ministers and ministerial employees to deal directly with a range of APS employees, not just the agency head. This is beneficial in that it allows the Minister and his or her employees to seek advice from those APS employees with the most expertise, or the most experience in the particular topic under consideration. More senior employees should be kept informed, and the agency head immediately advised about matters of particular sensitivity or significance. Agencies might also specify employees or the level of employees, who are authorised to provide formal advice to the Minister.

Although not all communication needs to be written, it is good practice to provide advice on key issues in writing, addressed to the Minister. File notes on significant decisions should also be created and retained.

Differences might on occasion arise in the relationship and they are best resolved through discussion and consultation. APS employees should discuss any concerns they have with their manager and ultimately the agency head. Where a disagreement does not involve the agency head directly, his or her intervention may be needed to resolve the issue.

On very rare occasions an agency head may have a serious disagreement with the Minister, or the Minister may have publicly criticised the agency. If the matter cannot be resolved through discussion, it is appropriate for the agency head to write to the Minister, setting out his or her concerns, clarifying the nature of the issue and options available, and seeking explicit written instructions on the action required.

An agency head might consult with colleagues such as the Secretary of the Department of the Prime Minister and Cabinet or the Public Service Commissioner and, depending on the issue, the Secretary of the Attorney-General's Department. If still concerned, the agency head can raise the issue with the Prime Minister. The Minister should always be kept informed.

In the event a Minister believes an APS employee is not upholding the APS Values, the Minister would normally raise the matter with the agency head. Concerns about an agency head may be raised with the Prime Minister, or with the Secretary of the Department of the Prime Minister and Cabinet, or the Public Service Commissioner. There is provision under the PS Act (s. 41(1)(f)) for the Commissioner to inquire into alleged breaches of the Code by agency heads.

Working with Ministers' offices

Ministerial staff are employed under the Members of Parliament (Staff) Act 1984 (the MoP(S) Act) administered by the Minister for Finance and Deregulation, and the Special Minister of State.

While the way in which Ministers' offices interact with agencies will vary from one office to another, there are some general principles that apply.

Much of the communication between Ministers and APS employees takes place through the Ministers' employees. APS and ministerial employees should work towards achieving a professional and cooperative relationship. In providing accurate and timely advice, trust is crucial.

APS employees, including agency heads, cannot always expect direct access to the Minister, and ministerial employees may contact APS employees other than the agency head directly for information.

Ministerial employees provide important guidance about the Minister's policy and requirements and, by so doing, help APS employees to be responsive. However, they cannot direct APS employees. In forging good relationships with ministerial employees, APS employees need to recognise their different roles and responsibilities. Ministerial employees have a political role to help the Minister fulfil his or her aims across the portfolio. APS employees are responsible to the Minister through the agency head and have an apolitical role to help the minister draw on the depth of knowledge and experience in the APS, provide a longer-term perspective, and ensure due process under the law.

It is Ministers, of course, who have final authority and accountability to Parliament, and APS employees, through their agency head, are responsible to them11. The relationship between the APS and ministerial employees needs to always recognise this final authority. APS employees must, if in doubt, check that directions conveyed by advisers have ministerial authority and that professional APS advice has been conveyed to the Minister.

If a public servant needs to contact an adviser from a different ministerial portfolio, contact should be made through their own Minister's office and the relevant agency should be involved in any discussions. Similarly, an adviser needing to contact an APS employee in another portfolio should make contact through that portfolio's ministerial office and the relevant agency within their own portfolio should be involved in any discussions.

With the Prime Minister's approval, 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 (where agreed). In the latter case, it will be useful to establish a common understanding between all parties about the consultant's role and reporting requirements.

Supporting Ministers, Upholding the Values (2006) contains more information about dealing with Ministers' offices. It examines good practice principles associated with establishing the roles and responsibilities that define interactions between APS employees and Ministers and their advisers.

Code of Conduct for Ministerial Staff

The Code of Conduct for Ministerial Staff (the Code) was tabled in the Senate by the Special Minister of State, Senator Faulkner, on 26 June 2008.

The Code applies to ministerial staff employed under the Members of Parliament (Staff) Act 1984. It covers all ministerial employees, including the personal and electorate office staff of Ministers as well as consultants engaged by Ministers. The Code sets out the standards of personal integrity, professionalism and behaviour that are expected of ministerial staff, including a requirement to treat with respect and courtesy all those with whom they have contact in the course of their employment. It includes provisions covering working relationships between ministerial staff and APS employees recognising the distinct role of ministerial staff in providing advice and assistance to Ministers but making it clear that they do not have the power to direct APS employees in their own right and that executive decisions are the preserve of Ministers and public servants.

Together with the APS Values and Code of Conduct, the Code of Conduct for ministerial staff helps set the framework for the working relationship between agencies and ministerial offices. APS agencies should therefore ensure that all employees who are likely to have communications with ministerial staff, including those employed in electorate offices, are aware of the existence of the Code and where it can be accessed. In their dealings with ministerial staff, APS employees should also be mindful of their responsibilities under the APS Values and Code of Conduct to maintain appropriate confidentiality as well as remaining apolitical and impartial. References to the Code of Conduct for Ministerial Staff should be incorporated into internal agency guidelines.

Relations between APS employees and ministerial staff are usually carried out in a professional, productive and courteous manner, based on mutual respect. Agencies and Ministers should agree on ways of managing the relationship in an effective and professional way, with any difficulty that might arise in the relationship being resolved, if possible, through discussion and consultation at the level judged most appropriate to the issue. It is envisaged that only in the event that a matter cannot be resolved in this way, would it be necessary for an agency head (with the knowledge of his or her Minister) to draw the issue to the attention of the Secretary of the Department of the Prime Minister and Cabinet.

APS employees working as ministerial advisers

APS employees may apply to work in a Minister's office under the MoP(S) Act. While the person is employed under that Act they are on leave without pay from the APS12.

Working in a Minister's office is an opportunity to gain experience and should contribute positively to a person's career in the APS. Similar considerations apply when public servants work for Members and Senators including the Leader of the Opposition and shadow Ministers.

When a position is vacant for less than 12 weeks, it is generally up to the Minister's portfolio department to provide staffing relief. Usually, the agency would engage a person under contract. From time-to-time, however, a public servant may be required to undertake the work. In such cases the person performs the duties as an APS employee, and the Minister's office and the agency head negotiate working arrangements.

Departmental liaison officers

Departmental liaison officers (DLOs) working in Ministers' offices are employed under the PS Act and the APS Values and Code apply. The DLO's role and employment arrangements should be agreed between the Minister and the agency head and 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 called unless it is appropriate for them to remain in the Minister's office to manage ongoing liaison work, while not being used directly or indirectly for party political purposes.

Caretaker arrangements in the election period

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

APS employees need to be familiar with and follow the Department of the Prime Minister and Cabinet's guidelines about the operation of the caretaker conventions.

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. While 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. They deal with issues such as requests from Ministers' offices for information or advice, the conduct of information campaigns and political participation by APS employees during the caretaker period.

There are also guidelines on pre-election consultation with the Opposition under which shadow Ministers may, with the agreement of the relevant Minister, hold discussions with appropriate APS employees.

APS employees should refer to the Guidelines on Caretaker Conventions for detailed information. It is important to remember that the ordinary business of Government continues during the caretaker period and the application of the conventions requires judgement and common sense. If APS 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.

5 Available at www.apsc.gov.au/ethics

6 See ANAO publication, Some Better Practice Principles for Developing Policy Advice (2001)

7 Agency or programme legislation may specifically constrain ministerial direction

8 A description of accountability in the APS context is given in the Management Advisory Board publication, Accountability in the Commonwealth Public Sector (1993)

9 In some statutory authorities, relevant legislation requires considerable independence from Ministers, and accountability direct to the Parliament

10 See also MAC Report 1, Performance Management in the APS: A strategic framework (2001)

11 Section 57 of the Public Service Act 1999 sets out the responsibilities of Secretaries of Departments, providing that they are responsible for managing the department, 'under the 'Agency Minister'. Section 57 also requires Secretaries to assist Ministers to fulfil their accountability obligations to the Parliament to provide factual information about the operation and administration of the department

12 The Prime Minister's Public Service Directions 1999 (chapter 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