Insight 3: Behaving ethically and making ethical decisions

An APS employee is required to abide by the APS values, including the value “ethical”, which is described as:

The APS demonstrates leadership, is trustworthy, and acts with integrity, in all that it does.[13]

The ‘ethical’ value explicitly extends to ‘all’ that a public servant does. The Taskforce inquiries revealed limited consideration of ethical decision-making. Respondents repeatedly reflected on careers unstained by breaches of transactional and technical rules. They had acquired and maintained high level security clearances. Their procurement processes had withstood audit and external scrutiny. They had been celebrated and promoted for ‘delivering’ policies and services in accordance with established procedures. Too often, compliance with rules was cited as evidence of ethical behaviour. This narrow understanding of the ‘ethical’ value meant that little regard was paid to whether decisions were, in fact, ethical.

Analysing the ethical implications of an action during a Code inquiry is likely to be easier in cases of direct and clear misconduct such as fraud. However, where a Code inquiry needs to consider the decision process, this is more complex and nuanced. Cases with subtle ethical dilemmas require active or dynamic consideration of ethics when making decisions.

In the case of the Scheme, ethical considerations are not confined to the question of whether there was a lawful basis for the Scheme, but also whether the Scheme represented sound and fair public policy. The conduct of respondents was considered in this light, deliberating whether the decisions taken had regard to the impact on members of the Australian public in pursuing the legitimate public policy objective to reduce fraud in the welfare system.

For example, a significant feature of what became Robodebt was that data provided by the Australian Taxation Office about the income an individual had received in a year was averaged over 26 fortnights and compared with the data the individual had provided to Centrelink about the fortnights they had claimed certain benefits. This would only accurately reflect the individual’s actual income in any reported fortnight if the individual received a regular and consistent income stream. In the event of a significant discrepancy between what the individual had reported to Centrelink and this ‘averaged’ estimate, the individual would be presented with the data and requested to provide evidence in support of any alternative estimate they believed was appropriate. Prior to Robodebt, Centrelink would assist individuals by using statutory powers to seek pay slips or bank statements on their behalf. Under the Robodebt Scheme, welfare recipients, some of whom were itinerant, were now required to make their own inquiries about pay periods possibly some years beforehand. Effectively these individuals had to disprove the assessment based on averaged ATO data or the averaged data was assumed to apply and a debt was raised if this assessment of their income exceeded that reported to Centrelink. The averaged assessment was applied automatically unless the individual could satisfy that test, even if the individual had not received the letter from Centrelink. However, at critical times in some agencies, there is little evidence of any concern or systematic assessment of whether such an approach was ‘the right or reasonable thing’ to do in respect of vulnerable and possibly itinerant people with little access to records for periods that, in some cases, were some years beforehand.

During interviews, some respondents were asked to reflect on the ethical implications of their conduct. It appeared that few actively considered the ethics of the Scheme during its inception and implementation, as opposed to whether it could be defended on legal or policy grounds. Applying a critical ethical lens to the Scheme or their own conduct does not appear to have been part of many respondents’ decision-making process.

Similarly, few of the referred individuals were able to reflect on their conduct within the broader concept of integrity in the APS Values. Few were able to identify the significance of integrity at the SES level, or that integrity might mean demonstrating fearlessness and candour when giving advice to senior leaders and Ministers.

Many agencies deliver standardised training to APS employees and contractors on the Code and the APS Values. The training is delivered when they commence employment and yearly thereafter. However, this may not be sufficient in all cases, particularly where the content of the training does not change from year to year or relies on clearly unethical behavioural examples such as misuse of public funds. APS employees should also be encouraged to understand the ethical impacts of decisions regarding public policy and its implementation, and how to manage the obligation on the APS to give effect to an elected government’s policy objectives.

As employees become more experienced in the APS and are promoted to more senior positions, the challenges and decisions they face are likely to become more complex. Understanding the obligation to not only act ethically through behaviour, but also to be cognisant of decision impacts is critical and inherent for ethical leadership. APS employees should be supported to escalate concerns about ethical impacts of policies and programs as an obligation within the APS Values.