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Public sector ethics in the 21st Century: The new vulnerabilities

The CommissionerThe Commissioner

Lynelle Briggs
Lynelle Briggs is the Public Service Commissioner. She has held this position since November 2004.

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Address by Lynelle Briggs, Australian Public Service Commissioner
Northern Territory IPAA:  2008 David Hawkes Oration 2008

Thank you Mr President and thank you, members of the Northern Territory Division of the Institute of Public Administration Australia.

I acknowledge the Larrakeyah people as the traditional owners of the land on which this Oration is being given.

I’m pleased and honoured to be asked to present the 2008 David Hawkes Oration.  David is something of a legend among Australian public service commissioners and their equivalents, not only because he was the Territory’s Commissioner for Public Employment for thirteen years but because of his energy, integrity and creativity.  In particular, he was the force behind the Northern Territory’s Public Sector Employment and Management Act 1993, which is widely acknowledged as a pioneering model of the sort of devolved, principles-based public sector legislation that most of the rest of us have now adopted.

I’m also pleased to be back in the Northern Territory.  While our administrations have different roles and responsibilities, I like to think that we may have a little more in common than most other Australian jurisdictions because we have the same basic administrative roots in the Commonwealth service rather than in various colonial systems.

I should mention here that I’ve used the term public sector in the title of this oration because up here you call yourselves the Northern Territory Public Sector.  My experiences, and most of the examples I use, come from the Australian Public Service (APS), that group of core Departments, agencies and organisations that are covered by the Public Service Act 1999.  The APS covers nearly 70% of the broader Commonwealth public sector. I hope nevertheless that what I have to say will have some resonance with your own experiences.

I believe that any discussion of public sector ethics and their vulnerabilities has to begin with an understanding of why they are particularly important.  After all, most organisations and institutions have values and ethical standards of one sort or another.  Principles like honesty, integrity, fairness, respect and loyalty are shared by public and private organisations alike.

What makes public sector ethics unique is that every individual in a particular jurisdiction—State, Territory or Commonwealth—has a stake in how public servants behave.

Citizens can choose whether to buy private sector products and services and they can choose whether and where they want to invest their money.  But they must all, in one way or another, pay taxes and rates and they are all affected, in one way or another, by decisions of the Government. 

The quid pro quo for this is that citizens in our democracy are entitled to, and expect, a particularly high standard of stewardship of the resources—intellectual, personnel, materiel and financial—that they have granted the public sector. These expectations include:

These assumptions are reinforced by what’s generally referred to as the ‘Westminster’ system, the key division of responsibility between the elected Government that is responsible for taking the decisions about policies and programmes, and an independent public service responsible for providing the advice and information that helps the Government make these decisions and for efficiently and effectively implementing them after they are made.  Under the Westminster system—which operates in all Australian jurisdictions, Commonwealth, State and Territory—citizens also have the right to expect that the Government, in deciding how it will use the powers and resources granted to it, has access to a high standard of professional, independent and impartial advice.

Given these expectations, what are the specific characteristics of an ethical public service under the Westminster model? 

I suggest there are three core interrelated elements:

The detail of how these expectations are managed and responded to will, of course, vary from sector to sector.  In the Commonwealth, the Rudd Government has given the APS a very explicit list of what it expects in terms of professionalism and integrity.  In his presentation to agency heads and the Senior Executive Service on 30 April this year, the Prime Minister made his expectations clear.  He advised that he wants to see:

What I want to emphasise here is a particular and consistent thread running through these expectations, including:

In other words, if the Australian Public Service is to function effectively in an increasingly fluid and globalised environment where, as we have seen in the last couple of months, conditions and circumstances can change overnight, then the public sector has to be able to tap into and exploit a broader range of ideas and views.  It must be outward looking and it must be flexible, innovative and adaptive in the way in which it shapes policies and delivers programmes.

This means developing new relationships with a variety of people and groups outside the public service.  It means working with and within different cultures and taking on new ways of thinking and new ways of operating.  It will mean being more innovative, more creative, more nimble and more entrepreneurial.  It will mean taking more risks, experimenting more, and trialling new approaches with uncertain results.

It will also mean working more closely with colleagues in State and Territory jurisdictions like yourselves, a theme emphasised once again by the Prime Minister in his 28 August speech, Quality Education: the case for an education revolution in our schools, where he pointed out that implementing educational and other reform is “going to take a new way of governing—particularly increased cooperation between federal, state and local governments, businesses and community organisations”.  The Government is also committed to using the Council of Australian Governments to progress reforms in key policy areas.

These trends have important implications for the way in which we manage ethics, and I want to flag them as a key issue for discussion when I get onto emerging vulnerabilities later in this oration.  I should add here that these trends reflect similar thinking in public sectors all over the world as they also confront an increasingly volatile environment, so they are likely to affect the way that all of us operate.

In the meantime, let’s look at our current ethical vulnerabilities, at least as far as the APS is concerned.  According to a range of indicators, the Australian Public Service looks pretty good.  We have a clear ethical framework in the APS Values and the APS Code of Conduct, which are set out on the Public Service Act 1999, which all employees must comply with and which agency heads and the senior executive service officers are required to model and promote.  We also have a broad body of policy and good practice guidance available to APS agencies and employees on the interpretation and application of the Code and the Values.

APS employees’ knowledge of the Values and Code of Conduct has been tested annually for the last five years, and during that time we have found growing recognition of the ethical framework and significant improvements—of the order of 25 percentage points—in compliance with it.  My 2007 State of the Service report found that:

These results are pretty close to excellent by any objective standard.  I should add here that while the 2008 figures are not yet publically available (they will be tabled in Parliament at the end of this month) and while slightly different information was gathered this time, the preliminary figures indicate that these standards are generally being maintained.   On top of this, contrary to world trends, other surveys show that Australians’ level of trust in government is increasing.

I’ve undertaken, as an in-house exercise, an analysis of the ethical state of the APS using an OECD checklist which enables public sector jurisdictions to measure, against a series of yardsticks, the systems they have in place for setting ethical standards, for fostering ethical behaviour, for monitoring ethical health, for dealing with misconduct and for keeping the public informed.  Again, the APS measured up pretty well against this checklist.  

I’ll also refer to the Transparency International Corruptions Perceptions Index which measures the perceived levels of corruption in countries.  In 2008, Australia’s public services scored 8.7 on the index, which ranks Australia equal ninth in the world (with Canada) in terms of being least corrupt out of 178 nations.  I should emphasise that the rating was based on all Australian public sectors—Commonwealth, State and Territory—so clearly none of us are as bad as the media sometimes likes to portray us.

There are, of course, areas where we are perceived to have problems.  Irrespective of our overall level of integrity, a number of high profile administrative incidents have brought the APS’s reputation into question.  Most of these—for example, the escape of equine influenza from the Eastern Creek Quarantine Station—were more the result of incompetence and carelessness than outright corruption or failure of integrity, (although it’s important to remember that the Australian Public Service’s ethical framework encompasses professionalism and diligence as well as honesty), and the organisations involved have moved quickly to make repairs.

But, I would have to say that one or two agencies still struggle to appreciate what our ethical codes are all about, and don’t understand that they sail close to the wind.  More often than not, this is due to agency leadership not appreciating that the public sector is different; that protecting the public interest is fundamentally different to protecting the bottom line or promoting particular Ministers’ interests; and that in the public sector we must treat our people well.  Any agencies that put “the way things are done around here” above the behavioural culture and standards set out in the public service Values and Code of Conduct will eventually find themselves in deepwater.   I cannot emphasise too strongly that our Values and the Code are fundamental to what keeps us sound, professional and safe.

The interface between the Australian Public Service and Ministers and their offices has been an issue for ethical debate, with some perceptions in the broader community about a growing ‘politicisation’ of the public sector.  The APS Values require us to be apolitical and impartial but they also require us to be responsive, to provide frank, honest, comprehensive, accurate and timely advice based on a full understanding of all relevant issues and options, the Government’s objectives and the environment in which it operates.

There is a view that the balance between independence and responsiveness has shifted and that responsiveness itself has come to mean simply telling the Government what it wants to hear.  While I believe that this view has been somewhat overstated, I also believe that there have been times when public servants have felt themselves under pressure to make decisions or tailor advice in ways that furthered a Government’s political interests.  That is why it is essential to create an environment where public servants believe that they can be frank in their advice and where the public has confidence that they will do so. 

As I indicated earlier, the Rudd Government has emphasised the need to reinvigorate the Westminster tradition and has moved to restore confidence in it through a series of initiatives around agency head appointments, Secretaries’ incumbency and remuneration, relations with lobbyists, advertising and information activities, the conduct of Ministerial staff, and proposed improved whistleblower and freedom of information arrangements.  When released later this month, my 2008 State of the Service report will show some dramatic results in this regard.

There are other areas of ethical vulnerability.  Let’s look at the issue of the misuse of information and communications technology (ICT), in terms both of unauthorised access to personal information (browsing) and the electronic storage and circulation of inappropriate material.  The level of misuse in the APS, at least on a service-wide basis, is not high, but when it occurs it tends to be concentrated in particular organisations, and it attracts a high level of publicity.  It also comprises a significant percentage of misconduct allegations.  In 2006-07, 51 per cent of employees investigated for misconduct were alleged to have had been involved in unauthorised access to personal information or improperly using email or the internet.  These breaches, when they were discovered, were dealt with promptly and effectively, but my concern is that they still occur at all. 

Harassment and bullying is another area where we are getting mixed messages.  The 2007 State of the Service Report revealed that 15 per cent of APS employees reported that they had been subject to harassment or bullying in the workplace.  The same report reveals that only 76 employees were investigated for misconduct involving harassment and bullying over the same period.  The difference is startling, even allowing for the fact that some cases of harassment and bullying may be resolved informally and that some concerns may relate to the same people.  Does it mean a culture where harassing or bullying is tolerated, or is critical performance feedback or refusing to accede to unreasonable requests still being misinterpreted by some staff as harassment or bullying, either deliberately or through ignorance?

These examples highlight a broader issue.  Despite all the messages and strategies, the courses and good practice guides, despite the surveys that show that most employees are aware of and understand the APS Values and the Code of Conduct, despite the responsibility of APS leaders to model and promote them, we can’t be certain that our leaders and employees will necessarily behave ethically or make the right ethical decisions in operational situations or that they will report wrongdoings.

While we are good at dealing with ethical crises when they arise, it would be far more preferable for us to be able to detect, identify, codify and respond to emerging ethical challenges quickly before they lead to serious problems.  I’m particularly conscious that while the public sector may have overall high ethical standards, it’s the few high profile failures that undermine stakeholder confidence in public sector integrity.

Let me flag this now.  The ability to identify and think strategically about ethical challenges and have systems in place to equip staff to meet them is the best guarantor of ethical health.  We are vulnerable until we can achieve this capability, particularly in an increasingly changing environment.

Let’s look at the environment.  As a result of employment policies, labour market pressures and other changes over the last decade, the APS is no longer a closed organisation, and I expect that this is the same in other Australian jurisdictions. In 2006-07, around 20,000 staff were recruited from outside the APS.  Just over half of these recruits were aged 30 and over.  A third were recruited to senior and middle management positions (APS 5 and above).  In other words, people with a variety of previous experiences in different employment cultures are moving into the public sector and many of them are occupying leadership positions.  We can no longer rely solely on long term workplace socialisation to ensure that staff understand and apply public sector ethics. 

The continuing emergence of new technologies and more diverse and informal means of communicating also raises ethical issues.  It means, on the one hand, that the public sector is increasingly going to have to use online communication, in particular, weblogs, or ‘blogs’, both to canvass community and stakeholder opinion in policy development and to provide information on policy and programme implementation.  It also means that individual public servants, both in their official capacity and in their private lives are going to have access to, or should we say be tempted by, a range of different on line vehicles for self expression—facebook, YouTube, Wikipedia.

The issue with online communication is the ease with which it can be accessed and speed and breadth with which it can spread, which means that one can never be certain of where and in what form it might end up.  This means that the public sector ethical issues around communication—information versus advocacy, private versus public comment, misuse of resources to circulate partisan or offensive material—will become exponentially more challenging to manage, making one of our key vulnerabilities suddenly a lot more complex.

But looming beyond these developments, and impacting upon them as a challenge in managing ethics, are the factors I mentioned earlier, the issues identified by Mr Rudd, and flagged by other governments and commentators around the world—that in order to develop effective policy advice and implementation in a rapidly changing environment, public sectors are going to have to broaden their strategic capabilities and use evidence more often to inform policy advice.  This will mean working with and drawing on a wide range of sectors, including academia, States and Territories, private enterprise, the not-for-profit or third sector and the community.  This has two crucial, interrelated implications for public sector ethics.

Firstly, as I’ve indicated, I already have concerns even now about the ability of all public servants to make the right ethical decisions in all situations.  How much more of a challenge will this become when many more of us will have to work in partnership with people and organisations with different cultures, different ways of working and, in some cases, different ethical outlooks and priorities?

In response to this key challenge, to encourage better ethical decision making in increasingly diverse situations, I believe that the APS needs to foster a new ethics educational drive.  This should include:

Let me be clear that I am not proposing simply that we do more of the same stuff that we have been doing off and on for years.  Instead, we need to ensure firstly that these initiatives recognise the changing world in which we operate and, secondly, that they actually facilitate confident and accurate grass roots ethical decision making. 

To take an example in relation to the first challenge, we will need new guidelines on public comment and ICT use to cover blogs. One of the issues we will need to cover is the ethical responsibilities of a blog moderator whose role is to monitor a Government site that is collecting public views and comment to help policy development.  The job of a moderator is normally to filter out irrelevant or offensive comment, but in an evidence gathering exercise it could be perceived as political censorship and a breach of the APS Value that emphasises apolitical and impartial advice.  We will need to look carefully at these sorts of issues.

Improving ethical decision making in the workplace turns on the role of public sector leadership.  The APS legislation requires our leaders—agency heads and the Senior Executive Service—to promote the APS Values and the APS Code of Conduct, including by personal example.  As a key element in a renewed ethics campaign, I want to encourage our leaders to be more proactive in promoting ethics in the workplace.  The most effective form of practical promotion is to have the conversation—to talk with staff about how to handle ethical challenges in the workplace and to run through examples of what can happen that they need to know about.  This not only increases their knowledge of how to apply the Values and the Code in the work place and about what is behind the decisions taken, but also opens up opportunities for reflection and enables employees to more confidently ask for help when ethical issues are testing them or to stand firm when under pressure.

Transparency is also a key element in the maintenance of ethical health in the public sector.  The more transparent the actions of governments are, the higher their ethical and administrative standards and the more comfortable the public will be that it is getting value for money; and that the resources it has granted the Government are being used efficiently, effectively and ethically.  Transparency—the assurance that actions will be open to scrutiny—is also key element in encouraging and maintaining ethical decision making in the public sector.  In recent forums I’ve been encouraging thinking and debate about the need for a more open and effective information disclosure environment, particularly in the areas of public interest disclosure (or ‘whistleblowing’) and freedom of information arrangements  The Rudd Government is committed to improving government transparency and, as I indicated earlier, is looking at options both for widening and strengthening the Commonwealth’s public interest disclosure provisions and for improving and streamlining freedom of information.

The second challenge is that, as we become more exposed to outside organisational cultures and values, we may have to think about the ways in which we interpret and manage our own ethics.  I’m not suggesting that the core public sector values under the Westminster system—independent, merit based, professional, inclusive, responsive and fair—are going to change in any way in the foreseeable future, but I am suggesting that the APS will need to identify and emphasise the common ethical values that we have with other sectors, to build bridges with them on the basis of these values and in some cases even modify our practices to take account of other cultures.

This key ethical challenge comes from the need identified by the Prime Minister to work more closely with outside organisations to enhance information, ideas and experience in policy development and implementation.  He expects this to include other levels of government in Australia and to involve a greater exchange of information and experience; the development, where appropriate, of systems that can work across governments; and higher levels of personnel exchanges to develop capabilities and to broaden outlooks.

This inevitably means that we will have common ethical issues to deal with.  As far as I am aware, all Australian States and Territories have their own sets of public sector values, principles and codes of conduct and while they differ in areas of detail, they express a similar basic ethical framework.  In the case of the Northern Territory Public Sector, as I understand it, the Public Sector Employment and Management Regulations set out principles of public administration, principles of human resource management and principles of conduct.  While I haven’t precisely mapped these sets of principles to the APS Values and the Code of Conduct, there are clear areas of common ground.  Both of our ethical frameworks emphasise independence and professionalism in the provision of advice to Government.  Both systems mandate merit, fairness and the prevention of unlawful discrimination in public sector employment.  Both systems require efficiency, integrity and client service.  Both systems require standards of personal behaviour that focus on courtesy, honesty, diligence and the management of conflicts of interests.  

I should also emphasise that the other State and Territory ethical frameworks generally cover a similar set of principles.

What I would like you all to think about is the case for a common national set of core ethical standards and principles that could apply to all Australian, State, Territory and possibly even local government, jurisdictions.  Such a system need not exclude elements that are jurisdiction-specific but it would mean that when we all work together to solve common problems, as I suggest we increasingly will, there will be core ethical standards that we can all subscribe to and work within.  It will also mean that all politicians will be aware of these common standards and, I contend, will be less prepared to push the public service to compromise national ethics standards governing all public officials.

Of course, there will be unexpected vulnerabilities looming over the horizon. Who would have predicted the recent global economic conditions?  And how will they impact on our working environment?  But not knowing what might be around the corner makes it all the more important that we do what we can now about meeting the challenges around what we do know within a clear ethical framework.

Furthermore, I cannot emphasise enough that in any society, no matter how well it usually performs, ethics are important and that ethical standards in the public sector should always be seen as potentially vulnerable.  Ultimately, they are dependent upon the quality, perspective and behaviour of the government in power and the standards of leadership demonstrated by the top of the public sector.  It is all too easy for “the way things are done around here” to become the accepted standard, rather than what is right, what is expected by the community, and what is actually required of public servants working in the public interest.  It is up to every public servant to be vigilant, to protect what is right; and to “call” bad behaviour and bad examples whenever they see them.  This should not be seen to be casting blame, but rather reinforcing high standards of public service integrity.

I would like to conclude by emphasising once again what I hope is a key message, namely that we can and must put in place systems, processes and training to ensure that leaders and employees know and understand their ethical obligations because we cannot be complacent that they will always make the right ethical decisions.  This is particularly important in light of the range of emerging vulnerabilities resulting from changing labour markets, from new technologies and from the need to think and co-operate outside our own “boxes” to meet national and global challenges, as well as from the existing challenges of operating ethically in a highly charged political environment. 

The solutions lie partly in rethinking the ways in which we embed ethics in the public sector workplace and also in building common ethical ground with the organisations with which we need to cooperate.  But they also require continuing vigilance about public sector ethical health.

Thank you

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