The key issue is the respective role of the political and administrative arms. Ministers are concerned to maintain closer control and that control is increasingly centralised around the Prime Minister and his office. There is nonetheless a major role for the administrative arm as part of program management, as well as lending legitimate support to ministers.
Excessive political control can constrain the capacity of public servants to serve the public interest in making information available, publishing documents and giving speeches. The Public Service also needs to take care not to have its communications resources devoted to partisan purposes. As mentioned, market research in particular can be used for partisan purposes and secretaries need to be confident that taxpayer funding for such research is justified and can be defended in Senate Estimates hearings.
A particular case in point concerns the sensitivities around senior public servants speaking directly to journalists: few do it nowadays and those who do, do so less frequently and less openly. Similarly, secretaries make fewer public speeches these days than in the past. I think this is unfortunate, while agreeing firmly that care is needed not to betray the minister’s trust and accepting there is a risk of misrepresentation by the media in order to create controversy. (I also believe it is wise for secretaries to try to avoid a high media profile, so that I do not favour them appearing before the National Press Club.) Seeking permission every time is also not really sensible: it can lead to unnecessarily cautious responses. While I have been pretty cautious, I believe secretaries should draw on their experience and judgment, recognising there is public interest in helping to explain government policies and to provide impartially some of the underlying analysis and research. Ministers should also recognise the professional standing and experience of their departmental secretaries and allow them some latitude on the understanding there will be discussion between them on handling politically sensitive matters.
Nonetheless, there is no easy answer here and sometimes even the most carefully considered comments to the media can blow up into political embarrassments. That is why some secretaries are just not willing to take any risk. My preferred approach, which occasionally got me into trouble when the media misused or exploited my comments or speeches, was just to wear it and move on, learning from the experience about who to trust and when and how to speak. I suspect most ministers and their staffers, however, would prefer a more cautious approach.
Table 9.4 Caught between a rock and a hard place
I accept I made an error of judgment at a late stage of the MRI scandal and yet I am still unwilling to shoulder all the blame.
Minister Wooldridge had tabled a statutory declaration by a departmental officer to support his statements that he had not divulged unauthorised information at a meeting with radiologists shortly before the 1998 budget. A radiologist subsequently wrote to the officer noting an omission in the declaration about his own presence at the meeting. I informed the minister.
Sometime later, a journalist and photographer camped outside my officer’s home, evidently aware of the problem with the statutory declaration. I rang the journalist to ask him to back off, that it was unfair to put a public servant under such media pressure. He agreed to do so if I would answer his questions: was I aware of the error in the statutory declaration and had I informed the minister.
I said yes to both questions and then immediately rang the minister’s office. The front-page story the next day reported my answers and the minister’s failure at that point to correct the parliamentary record. The minister and his office felt I had been more keen to protect my staff than to support the minister. I can see their point and agree I should have rung them first, but had I done so the story would have been essentially the same, and appeared the same day, and with no less prominence, and the officer would have been under unfair public exposure and criticism as well.
Table 9.5 Slaps on the wrist
After the government introduced the 30 per cent rebate on private health insurance premiums, I was invited to speak at a public conference of private health insurance and private hospital executives in Canberra. I gave the conference participants some background to the government’s policies on private health and Medicare, noting how important it was that the industry also took action to ensure its members got value for money and used competition among hospitals to do so. If they did not, and premiums again began to increase, the benefits from the new rebate would be put at risk.
The speech seemed to be well received and follow-up questions were sensible. There were no press stories for about a week. The Australian then decided to give it a beat-up with a headline that I was questioning the merits of the rebate.
The Prime Minister’s Office called me directly to ask whether the speech had been cleared by the minister and accusing me of improperly speaking on behalf of the government. I had not formally cleared the speech, but had sent a copy to the minister before it was delivered. The minister later told me it was a good speech, as it was important to put some responsibility back on the industry. The journalist rang to apologise for the headline on the story, but I was under no illusion: the view of the Prime Minister’s Office was that secretaries should not give public speeches unless formally cleared by ministers beforehand, and even then they were frowned on.
A related issue concerns how proactive media management should be. I recall a presentation at one portfolio secretaries’ retreat by a former Fairfax executive, which included the advice that governments (and departments) should supply positive news stories to crowd out negative stories. Health was cited as an example, where the public interest in health led to the allocation of considerable space and time by media outlets to stories of interest, which, if not filled with interesting material on medical breakthroughs or heart-warming stories of selflessness or courage or success through adversity, would be filled with stories of crises and hospital errors and so on. Some politicians and their media advisers might play that sort of game, but most of us were not persuaded that this would be consistent with the values of the Public Service.
The popular image already is that communications management is more often about spin than substance. The image might be a caricature, but nonetheless represents a real issue. Apart from the need for communications management not to be partisan (for example, through the level or nature of taxpayer-funded advertising and research), it is important not to allow media management to lead to excessive focus on short-term populist measures and insufficient consideration of the longer-term public interest and options that might serve that interest.
It is here that the media can be simplistic and self-interested. There is public interest in some limits to access to information. Politicians might try to press this too far, but equally the media often does not acknowledge the public interest in government having reasonable time and space, without the public constantly looking over its shoulder, to consider complex issues, canvass options widely, have frank discussion within the bounds of collective responsibility and receive frank and fearless advice from officials and political advisers. The press rarely if ever condemns someone who leaks confidential information, notwithstanding the breach of trust involved, and seems unable to recognise the irony of its own insistence on preserving the anonymity of its sources of information.
Secretaries, however, need to be careful to ensure decisions on access to information are made according to the law. If they or their officers hold the delegation, they must make their own judgments as delegates weighing up the public interest where appropriate without direction from ministers. In my time, I saw too many secretaries spend too much time trying to please their ministers by exploiting exemptions under the FOI Act or not keeping records, rather than acting with genuine impartiality and in the public interest.
Ministers are understandably uncomfortable about revelations, through FOI requests or other processes, of advice they have not accepted, which proves to have been sound or of events or reports that are embarrassing and hard to explain. Several warned me on occasions that public access to departmental advice would lead them to insisting on advice being oral only with no records that could be subject to FOI requests. I never took this too seriously, though no doubt I did dampen the forcefulness of some of my written advice and the tenor of records of some discussions in more recent years. I do not believe the courts systematically undervalue the public interest in keeping certain deliberations confidential; more likely is that ministers, and their public service advisers, undervalue the public interest in openness.
Table 9.6 Legal options to limit FOI versus legal obligations to create and maintain records
A meeting of all departmental secretaries in 2004 discussed concerns about the media campaign, led by The Australian newspaper, to challenge decisions (including the issuing of ‘final certificates’) to exempt documents from FOI. Discussion focused first on the definition of ‘documents’ and then, when the meeting was advised by Rob Cornall (Secretary of the Attorney-General’s department) that the legislation implied a wide definition, discussion turned to ways of limiting the number of documents held that were not unequivocally exempt from public release. Keeping diaries was firmly discouraged, those with ‘day books’ or similar were advised to destroy them at the end of each week or fortnight and it was suggested that good practice was to systematically review document holdings to destroy draft papers that were no longer essential for future work. Where possible, policy documents were to be managed as cabinet papers, which were exempt.
One secretary went so far as to boast that he never kept written records of conversations with the minister, but reported back to his departmental officers orally on decisions made and action to be taken.
Cornall was asked to provide further legal advice on how to gain exemptions from FOI coverage.
I expressed concern that the conversation was so one-sided. I noted the Auditor-General had frequently criticised the lack of adequate record keeping and asked Cornall to give us legal advice also on the obligations of public servants to make and to keep records. Cornall agreed that this was a sensible request. (As I recall, the subsequent advice provided was that there was no explicit obligation to create records, though the Public Service Act and the Financial Management and Accountability Act arguably implied some such obligation—for example, through the value of ‘open accountability’; the Archives Act certainly constrained the destruction of records once created.)
I also asked the secretary who claimed he did not keep records how he expected his staff to carry out the minister’s decisions, which he had relayed orally. Surely effective management, let alone the obligation of accountability, meant someone would make a record of the decisions.
A year later, when I was working in the Department of PM&C, I was intrigued by the systematic trawling of files, official and unofficial, to destroy ‘surplus’ copies of draft papers and other papers not essential for recording the decision-making process. There were also systematic arrangements to tie as much policy advice to cabinet papers as possible. The processes did not involve the destruction of any key documents, but were clearly aimed at limiting the risk of FOI (or parliamentary) requests for working papers being upheld.
A less significant but fascinating management issue in communications and media relations is handling the culture of good public affairs staff. The fact is, the best such staff are not like traditional public servants. They are often extroverts, do not like rules and processes, abhor authority, cut corners and speak out of turn. Any attempt to corral them, however, let alone replace them with classical bureaucrats, runs the risk of losing their creativity and effectiveness in their jobs. I tried, not always successfully, to give the public affairs unit some licence under the leadership of an older, more experienced person with media nous. On a couple of occasions, things went badly and I had to pursue disciplinary action against individuals who misused resources, but on the one occasion (in the Housing department) when I intervened more forcefully to impose much firmer controls, the downside was far worse, with the loss of several of my most talented and creative people.