Policy advising is an area in which the APS has a greater capacity for institutional creativity than would be available to it while acting simply as groundskeeper and referee during the contest for the ministerial ear. It is also an area in which the public service has been regarded as having what the Public Service Commissioner has described as a ‘natural advantage’ related to its ‘impartiality and focus on the national interest’,^[29] as well as its grasp of the history of Commonwealth institutions and its understanding of the connections between them:

Like the government, the APS is meant to consider a broad public interest, and for this reason the former is assumed to see particular value in the advice of the latter. This is probably an optimistic assumption, given that ‘just how small the core public sector can become without jeopardising the public interest is still open to debate.’^[31] And in any case, although the APS may rise above sectoral interests in providing government with impartial advice, it would be deliberately naive to argue that impartiality, even in the presentation of factual material, necessarily constitutes a reliable advantage in the view of all ministers and their advisers in a contestable environment. This is because, as in the case of the weapons of mass destruction:

If the numbers provided by the relevant public service agency do not support the government’s preferred position, a public servant can be directed by the minister to buy in a new data collection. If the minister is dissatisfied with a departmental legal opinion, a public servant can be directed to commission a legal opinion from a nominated lawyer in a private sector firm. Where necessary, the minister can also use the reputation of the public service for apolitical professionalism to establish the independence of those alternative inputs (‘research commissioned by my department has found …’). This is not a problem for the government: a government is entitled to look for other opinions and there are many cases where it does so. It is, however, a problem for the contestability of the public service if it is repeated too often. What the public servant may gain from insisting on the integrity of departmental data and the reliability of departmental legal advice is an irritated minister and an increased likelihood of being bypassed in future when advice is required. If, conversely, the department sees its way clear to editing its factual or legal advice to government to support the government’s anticipated preferences, then it has effectively compromised its longer-term natural advantage to enhance its short-term contestability. A good minister would quickly get over any irritation with advice that has that has obvious integrity, and would appreciate the pitfalls of relying on ‘advice’ designed only to support a possibly poorly informed decision. But not all ministers have such appreciation; nor do all their advisers.

Take the further case of the marketing of government policy decisions. Formerly a political responsibility, media management has moved in recent times to a more central position on the responsiveness agenda. According to the former Prime Minister John Howard: ‘[t]he public service is a lot more conscious now of the need to explain, the need to justify, the need to defend.’^[33] According to advice prepared for the public service and drawing on interviews with ministers, secretaries and advisers, the ‘willingness to market Government policies’ is a key value creating factor for good policy advising.^[34] ‘Marketing’ here may mean anything from to explaining the decisions of government in public forums; to social marketing, as with anti-smoking campaigns; to making public relations ‘part of the wider strategic management decision-making process’.^[35] In all of these cases, ‘there is a fine line between explaining government policy and selling it, and between using marketing to achieve program objectives and implement policy initiatives, and becoming partisan’.^[36]

Clearly, it is not always a straightforward exercise to draw the line between explanation and selling, particularly when one is ‘a lot more conscious now … of the need to justify, the need to defend’. In particular it is not straightforward when the final speech or media material is ministerial (and not public service) and raising concerns where it is understood that material has been shaped to suit the government’s purposes may, in some cases, do little more than revive old and unwelcome debates long since laid to rest. Public servants ought to ensure that whatever facts are presented in the media are accurate, but can generally be expected to remain silent when countervailing facts are omitted. It is improper—a breach of the Code of Conduct—to seek to do otherwise in public, and there is an ‘understandable reluctance of public servants to risk penalties (including jail) for revealing how advice has been manipulated’.^[37]

There are further gradations of media support. It is possible, for example, to provide the facts about a set of legislative provisions but remain silent about the systemic disadvantages of that legislation for particular groups of people, or keep one’s own counsel concerning the legal underpinnings of reassuring phrases like ‘prohibitions on duress’. Or, showing more responsiveness, public servants could prepare material for the minister that sets out the facts truthfully but misleadingly. For example, they could highlight increasing numbers of Australian Workplace Agreements (AWAs), overstating the rate by assuming that no affected workers resigned, were promoted or were dismissed.^[38] Or they could proceed beyond factual material into the territory of explanation and from there slip into the region presided over by party political polemic.

These issues have most recently and specifically been debated in relation to the high-profile involvement of a public servant in the Government’s WorkChoices media campaign. Barbara Bennett was appointed as head of the Workplace Authority in 2007, because, according to the relevant Minister, ‘of the fact that I think Barbara has the capacity to be a very public face of the Workplace Authority’.^[39] And indeed her face became public almost immediately, appearing in a prominent television media campaign, ‘Know where you stand,’ created by the advertising agency responsible for the ‘Chains’ advertising campaign introducing the GST. The ‘Know where you stand’ campaign responded to research into public perceptions of the Government’s industrial legislation that reported ‘‘key emotions’ in the community of fear, panic, insecurity, cynicism, distrust and disempowerment over Work Choices’.^[40] In the televised segments, Ms Bennett was to be seen advising any such concerned citizens that there were many myths around about individual contracts, and that ‘the biggest myth is that employees are alone and unprotected and that's just not true’. She went on to speak about the role of her Authority while footage showed her and other officials conferring and pointing at documents. This is believed to be the first time a public servant has been used in such a campaign—or, in the Minister’s words, has been ‘such an important component of the advertising’.^[41]

While the agency head’s behaviour in this case appears to exceed what Supporting Ministers, Upholding the Values calls ‘assisting with media presentations on technical matters’,^[42] it was defended by her minister’s office on the ground that she ‘was merely fulfilling part of her role as a public servant: explaining policy, and giving important factual information about the workplace relations system’.^[43] In the view of the last Public Service Commissioner, the ‘Barbara Bennett advertisements’, as they came to be known, reflected poor judgement about how much ministerial support is too much, for a number of reasons including the controversial nature of the policy area, the imminence of the election, the ‘myth-busting’ language used and the fact that the public servant concerned appeared ‘more as an advocate than an explainer’.^[44]

The present Public Service Commissioner took a more black letter approach to the Bennett advertisements, making a statement to The Australian that ’public communication by public servants explaining to stakeholders how new policy arrangements will work is not inconsistent with APS values’.^[45] While this statement is open to interpretation—one suspects deliberately so—the Prime Minister was able to cite it in Parliament, where he noted that ‘firstly, the “Barbara Bennett advertisements”, as [Mr Rudd] calls them, are legitimate information campaigns; and, secondly—not only that—they are completely in accordance with the APS Values of the Public Service Act, as certified by none other than the Public Service Commissioner, Lynelle Briggs’.^[46] These comments serve to focus analysis on the endlessly debatable question of where factual information leaves off and political advocacy begins. Is ‘if you need help or advice just call us on the workplace info line’ sufficient to constitute ‘explaining policy, and giving important factual information about the workplace relations system’? Does what the Minister called ‘the face behind the name Workplace Authority’^[47] also represent important factual information?

To what extent does the increasing pressure to compete with other service providers to government push the envelope on what public servants are prepared to do? Should public servants be concerned when—as one public servant in the Department of Communication, Technology and the Arts is reported to have put it in 2007—they ‘have one brief—shoot down Labor’s plan and promote the Government’s plan’?^[48] The ‘natural advantages’ of the public service as set out by the Public Service Commissioner—its reputation for impartiality, institutional memory, grasp of whole of government intersections, and broad perspective on the public interest—should mean that public servants are comfortable with the presence of other players in the field. But interest groups, private sector think-tanks, academics, NGOs, and consultants have their natural advantages as well, particularly those who are on the high ground of the uneven playing field under a given government. They are not required to reveal who is paying for their research. They are not expected to remain silent if their research is manipulated. They are able to act as stalking horses for radical policies, access and use the media, encourage their constituencies to support the legislation of the government of the day and encourage political donations. They can work in concert with government when they like and point vigorously to their independence when it suits them. They are only required to be transparent if the government is paying them and wants them to be. Setting aside the academic institutions, most of them do not have to be accountable for the quality of their legal, scientific and financial advice. Take, for example, the reported case of advice to the Blair Government on the cost implications of a Private Finance Initiative (PFI) for infrastructure improvements to the London underground:

If such practices and scenarios reflect wider reality, or even pockets of reality, they make old-style policy advising—clarifying objectives, identifying the alternative means of achieving those objectives, considering the consequences of each alternative, and evaluating each set of consequences—look very clunky. They make old-style responsiveness—providing advice that is ‘frank, honest, comprehensive, accurate and timely’ according to s.10(f) of the Public Service Act—look lumbering. They can make the pursuit of a ‘more traditional approach to public service’^[50] an uphill battle.