Table of Contents
There is a bundle of components constituting the legal regulation of public sector employment. To a large extent, these are the same components that regulate private sector employment: contract (both express and implied terms), awards and agreements made under industrial/workplace relations legislation, other specialist and general statutes (for example, occupational health and safety, and anti-discrimination laws), and general law (such as tort and criminal law). There have always been, however, some distinctive components and weightings in respect of public sector employment, such as the dismissal at pleasure principle, the application of administrative law, and a more prominent role for specialist, detailed legislation. At any time or place, the precise mix of employment law components in both the public and private sectors varies. Different mixes of these components affect the complexion and character of the employment relationship, and produce different patterns of power, protection and accountability.
The civilian public sector in Australia is complex and diverse. Across the three levels of government there are nine separate public services; eight police services; state and territory based public education and health systems; thousands of statutory authorities and government business enterprises conducting activities ranging from insurance to broadcasting, postal services to research, electricity generation and distribution to the running of cultural and arts institutions. The organisational diversity is matched by variations in the legal framework for employment. This chapter focuses on the Australian Public Service (‘APS’) as a core segment of the public sector. Occasionally examples are drawn from other areas to illustrate principles that have broad application and to provide comparisons.
The chapter depicts the legal framework of contemporary APS employment by charting changes that have occurred in the past 40-odd years. The APS of the 1970s was in the traditional mould of Australian public service employment but was on the brink of substantial reform. It had been subjected to a comprehensive review by the Coombs Royal Commission in 1974–76;[1] the Commonwealth’s ‘new administrative law’ implemented between 1975 and 1977 was to affect not only the interaction between government and citizens but also employment within the Service; and pressures were building for fundamental restructuring of the economy, including the public sector. The first part of this chapter gives an overview of the shape of Australian public sector employment law at that time, highlighting some contentious issues and showing how the legal framework worked to serve the ‘constitutional’ function of public services in a Westminster-derived system — a function of providing policy advice to the government of the day and implementing the government’s policies and programs. The second part analyses the changes that followed, in particular changes in the nature and content of specialist public service legislation and the decentralisation of employment responsibilities, and explores the potentially adverse impact on the APS’s constitutional function.
Awards and agreements made under the industrial/workplace relations legislation have for most of the past century set rates of remuneration and conditions such as hours and various forms of leave. These mechanisms are covered in Chapters 4 and 5, and there is only limited discussion in this chapter.
In contrast to the traditional position in England, where the relationship between public servants and the Crown was generally regarded as non-contractual until the late twentieth century,[2] in the Australian colonies from the nineteenth century there was no doubt that a public servant’s contract is ‘his chief right, the very corner-stone of all his rights and privileges’.[3]
There were two principal concerns that influenced the English position:[4] while ordinary contract involves mutually binding obligations, not until 1970 was it settled that civil servants had an enforceable right to pay,[5] and secondly, the dismissal at pleasure principle (to be discussed below) gave the Crown a unilateral power not possessed by private contracting employers. Thus the civil service has been regulated under Crown prerogative by way of Orders-in-Council, which authorise the making of regulations and instructions about employment in the civil service by the relevant Minister.[6] This ‘internal’ regulation[7] is not legally enforceable, though the practical implications have been limited, given the conventions of the model ‘good’ employer, and especially as in the latter part of the twentieth century, general employment legislation on matters such as unfair dismissal has been made applicable to public sector as well as private sector employment.[8]
After Federation, there was a series of High Court decisions affirming that the relationship between public servants and the Crown in Australia was contractual.[9] In the leading case, Lucy v Commonwealth (‘Lucy’), a public servant’s appointment had been invalidly terminated according to the terms of the Commonwealth Public Service Act 1902 and the Commonwealth Constitution, and he succeeded in obtaining damages for wrongful dismissal, that is, for repudiation of the contract of employment.[10] Knox CJ explained the relationship between statute (in this case the Constitution as well as the public service legislation) and contract:
[I]t is admitted, that the plaintiff was wrongfully dismissed or removed from the Public Service of the Commonwealth. In so dismissing him, the Commonwealth committed a breach of the contract of employment into which it had entered with the plaintiff, it being a term of that contract, by virtue of sec. 84 of the Constitution and sec. 60 of the Commonwealth Public Service Act, that the plaintiff should preserve all his existing and accruing rights, including the right to remain in the Public Service during his life or until dismissal or removal for some cause specified in the South Australian Acts...[11]
The analysis of Knox CJ in Lucy reveals that while public and private sector employees share a contractual basis for their employment, the public sector version is shaped by legislation. The role of special legislation has been a distinguishing feature of Australian public service regulation since the colonies gained self-government in the mid-nineteenth century,[12] and in the Commonwealth one of the Parliament’s first priorities was a public service Act, which resulted in the Public Service Act 1902 (Cth). So entrenched did the legislative model become that it might have appeared to be a legal necessity. But it was policy rather than law that generated the dependence on legislation for employment regulation in the public service. That is, there is no legal requirement — constitutional or otherwise — for a statutory framework.[13]
The legislation in the Commonwealth and the states followed a more or less standard pattern of substantial prescription. For example, the Public Service Act 1922 (Cth) (the‘PSA 1922’), which operated until 1999, detailed substantive rules and processes for the structure of the service, job classifications, appointment of the majority of staff to ‘offices’, which amounted in practice to permanent employment subject to probation, promotion, transfer, discipline and termination, whether by retirement, redundancy or dismissal. Discipline and dismissal were subject to due process and a right of appeal, and there was also an appeal system for promotions. The bulk of the employment powers were exercised by a central body — the Public Service Board (a ‘central personnel agency’).[14]
The classic public service statutes also authorised the making of subordinate legislation in the form of regulations, and determinations, notices, instructions, directions and guidelines issued by the central body. By the early 1990s, in the Australian Public Service, this tailor-made statutory regulation filled nine binders called the Personnel Management Manual.
Inevitably, this legislation impinged on the common law contract of employment. In a much-cited judgment in 1985, Brennan J in the High Court observed that
[t]he relationship between a civil servant of the Crown and the Crown has often been described as contractual, though the civil servant has been appointed pursuant to statute … If the relationship is contractual, the contract must be consistent with any statutory provision which affects the relationship. No agent of the Crown has authority to engage a servant on terms at variance with the statute. To the extent that the statute governs the relationship, it is idle to inquire whether there is a contract which embodies its provisions. The statute itself controls the terms of service.[15]
Thus, failure to comply with provisions in a statute about the appropriate appointing authority and procedure for appointment cannot be overcome by resort to an argument that a contract of employment has been formed in fact by offer and acceptance,[16] and conditions of employment prescribed in a statute cannot be changed simply on the basis of contract variation or implied contract, unless the variation or implication falls within the statutory scheme.[17]
An extreme view of the dominance of the legislation over the contract was that the legislation constituted a code, displacing the common law, including contract terms and principles altogether. There was a set of cases which tested this view in the 1980s.[18]
Rogers J in the New South Wales Supreme Court held in the first of the cases that the detailed provisions in the PSA 1922 on suspension of employees — which required ‘cumbersome’ procedures, conferred appeal rights, and limited the circumstances in which salary could be withheld — constituted a code. The context was an industrial campaign in which employees had imposed selective work bans, and the effect of the decision was to deprive the Crown of the option of invoking the contractual right of an employer to withhold pay from an employee who declines to carry out duties in full as instructed (the ‘no work as directed-no pay’ principle).[19] Six years later,[20] Rogers J modified his position. He recognised the distinction between validity of a suspension — a matter governed by the public service legislation — and the employee’s right to pay, which at common law is dependent on having provided the services required under the contract. Rogers J found nothing in the legislation that displaced the operation of the common law principle.[21]
In Australian Telecommunications Commission v Hart (‘Hart’),[22] the Federal Court was asked to find that the public service employer was not empowered to take statute-based disciplinary action against an employee for disobeying an instruction about dress standards because the instruction itself was not statutorily authorised. The argument was as follows: the employer had a statutory power to make by-laws determining the terms and conditions of employment in the agency; the employer had exercised the power, but its by-laws made no provision about standards of dress; there was no room for the term implied by common law in the contract of employment that the employee must obey lawful and reasonable instructions, in this case about dress. A majority in the Court rejected the code argument with minimal comment.
The dismissal at pleasure power emerged in the context of the fundamental reforms of the English civil service that began in 1780 and continued into the second half of the nineteenth century, when public administration was transformed from decentralised, and often corrupt, office-holding, allocated by patronage, to a unified, professionalised career service. The courts looked for guidance to the law governing military servants of the Crown and adopted the principle that, like military service, Crown service was at the pleasure of the Crown.[23] Thus the Crown could dismiss without notice, without giving a reason, and for any reason, and the dismissed public servant had no redress, that is, no right to a hearing, no right of appeal and no entitlement to compensation on any ground including early termination of an appointment for a fixed term.
There has been some uncertainty about the juridical nature of the Crown power. In England, it was usually characterised as a Crown prerogative, so that the exercise of the power was unchallengeable.[24] Australian courts have tended to explain the power as an implied term of the contract.[25]
In Dunn v R, a leading case at the end of the nineteenth century, Lord Herschell set out the rationale for the principle:
It seems to be that it is the public interest which has led to the term which I have mentioned being imported into contracts for employment in the service of the Crown … [S]uch employment being for the good of the public, it is essential for the public good that it should be capable of being determined at the pleasure of the Crown.[26]
Initially the principle was adopted in the Australian colonies, where the colonial administrations were being established in the latter half of the nineteenth century, but then an important departure occurred when, as discussed above in the section ‘Contract’, the colonies opted for comprehensive legislative regulation of public service employment. It was common for these statutes to deal with dismissal, and often in detail. The legal issue thrown up was how the legislation interacted with the dismissal at pleasure principle. The general answer was straightforward: the dismissal power, being a common law power, was subject to modification or displacement by statute. The answer in a specific case was a matter of statutory interpretation: did the statute preserve, or abolish, or abrogate in part, the power to dismiss at pleasure?
Ideally, the statute would deal with the matter expressly. For example, the Public Service Act 1979 (NSW) s 118 provided:
Nothing in this Act shall be construed or held to abrogate or restrict the right or power of the Crown, as it existed immediately before the commencement of this section, to dispense with the services of any person employed in the Public Service.[27]
More commonly the courts were faced with non-express provisions. A statute would deal with some aspect of dismissal, such as grounds or procedure, leaving to implication the effect, if any, on the power to dismiss at pleasure. In the leading case of Gould v Stuart (1896) (‘Gould’), the Privy Council held that the Civil Service Act 1884 (NSW) had supplanted the power altogether.[28] The New South Wales Civil Service Act contained detailed provisions on removal, including removal for misconduct. It specified procedures, including initial suspension, a report to the Minister, and an opportunity for the suspended officer to show cause or make explanation, and a scale of penalties for different degrees of misconduct. The court construed the legislation generously:
These provisions, which are manifestly intended for the protection and benefit of the officer, are inconsistent with importing into the contract of service the term that the Crown may put an end to it at its pleasure. In that case they would be superfluous, useless, and delusive. This is, in their Lordships’ opinion, an exceptional case, in which it has been deemed for the public good that a civil service should be established under certain regulations with some qualification of the members of it, and that some restriction should be imposed on the power of the Crown to dismiss them.[29]
Gould stands out as a high-water mark for judicial willingness to find a legislative override of the dismissal at pleasure principle. Subsequently, courts — including the High Court which considered the matter on several occasions[30] — insisted on clear statutory expression of the intention to abolish or modify the power. It happened that later litigation tended to be concerned with legislation that made less detailed provision on dismissal than the Civil Service Act 1884 (NSW) — the three High Court cases were concerned with state legislation for their police services — so that the case for override was more difficult to establish. For example, it was not sufficient for a statute simply to confer employment powers including dismissal on some person or body, such as the Governor,[31] or to provide an appeal process for employees aggrieved by their dismissal,[32] or to specify a procedure for dismissal.[33] In 2003, in Commissioner of Police for New South Wales v Jarratt (‘Jarratt’), the New South Wales Court of Appeal pointed out that these authorities imposed the onus of proof on the party contending that the dismissal at pleasure principle had been displaced by the statutory scheme.[34]
The decision in Jarratt epitomised the traditional view of the relationship between the dismissal at pleasure principle and legislation. The statutory provision to be construed specified that certain senior police officers ‘may be removed from office at any time’ by the Governor on the recommendation of the Commissioner, with the approval of the Minister.[35] An officer who had been dismissed without notice and without notification of the reason, but in compliance with the stipulated formal procedures, sued for wrongful dismissal on the basis that the termination decision was invalid for failure to provide natural justice to which he was entitled because the legislation had displaced the dismissal at pleasure principle. He argued that the legislation, and in particular the words ‘at any time’, transformed the common law power into a statutory power that attracted the duty to provide natural justice. The Court of Appeal was unpersuaded, however, and accepted the Crown argument that the phrase was ‘far too slender a raft upon which to find a statutory incorporation of the principle’.[36] The Court of Appeal decision was reversed by the High Court in 2005, as discussed under the heading ‘Review of Employment Decisions’ below.
As for the APS, because the federal Public Service Acts (1902 and 1922) were cast in the mould of the Civil Service Act 1884 (NSW) that prevailed in Gould, it has long been assumed that the Crown in right of the Commonwealth had lost the power to dismiss at pleasure. This was confirmed by the Full Court of the Federal Court in Dixon v Commonwealth (1981) (‘Dixon’).[37]
Another dimension to the traditional principle of dismissal at pleasure that was established in England by the end of the nineteenth century was that the Crown’s freedom could not be fettered by contract. Thus a public servant could be removed from office notwithstanding express agreement that the employment was for a definite term.[38] The issue did not arise directly for consideration in Australia until the 1980s.[39] In Scott v Commonwealth, Kennedy J in the Federal Court, acknowledging long-standing criticisms of the rule, concluded that it ‘is now too well established to be questioned in this court’, and thus he rejected a claim of wrongful dismissal by a public servant whose five-year contract had been prematurely terminated.[40] The New South Wales Court of Appeal took a more robust approach to the ability of the Director General of Education to fetter by contract its right to dismiss at pleasure in proceedings brought by Suttling.
Suttling was a teacher employed under the Education Commission Act 1980 (NSW). He successfully applied for a position advertised as a two-year secondment, and his letter of appointment specified a two-year period. During the first year, an administrative reorganisation made Suttling’s position redundant and he was redeployed to another post at a lower salary. Suttling sued the Director-General of Education for a declaration that he was validly appointed for two years and that he was entitled to be paid the salary of that position. The trial judge dismissed Suttling’s action, holding that by virtue of the Crown’s prerogative to dismiss at pleasure, the Director-General’s power to terminate a fixed term contract at any time included the power to change terms of employment short of dismissal.
Suttling successfully appealed to the Court of Appeal, which held that ‘the Crown may contractually abridge its right to dismiss at pleasure’.[41] The Court found that there was no binding Australian authority, and that several factors weighed in favour of overturning the traditional view: there were suggestions in two Privy Council decisions that the prerogative could be restricted by means other than statute; there had been extensive academic criticisms of the principle; the rule often caused great injustice; ‘in an age where a large section of the workforce [was] employed by the Government, there [was] no reason in principle or justice why the contractual rights of Crown (who are in reality government) employees should differ from those of private sector employees’; and the Crown was not bound to enter into fixed term contracts, and if it chose to do so, it should accept the ordinary rules of contract.[42] Consequently, the Crown retained the power to terminate the employment but would be liable in damages if it acted in breach of contract, ‘just as other employers pay damages when they cannot justify the termination of employment’.[43]
Unfortunately, the High Court appeal did not engage with the issue of contractual overriding of the dismissal power.[44] The Court resolved the dispute by reference to the provisions of the Education Commission Act 1980.[45] The Court of Appeal decision has subsequently been followed in National Gallery of Australia v Douglas [46] and Bryant v Defence Housing Authority,[47] both cases involving the federal Public Service Acts.
One of the striking features of federal government employment law which gained prominence in the late 1970s was the role of administrative law — both the traditional exercise of judicial review, and novel mechanisms for overseeing the exercise of government power, including its power as an employer.
Judicial review refers to a body of law in which courts determine ‘the legality of the act or omission of an official or other body or institution within the public domain’.[48] That is, the courts supervise the lawfulness of government decisions at the behest of aggrieved citizens: ‘[t]he overall ground of judicial review is that the repository of public power has breached the limits placed upon the grant of that power’.[49]
The specific grounds for review embrace both express and implied substantive and procedural restraints on decision-making: that the decision-maker breached the rules of natural justice, failed to comply with mandatory procedure, lacked jurisdiction to make the decision, made a decision not authorised by the enactment, failed to take account of a relevant consideration, took account of an irrelevant consideration, exercised the power for an extraneous purpose, exercised a discretion on direction, exercised a discretionary power in accordance with a rule or policy without considering the merits, made an error of law, made the decision induced or affected by fraud, or made the decision in the absence of justifying evidence or material; bad faith, unreasonableness, and uncertainty.[50]
The heartland of judicial review is the exercise by government officials and bodies of powers that are conferred on them by statute.[51] As has been noted, since the second half of the nineteenth century, public service employment in Australia has been subject to regulation by statute. These traditional public service statutes were couched in terms of specifying the powers of the government employer, from initial appointment of public servants to termination of appointment, and prescribing detailed procedures for the various employment decisions such as classification of positions, promotions, transfers, and dismissal, and other forms of termination. In theory, then, judicial review was available to public servants seeking to enforce their statutory rights.
A number of factors, however, militated against public servants resorting to judicial review: the rules of Crown immunity,[52] particular technical rules associated with the specialised remedies (called prerogative writs), the lack of a financial compensatory remedy for the complainant,[53] and the high cost of the specialised jurisdiction. Litigation was rare.[54] And there was an alternative avenue of redress. As noted in the section above under ‘Contract’, the colonial courts characterised the relationship between the Crown and public servants as contractual, and treated the provisions of the public service legislation as terms of the contract. Thus, public servants alleging breach of their statutory rights — in relation to such matters as pay, superannuation, and their procedural rights in relation to promotion and so on — could mount a claim for damages for breach of contract, so long as economic loss was suffered. In a case where the public servant claimed that a termination of employment was invalid for breach of statutory entitlements, the action was for wrongful dismissal.[55] Theoretically, the remedy of specific performance, that is reinstatement, was also available but until recent times the courts have been loath to grant that remedy for employment contracts, and there is the practical obstacle that it is available only if the contract has been kept on foot.
Judicial review became much more accessible to federal public servants, along with other citizens affected by federal government decisions, from 1977, with the enactment of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ‘ADJR Act’). The Act conferred power on the Federal Court[56] to review decisions of an ‘administrative character made … under an enactment’, including subordinate legislation,[57] and thus did not extend to exercises of prerogative or other non-statutory executive power, such as contractual decisions.[58] The ADJR Act’s improvement of the arcane common law jurisdiction was substantial: it simplified and therefore reduced the cost of procedure, codified the grounds of review, and provided simpler, more flexible remedies.
One of the most facilitative features of the ADJR Act was the requirement that a decision-maker provide written reasons for a decision on request, but there were exemptions on grounds of practicality and third-party privacy for certain APS personnel decisions: decisions of a policy nature which did not relate to a particular person, appointment decisions, and promotion and transfer decisions.[59]
The ADJR Act, then, provided federal public servants with a new, accessible avenue for challenging employment decisions made under the PSA 1922, the regulations and determinations made by the Public Service Board. And there was a flurry of litigation. Williams notes that whereas there were 23 reported cases of judicial review of personnel decisions between 1901 and 1979, there were 39 in the five-year period 1980–84 and almost 20 in the period 1985–91.[60] Public servants successfully challenged decisions about promotion,[61] discipline,[62] re-appointment,[63] suspension,[64] and dismissal,[65] and across the range of the grounds of review.
While judicial review is concerned with lawfulness and power, other review mechanisms are concerned with the merits of decisions. There were both internal and external mechanisms available to members of the APS by the late 1970s.
The earliest public service Acts in the colonies provided rights of appeal for certain grievances.[66] By the late 1970s, under the PSA 1922, there were Disciplinary Appeals Committees, Promotion Appeals Committees and Re-appointments Review Committees, comprising an independent chair appointed by the Public Service Board, a nominee of the government department or body, and a nominee of employees, and these bodies and their procedures were of course subject to judicial review. There had also been a Grievance and Appeals Bureau established within the Public Service Board in 1979.[67] Another statute had created the Commonwealth Redeployment and Retirement Appeals Tribunals.[68]
The administrative law innovations of the late 1970s introduced new channels of review of employment decisions in the APS. The new Administrative Appeals Tribunal, a general merits review tribunal which commenced operation in 1976,[69] was granted jurisdiction over the public service superannuation scheme (1976),[70] the public sector workers’ compensation scheme (1981),[71] and freedom of information (1982) (discussed further below).[72] The Office of the Commonwealth Ombudsman, created to investigate and make reports and (unenforceable) recommendations about ‘matter[s] of administration’,[73] and thus to investigate both the merits and legality of decisions, was expressly precluded from dealing with
action taken by any body or person with respect to persons employed in the Australian Public Service … including action taken with respect to the promotion, termination of appointment or discipline of a person so employed or the payment of remuneration to such a person.[74]
This exclusion did not, however, prevent the Ombudsman from investigating complaints about matters arising before employment or after termination of employment.
Public servants could also take advantage of the Freedom of Information Act 1982 (Cth) to gain access to their personnel records from their government employer, subject to some exemptions, including material provided in confidence, and material the disclosure of which could reasonably be expected to have a substantial adverse effect on the management or assessment of personnel by the Commonwealth or by an agency and disclosure was not in the public interest. The Act also conferred a right of correction of personal records.
The role of administrative law provided a stark contrast between public and private employment. Public employers, by virtue of their governmental status, were subject to obligations that were far more onerous than those applying to their private sector counterparts. Through judicial review and merits review, public sector employees could seek enforcement of their rights and entitlements by means unavailable to their private sector counterparts.
It had long been established that the substantive legal relationship between Australian public servants and the Crown was contractual, as in the private sector. It had also long been recognised that the contract was special because of its unilateral character: the terms of the contract were almost wholly supplied by legislation that was effectively under the control of the employer party to the contract,[75] and the contract could be terminated by legislation.[76] However, the PSA 1922 appeared by the late 1970s so comprehensively to prescribe the powers of the government employer and the rights and duties of the employees that courts could even contemplate the view that the legislation constituted a code to the exclusion of common law.[77]
Contract, then, provided the underlying legal framework of the relationship, but the content of the relationship derived largely from legislation and from awards and agreements made under industrial relations legislation. (The latter aspect is covered in Mark Molloy’s Chapter 4 in this volume.) An additional effect of the traditional form of public service legislation was to facilitate the application of administrative law to the government’s employment decisions, giving public servants distinctive rights and remedies. Legislation was thus the dominant component in the architecture of Australian public employment law, with contract operating in the background. Indeed the practice of designating a public servant as an ‘officer’ in the traditional public service statutes tended to obscure the role of contract.[78]
Contract did have a role to play, however, even if generally low-profile. As discussed, it provided more accessible remedies than administrative law for public servants pursuing their statutory rights, at least until the late 1970s, and from the mid-1980s it provided a significant constraint on the Crown’s common law power to dismiss at pleasure (though this had not been a significant issue for the APS). And, as reflected in the cases of Hart and Csomore,[79] it was working in the gaps left by the public service legislation, which could never be truly comprehensive in regulating the employment relationship. The interaction of contract and statute in particular situations was, of course, a matter of statutory interpretation.
The dominance of the statutory regulation of the traditional type forged a certain character of public service employment.[80] In the first place it created ‘the structure of the APS as an entity, as distinct from an aggregation of separate employing bodies which would be the case if the common law was the only basis of employment’.[81] In the second place, it imposed certain characteristics of employment uniformly across that service. These characteristics were encapsulated in the notion of a ‘career service’ that was independent of government control, impartial, and merit-based, and infused with the values of probity and equity.[82] There were three key elements.
First, the service was insulated from political influence, patronage and corruption by the allocation of employment powers to a central Board/Commissioner and to a lesser extent to Department Secretaries, and by the detailed prescription of the criteria and the processes for merit-based decision-making about employment matters.
Secondly, the legislation imposed constraints on management prerogative and provided for fair and equitable treatment of public servants through uniform rules and standardised formalities, including merits review for many employment decisions. Government was thereby a ‘good’ or ‘model’ employer.
Thirdly, the legislation conferred security of tenure on public servants by requiring that termination be only for cause and by due process, and subject to appeal.[83]
The rationale for the ‘career service’ was to facilitate the carrying out of the public service’s ‘constitutional’ function of providing policy advice to the government of the day and implementing the government’s policies and programs. In the Westminster tradition, ministers were individually responsible to the parliament for the actions of their departments, but while both ministers and governments came and went, the function of the public service was to provide continuous, non-partisan, public administration. In Richard Mulgan’s words, ‘[t]he public service always wears the colours of the government of the day’.[84] The employment conditions provided by the public service legislation — a combination of constraints on management and guaranteed entitlements and protection for employees — conferred on public servants conditions that were superior to those of their private sector counterparts, in particular security of tenure. The objective was to protect public servants against the risk of political pressure and to engender a commitment to service in the public interest, that is, service that was professional, expert, apolitical, and stable.[85]
Of course, the theory of this model was not always achieved: occasionally there appeared to be political factors influencing appointment of heads of department,[86] and there were times when senior public servants did not give frank and fearless advice to the government, such as the VIP Affair, when the Prime Minister’s Department helped Prime Minister Harold Holt keep a secret from Parliament and were active participants in a damaging cover-up.[87] Overall, however, there appeared to be consensus that it was appropriate and efficacious for employment arrangements to serve the constitutional function of the public service.