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The Australian Journal of Public Administration, vol. 68, no. 2, pp. 119–136 doi:10.1111/j.1467-8500.2009.00633.x

FROM THE FIELD

Testing APS Ethics: Where’s the Integrity?

Lynelle Briggs Australian Public Service Commissioner1

In recent years there has been a good deal of discussion in Australia about public service integrity. This article seeks to consider the Australian public service’s standards of integrity by analysing the ethical framework under which the public service operates and the par- ticular ethical issues and tensions that this involves; testing and benchmarking the ethical performance of the public service; and providing some suggestions as to the next steps in ethics considerations in the Australian public service.

Key words: public service, ethical performance, accountability

The Westminster Model as a Basis for an Ethical Framework

Most organisations and institutions have val- ues and ethical standards of one sort or an- other. Principles like honesty, integrity, fair- ness, respect, loyalty are shared by public and private organisations alike, but public services are unique in terms of the ethical framework in which they operate and the types of behaviour expected of them. The Australian Public Ser- vice (APS) serves the government of the day, which is elected by the Australian people. There is a division of responsibility, with the govern- ment making the decisions about policies and programs and the public service providing the advice and information that helps the govern- ment to make these decisions. Once the deci- sions are made, the public service implements them.

One of the key working premises of the West- minster system of government is that the public service’s advice to the government is objec- tive and impartial and canvasses a wide range of views and options that may not otherwise be heard. As the prime minister said to public service leaders: ‘[w]e cannot afford a public service culture where all you do is tell the gov- ernment what you think the government wants to hear’ (Rudd 2008).

The public service also manages public money on behalf of the Australian government, that is, money granted to the government by the Parliament elected by the citizens. The APS is accountable for the efficient, effective and ethi- cal management of these funds through its work in developing and implementing government policies and programs.

There is a fundamental difference between the public sector and the private sector. Citizens can choose whether to buy private sector prod- ucts 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 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 – in- tellectual, personnel, material and financial – that they have granted the public sector. Their expectations include that:

• these resources will be managed effectively and that their use will be accounted for;

• they will not be used for partisan polit- ical purposes or for personal advantage; and

• the standards of behaviour of the people paid to manage these resources should be

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beyond reproach and meet or be better than the standards in other sectors.

Given these expectations, there are three key characteristics of an ethical public service un- der the Westminster model:

• there are clear, explicit standards of be- haviour and professionalism that employees understand and must comply with;

• there is a high level of confidence among stakeholders – government, Parliament, clients and the community – that these stan- dards are being complied with. A defining element of this level of confidence is that standards are not only being met but are perceived by stakeholders to be met; and

• the level of confidence is reinforced by internal and external systems of account- ability which evaluate and report on ethical standards and can detect and deal effectively with ethical lapses.

In the case of the APS, these standards of be- haviour and professionalism are expressed in the APS Values and the APS Code of Conduct as set out in the Public Service Act 1999 (the Act).2

I would argue that the characteristics of an ethical Australian public service based around these interrelated elements and our profes- sional values and code of conduct include:

• a commitment to the provision of a high standard of independent and comprehensive advice to the government and to the effi- cient, effective and ethical implementation of government decisions;

• the avoidance by public servants of any statement or action that could lead to per- ceptions that standards of advice or imple- mentation are affected by political or per- sonal factors;

• levels of mutual respect between public servants and the government, and between public servants themselves, that permit a free flow of ideas and information without fear of reprisal and that also accept the ulti- mate responsibilities of ministers and man- agers to make decisions;

• a career structure that is independent from political and other forms of patronage and that is based on merit;

• stakeholder confidence that decisions by public servants are not affected by their per- sonal, financial, political or other interests or those of their relatives or friends;

• leadership that understands and models eth- ical behaviour;

• a high standard of ongoing ethical decision- making at all levels of the public service;

• the highest standards of individual be- haviour, including in relations with col- leagues and clients and in the use of public resources;

• public servants feeling they can identify wrongdoing and report it without fear of reprisal; and

• appropriate independent safeguards that can review and evaluate decision-making.

Ethics in a Values-Based Australian Public Service

The Australian public service has an enduring inheritance from 1901 of a public service based on the principles of merit, apolitical profession- alism and accountability and responsiveness to the elected government.3 For many years, how- ever, most of these tenets were hidden away in detailed regulation rather than openly ex- pressed as principles. The merit principle as it applied to selection for engagement or pro- motion, for example, was expressed primarily through a series of sequential processes. Public servants who followed these processes could be reasonably certain that they had complied with the merit principle, even if they did not quite understand what the merit principle was.

The last quarter of the 20th century saw a whole series of rolling reforms in the Aus- tralian public service with a focus on improving performance, enhancing flexibility and respon- siveness and devolving decision-making. The legislative culmination of these reforms was the Public Service Act 1999, with its emphasis on:

• improved efficiency and effectiveness, with a clear focus on objectives and assessing performance based on results; and

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• the importance of the public service being more responsive to the elected government.

The Act completed the move from a prescrip- tive, rules based ethical framework to one based on an understanding of values and principles. A key element in this framework is the articula- tion in the Act of the APS Values. These values have three key, interrelated functions.

Firstly, they explicitly formulate the princi- ples of good public service and delineate the key distinguishing features of the Australian public service. In effect they ensure a clear set of standards against which government, Parliament and the community can measure the professionalism and integrity of the public service.

Secondly, the values4 allow agencies to be much more innovative and adaptive in the way in which they operate than in a rules-based sys- tem. To return to the merit example, public ser- vants who assess candidates for engagement or promotion now have much greater flexibil- ity to develop and apply processes that meet their agency’s particular skills requirements and timeframes, provided that these are con- sistent with the merit principle.5

Thirdly, the values, together with the code of conduct, have legal force. As the Commission’s guide to the Act notes:

What makes the APS Values and Code important from an ethical point of view is that, because they are in legislation, they have legal as well as moral weight. They are more than aspirational: they are mandatory.

The legally enforceable nature of sanctions for breaches of the APS Values and Code, when combined with the robust Australian system of parliamentary scrutiny through the Senate Estimates process and other committees, such as the Joint Committee on Public and Parlia- mentary Accounts (JCPAA), has provided the Australian public service with a high degree of assurance around its ethical approach. It means that while agencies and individual public ser- vants have a good deal of flexibility in how they apply the values in their operations, they remain accountable for understanding, main- taining and adhering to them.

This culture of accountability, transparency and integrity is also reinforced by the inde- pendent reviewer role of statutory officers, like myself and the Merit Protection Commissioner. Independent reviews are another important pil- lar in the integrity and accountability frame- work because they hold public service decision- makers accountable for the integrity of their decision-making processes, not just for the outcomes.

Inherent Ethical Tension Points

The APS Values regulate the integrity and pro- fessionalism of public servants in their relation- ships with the government and the Parliament, the public, in the workplace and in terms of their personal behaviours. They cover the way the APS operates as an institution, both inter- nally and externally, and they also cover the way in which individual public servants work together.

The APS Values are equally weighted and require appropriate balance. Overemphasis on one value or group of values can have the ef- fect of undermining others. No value should be pursued to the point of direct conflict with another. This balancing act requires ongoing adjustment and fine tuning in parallel with on- going administrative reforms, new government priorities and even changes in government.

Few decisions that officials make are straightforward. Most often this inherent ten- sion between the values arises in the context of being apolitical, impartial and professional in performing day to day functions, but it may also arise in other circumstances.

The different types of work undertaken in the public service – policy, service delivery and corporate/administrative – also have their own inherent tensions. From a policy perspective, there are potential points of tension between complying with a ministerial direction not to discuss or pursue a matter with colleagues, while maintaining adherence to overall govern- ment policy outcomes – a cooperation versus competition continuum. Within a service deliv- ery or operational environment, there are inher- ent tensions between practical experience and local knowledge in implementing a program

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that has been supported and funded from a policy position – a theoretical versus practical conundrum. For corporate and governance ar- eas, there are inherent tensions between com- pliance and adherence to technical rules, re- quirements and standards while not delaying or being considered a hindrance to providing a re- sponsive service to government – the regulation versus responsiveness spectrum.

These tensions often require us to set one value against another, where neither value is wrong. American ethicist Rushworth M Kidder considers the tough decisions to be ‘those that pit one “right” value against another’ (Kidder 2005).

Time critical, emotionally charged situations and the pressure to cut corners are common across most working environments. What dif- ferentiates the public and private sectors is the multidimensional aspects of the stakeholder in- terests and the use of taxpayer funds, which means that there will often be winners and losers who will be deeply affected by what hap- pens. It is in this context that I have sought to test the ethical standing of the Australian public service.

An Ethical Checklist to Assess APS Performance

Any assessment of how the Australian public service measures up ethically needs to bench- mark its performance against a reliable stan- dard. It needs to look at the ethical issues con- fronting the public service today and consider our broader vulnerabilities, with a view to de- ciding where to put future effort.

A few years ago the Organisation for Eco- nomic Cooperation and Development (OECD) developed an ethics checklist6 for the public sector. The checklist asks five basic questions:

1. Are the basic principles and standards clear? What are the ethical values; how are they supported by political leaders; how do pub- lic officials know what is expected of them and what guidance is available to them?

2. How is an ethical culture fostered?

What are the standards of ethical lead- ership; what is the extent to which hu- man resource policies and practices re- flect and support ethical values, the extent to which guidance and support to assist ethical decision-making is available and the way in which values and ethics are communicated?

3. Is there adequate oversight and account- ability? What are the accountability mechanisms; who is responsible for their management and do public sector employees understand their rights and responsibilities in relation to reporting misconduct?

4. Are there procedures and sanctions for dealing with misconduct? What regulation and process is available for dealing with breaches of ethics and are these processes sufficiently indepen- dent and resourced?

5. And finally, is the public well informed? Are there frameworks and mechanisms for effective public scrutiny?

To see how the Australian public service mea- sures up in terms of its ethical position, I have reviewed its performance against each of the elements of the OECD’s checklist.

1. Are the Basic Principles and Standards Clear? Australia has a clear set of public service val- ues and a code of conduct set out in the Public Service Act 1999 against which APS employ- ees can be held accountable. Australia is a party to the United Nations Convention against Cor- ruption which requires parties to regulate the recruitment and conduct of public servants and to promote accountability and transparency in public finance. We have a government that is committed to the concept of an independent and professional public service and has spelt out priorities in specific areas. Agency heads and the senior executive service are required to model and promote the values and ethical conduct. 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.

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APS employees’ knowledge of the values and code of conduct has been tested annually for the last six years and, during that time, we have found growing recognition of the ethical frame- work and significant improvements (of the or- der of 15 percentage points) in compliance with it. My 2008 State of the Service Report found that:

• 91% of employees reported that they were familiar with the APS Values;

• 84% of employees agreed that their or- ganisation actively encourages ethical be- haviour by all its employees;

• 71% of employees agreed that their agency operates with a high level of integrity; and

• only 1 in around every 240 employees were found to have breached the Code of Conduct.

These results are excellent by any objective standard, although it would be interesting in a future study to find out how many staff can accurately describe all, or at least the majority of, the APS Values.

The results are further reinforced by the Transparency International Corruptions Per- ceptions Index7 which measures the perceived levels of corruption in countries. In 2008, Aus- tralia’s combined public services8 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.

There is no doubt, however, that a number of high profile administrative incidents9 have brought the Australian public service’s reputa- tion into question. While these incidents tended to be administrative issues rather than ethical failings, systemic fraud or corruption, cumula- tively they have affected public perceptions of our integrity. On top of this, the government expressed concern that elements of the tradi- tional Westminster approach to the appropriate relationship between the government and the public service had been watered down.10

It is immediately apparent that the OECD’s checklist misses the important fact that it is very difficult to have good governance if you do not have good governments in power as well as good public institutions (Bourgon 2008). It

is therefore crucial that we recognise the influ- ence that governments necessarily have on their public services’ ethical practices, which extend well beyond legal frameworks.

In countries where corruption flourishes, politicians and officials both tend to be corrupt. In countries where governments stretch prac- tices to their own ends, officials tend either to not understand or lose sight of what is right and proper, or find it increasingly difficult to with- stand pressure from governments to do things that might not be correct. In countries where re- lations between governments and officials are ruled by fear and retribution or where senior officials can be sacked at the whim of govern- ments, there is a risk of complicity11 between officials and governments in bending ethical codes if it means protecting officials’ jobs and livelihoods, or it may mean that officials are afraid to call poor practice.

In many countries unethical practice is overt and embedded in their systems. This is clearly not the case in Australia. But it is important that governments and officials alike understand that the lead set by the government of the day can be as important in establishing good, sound government and in promoting ethical practices in the public service, as is the lead shown by senior officials.

The APS Values require public servants to be apolitical and impartial but they also require them to be responsive, to provide frank, hon- est, comprehensive, accurate and timely advice based on a full understanding of all relevant is- sues 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 in Australia 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 considerably overstated, there have been times when Australian public ser- vants have felt themselves under pressure to make decisions or tailor advice in ways that fur- thered 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.

124 Testing APS Ethics June 2009

These issues and concerns are being dealt with. In the wake of the administrative failures mentioned above, lessons and experience have been shared across the public service about officials’ responsibilities, governance arrange- ments and things to look out for that might sig- nal the emergence of problems within agencies through agency health checks.

Importantly, the government has also moved to restore Westminster traditions through a se- ries of initiatives around ministerial briefings; agency head appointments; Secretaries’ incum- bency and remuneration; relations with lobby- ists; advertising and information activities; the training and conduct of ministerial advisers; a new ethics advisory service; and proposed new whistleblower and freedom of informa- tion legislation. The prime minister has empha- sised that public servants should provide clear and comprehensive advice, without fear of retribution.

The 2008 State of the Service Report shows the effect these changes have had on the public service. There have been significant reductions in public servants expressing concern about their ability to balance the responsibilities en- visaged in the values as they manage their re- lationship with the government.12

The principles that the APS Values encom- pass and represent are fundamental to the main- tenance of an ethical APS. Nevertheless there are elements in their current organisation and content that can be confusing. Some of the val- ues, for example, describe the processes needed to support and maintain principles rather than the principles themselves. This confusion adds support to the argument that 15 values are too many, and that they are difficult for employees to remember and apply in their everyday work.

Of the other Australian jurisdictions that have explicit values in legislation, Victoria has six while Tasmania and the ACT have five. These jurisdictions supplement their values with sets of principles or standards that derive from their values but which apply more specifically to aspects of public sector administration and employment.

There is a good case for a review of the APS Values, taking these issues into account. Sim- plification and rationalisation of the values will

ensure that the principles underlying the values are foremost in public servants’ minds, easily recalled and able to guide every day interac- tions, particularly when dilemmas arise.

Another issue that affects the implementa- tion and upholding of the APS Values, as well as impacting upon the issue of clarity in basic ethical principles and standards, is the existence in some agencies of agency-specific ‘values’. These values may reflect an agency’s profes- sional or technical standards, they may set out the sort of specific behaviours and processes that agency employees are expected to use when dealing with each other or with clients, or they may emphasise and draw out specific aspects of the APS Values. Examples of some individ- ual agency values include: ‘respect’; ‘profes- sionalism’; ‘achieves results and demonstrates creativity’; and ‘accountability to our Minis- ters and Parliamentary Secretary, Parliament and the public’.

I have no problem with agencies adopting local standards of behaviour where these help them to do their job and provided, of course, that they do not contradict the APS Values. But, I am in no doubt that the Parliament would want me to ensure the primacy of the APS Values, which are the only legally enforceable values, in setting the ethical standard for the APS as a whole.

Similarly, I am concerned about the growth of agency-specific cultures that give the local values equality with or even superiority over the APS Values. Most agency documentation links agency values back to the APS Values in various ways, but employees in a few agen- cies seem to believe that, for them, the local values are the primary drivers of integrity. If APS employees are, as I suspect, already con- fused by too many APS Values, then a pro- liferation of additional agency values is likely to make matters even worse. This is particu- larly an issue when agency values cover the same areas, in slightly modified forms, as the APS Values, as the values described above that cover respect and accountability appear to be doing. My strong preference is for agencies not to use the term ‘values’ when describing in- ternal standards of behaviour or key business principles.

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It is certainly the case that ethical percep- tions can differ between individuals and agen- cies. The Commission has tended to provide light touch guidance to agencies about how to conduct their business and manage values and code issues – giving agencies flexibility to devise agency specific implementation ap- proaches. Perhaps we should be clearer in some areas about expected standards; ICT misuse be- ing the obvious example.

2. How is an Ethical Culture Fostered? The basic tools for fostering an ethical culture in the APS on the basis of the APS Values and the Code of Conduct exist already. The tools in- clude the Commission’s publication APS Values and Code of Conduct in Practice, which pro- vides a detailed analysis of the requirements of the values and the code and how they link to- gether, and what employees must do to comply with the values and code in a variety of differ- ent situations, including dealing with ministers, dealing with the private sector and dealing with clients. The Contemporary Government Chal- lenges series also provides agencies assistance with agency health and organisational culture.

It is commonly held that ‘rationality’ is the hallmark of good decision-making. While obtaining information, assessing it for bias, identifying options and mitigating risks are important, this can discredit the role of emo- tion. Studies have found that emotions such as empathy and guilt are essential in promot- ing moral behaviours and in inhibiting immoral behaviours such as cheating and aggression (Diensteber, Hillman et al. quoted by Zhong 2005:5). Hence, the APS needs to develop pub- lic service capability and understanding to con- sider not only if a decision is legal and techni- cally correct, but also if it is the right thing to do.

Adhering to the letter of the law is not enough, public servants must also accept re- sponsibility for their actions or inaction, and they need to be supported to make this call con- sistently when they are under economic, profes- sional and social pressure. In all environments, rationalisation and laziness are constant temp- tations, and some of the more common excuses are:

• if it’s legal and permissible, it’s proper . . . • it’s all for a good cause . . . • I’m just fighting fire with fire . . . • it doesn’t hurt anyone . . . • everyone’s doing it . . . • it’s okay if I don’t gain personally . . . • I can still be objective . . . (Josephson

2002).

To support APS staff through these and other situations, the Commission developed the ‘RE- FLECT’ ethical decision-making model as part of the Commission’s Being Professional in the APS – Values Resources for Facilitators pack- age of materials to address situations specific to the APS. REFLECT provides a series of steps that public servants at all levels can use to recognise, evaluate and respond to a situ- ation involving an actual or potential ethical issue.13 Encouraging them to ‘Stop, Think, and then Do’, rather than the other way around, is critical.

The government is taking this even further. The ability of APS staff to understand and ap- ply ethics in their work will be strengthened by the Commission’s new Ethics Advisory Ser- vice. A core element of the new service will be a call and email centre where all APS em- ployees, including agency heads and senior ex- ecutive service (SES) staff, can seek advice to assist them in ethical decision-making. Details of requests for advice will be maintained on a database which will form the basis of an annual report to Parliament on any action that might need to be taken to strengthen awareness of the APS Values and the Code of Conduct – giving us for the first time an early warning system about new ethical issues.

The advisory service will also undertake a number of initiatives to help agencies enhance their ethical awareness and decision-making capabilities, including reviewing and upgrad- ing Commission publications and guidelines on ethical issues; establishing and maintaining an ethics web page; revising Commission learning and development strategies to enhance training in ethics; and establishing and coordinating a network of agency ethics contact officers that will share information and experience on pro- moting and managing ethics in line agencies.

126 Testing APS Ethics June 2009

The APS leadership group has been given a strong role in fostering and supporting an ethical culture. The Public Service Act 1999 specifically requires the Senior Executive Ser- vice to promote the APS Values and compli- ance with the Code of Conduct, including by personal example. Core criteria in the recruit- ment, promotion and development of Senior Executive Service staff encompass integrity, professionalism and probity.

While there is no evidence of a systemic ethical breakdown in the APS, we cannot be complacent. I am not always convinced that the messages and strategies contained in the Com- mission’s support documents are getting across to everyone. There still appear to be pockets of the public service where I continue to be sur- prised by ethical failures of one sort or another, or which are in a state of denial about failures – there may even be a few areas where dysfunc- tional cultures are so entrenched that only staff turnover can resolve them.

On top of this, I am not confident that we have yet achieved an overall level of consistency of approach in compliance with the values and the code of conduct or in responding to allegations of breaches of the code. We can all say that we are ethical and comply with our obligations un- der the Act, but when confronted with difficult ethical situations or challenges, it is not always easy to know what to do and I often find that public servants in these circumstances simply don’t know how to manage themselves.

This is because ethical issues are not always absolute or black and white. They require pub- lic servants to consider many things – such as the facts they know and the many things that they might not know; the rules they are re- quired to operate under; the assumptions they have; what their role and responsibilities might be; their personal values and the APS Values. Resolving ethical issues and making ethical de- cisions requires judgement and discretion to be exercised. Rules and procedures may not al- ways be enough to help public servants. In these circumstances, one of the most important ethics aids is the conversation about ethical behaviour that needs to occur in all workplaces between managers and their staff.

In turn, senior executive officers tell me that they model the values in the everyday example that they set for staff, but this isn’t enough. As public service leaders, the Act also requires them to promote the values in the work place. The most effective form of practical promotion is to have the conversa- tion – to talk with staff about how to han- dle ethical challenges in the workplace and to run through examples of what can hap- pen that they need to know about. This not only increases their knowledge of how to ap- ply the values and the code in the work place, but also opens up opportunities for reflection and enables employees to more confidently ask for help when ethical issues are testing them. It also gives managers a chance to deal with false perceptions about ethical failings, which can be amplified and become folklore if not addressed.

It is especially important that centrally coordinated programs and advice are sup- ported by agency level initiatives that address the specific ethical challenges in their par- ticular operational environment; right across Australia. Often, this is the best way to en- sure that employees hear what they need to know.

A good example of an agency-led initiative to encourage ethical decision-making is the Department of Immigration and Citizenship’s Immigration Dilemmas: Ethics, APS Values and Leadership (IDEAL) program that com- menced in 2006. IDEAL is a series of scenarios, based on the Commission’s Being Professional in the APS package, involving ethical dilem- mas across a range of issues in the Depart- ment’s central, regional and overseas locations. In working through these scenarios, leaders and their teams can gain a better apprecia- tion of what the values and the code actu- ally mean and how they apply to day-to-day work in the department. An independent eval- uation of IDEAL indicates that it is having a positive effect on staff understanding of ethi- cal issues. Many other agencies could pick up on this initiative and use it to start the ethi- cal conversations that are needed in their work places.

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3. Is there Adequate Oversight and Account- ability? Agency heads are responsible for managing the day to day application of the ethics frame- work, with the Commission having overall APS oversight and accountability responsibility for agency heads.

The State of the Service Report tracks ethics standards annually. Figures from the report in- dicate a high level of employee awareness of their rights and responsibilities in relation to reporting misconduct. Seventy-nine percent of staff surveyed indicated that they had been made aware by their current agency that they can report a suspected breach of the code of conduct to an authorised person in their agency, and 78% were aware of the protections against victimisation for staff who report suspected breaches.

I am nonetheless concerned that there may be a tendency to tolerate or turn a blind eye to suspected breaches, or for our employees to fear reprisal (or other forms of disapproval or personal discomfort) if they report an issue in the work place.

The way in which suspected breaches are detected tells us a great deal. In 2007–08, 23% were detected by agency compliance/ monitoring systems, 23% were the result of conduct detected by managers and 38% as a result of conduct detected by colleagues. Of course, the highest number of alleged breaches involved misuse of information and commu- nication technology (ICT), so the result is not all that surprising. Still, it would appear that in some of the ICT cases, supervisors were aware of and were even involved in the misconduct. An ethics education drive therefore needs to in- clude a core element on the responsibilities of supervisors and reinforcement with appropriate sanctions when detected.

There is some reluctance by APS employ- ees to report breaches of the code of conduct. The 2006–07 State of the Service Report, which specifically collected data on this issue, found that only 60% of employees who witnessed what they believed to be a serious breach of the code actually reported it. The reasons given for not reporting fell into two basic categories:

• fear of reprisal and/or damage to career prospects; and

• the person who committed the alleged breach was already under investigation or the misconduct had been reported by someone else.

APS leaders must deal directly with the fear issue by creating a workplace climate where employees feel comfortable to raise issues and report problems such as misconduct, and where they believe inquiries will be handled sensi- tively and thoughtfully.

It is equally important that all APS employ- ees understand that reporting what they ob- serve to be breaches of the code is an obli- gation, not just an option. It is also important that agencies put further effort into promot- ing employees’ responsibility to report mis- conduct and into creating a culture where em- ployees who report misconduct feel protected. Likewise, we need to ensure that the frivolous or the sometimes malicious complaints we re- ceive are dealt with, and reported, appropri- ately. Of equal concern are the discrepancies between the relatively small number of reports of misconduct and the survey reports of percep- tions of widespread bullying and harassment14

and the apparent failure of one in eight senior staff to uphold the values.15 Is fear of report- ing breaches much more widespread than the statistics indicate? Is it a matter of not wanting to rock the collegiate boat or is it the Australian cultural dislike about ‘the dobber’? On the other hand, do the levels of abuse of the values re- ported in surveys actually involve misconduct, or is it simply the sort of generic grumbling that goes on in some organisations?

I also wonder whether we have got the bal- ance right between correcting (as it happens) what might be an innocent mistake or over- sight, before rushing off to a code of conduct breach inquiry. It may be that the spectre of imposing a code breach on a colleague is seen by many of our employees as too severe a label (with potentially damning reputational conse- quences for colleagues), when all that is really necessary is quick correction. Over the next year, I have decided to look at what we can do

128 Testing APS Ethics June 2009

to shed more light on the psychology of observ- ing and reporting misconduct.

4. Are There Procedures and Sanctions for Dealing with Misconduct? The values and code of conduct are designed primarily to focus on the integrity of the pub- lic service, rather than to assign blame. Every APS agency is required to have in place sys- tems to deal with allegations of breaches of the code of conduct, with sanctions that can range from reprimand to termination. Except in cases where the sanction imposed is termination of employment (where the avenue for a review is the Australian Industrial Relations Commis- sion, under the unfair dismissal provisions of the Workplace Relations Act 1996), APS em- ployees16 may seek a review of a misconduct determination or sanction by the Merit Protec- tion Commissioner.

In 2007–08, the Merit Protection Commis- sioner received 40 applications for a review, around 4% of those finalised agency investiga- tions were where employees were found to have breached the code. Of the 24 reviews completed in 2007–08, 15 were confirmed, seven varied and two set aside. The low levels of requests for review, and the low number of determina- tions that are actually changed as a result of the review process, seem to indicate, prima facie, that the system works.

What we don’t know, however, is whether APS employees actually regard agency pro- cesses for handling breaches and allocating sanctions as being objective, fair or consistent. This is an area worth further examination and the Merit Protection Commissioner is consider- ing ways to obtain feedback and provide more practical assistance and guidance to agencies on best practice approaches.

Another issue is consistency of sanctions for misconduct across the APS. The Public Service Act 1999 gives agency heads the power to im- pose certain sanctions – termination of employ- ment, reduction in classification, reassignment of duties, reduction in salary, a fine, or a rep- rimand. Within this legislative framework, it is up to agencies to determine and apply sanctions in individual cases, and I have observed con- siderable variation in sanctions from agency to

agency. These variations appear to reflect the nature of the work of different organisations; variations in approach as to how suspected mis- conduct is dealt with (through formal or infor- mal investigation); and some agencies taking a stronger line in relation to sanctions, particu- larly where the proven breach is fundamental to core business requirements.

I understand and accept that agencies with differing responsibilities need some flexibil- ity in the way that they apply sanctions, and recognise that sanctions can be reviewed and amended by the Merit Protection Commis- sioner. However it may not be consistent with the value that requires the APS to provide a fair workplace to have too great a discrepancy between sanctions for the same offence, par- ticularly within agencies. Agencies may need better guidance on the application of sanctions and I will be looking at how this could be developed and managed through the Commis- sion. The Merit Protection Commissioner has already had discussions with agencies on how to address the practical issues of privacy and security and sought external legal input on the core factors critical to sanction determination. A gap in the sanctions framework, which I am moving to correct, is that code of conduct in- vestigations cease when those against whom an allegation is made move agencies or leave the public service.

5. Is the Public Well Informed? Public scrutiny of the ethical health of the APS is provided through the annual agency report- ing system and through the Commission’s State of the Service Report. The Australian National Audit Office, the Commonwealth Ombuds- man and the Privacy Commissioner also report on probity and behaviour in the APS. Occasionally, ethical standards and ethical decision-making come under scrutiny through Parliamentary Committee inquiries and hearings.

If we were to improve reporting on ethical health at both the individual agency and the APS-wide level, some form of checklist along the lines of the OECD checklist could be used to enhance the clarity and consistency of ethics analysis and reporting in both agency annual

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reports and the State of the Service Report. I will look into the feasibility of this.

I am mindful that the average citizen gets very little information about the way in which the APS as a service performs and behaves. They are obliged to take it on trust until there is a scandal, and then they, not surprisingly, tend to think that the scandal is typical of the way in which the APS operates. How then do we establish and maintain an APS that is more tran- sparent and accountable on an ongoing basis?

Public interest disclosure arrangements are important because they give citizens a measure of assurance that people within the system are encouraged to report wrongdoing or misman- agement and are protected when they do so. There has been criticism of the adequacy of the national public interest disclosure regime in that it only permits disclosures by APS em- ployees about other APS employees, only cov- ers breaches of the APS Code of Conduct and doesn’t spell out in any detail the protection that whistleblowers might actually expect or the ac- tion that might taken against any person who victimises them.

The government is committed to expanding and upgrading the Commonwealth’s public in- terest disclosure regime and, at its request, the House of Representatives Standing Commit- tee on Legal and Constitutional Affairs under- took an inquiry into whistleblowing protections within the Australian government public sec- tor. The report of this inquiry recommends new public interest disclosure legislation that would considerably broaden the grounds on which a public servant could make a public interest disclosure, strengthen the protections against reprisals and extend coverage to the broader Commonwealth public sector. The government is also moving to reform the current freedom of information laws as a key part of its commit- ment to more open and more transparent gov- ernment. As part of these new arrangements we can expect to see more material being re- leased without recourse to freedom of infor- mation requests, and more open disclosure of government decision-making processes.

There have been calls for the establishment of a national independent anti-corruption com- mission to monitor the ethical standards of

members of parliament and public servants. I do not believe that the APS needs a full blown state-style anti-corruption commission – this would be overkill in my view. There is no evidence of systemic corruption in the APS and, apart from the particular issues which I have identified and which we are moving to address, the APS measures up pretty well against the OECD ethical checklist and the Transparency International Corruptions Perceptions Index. I am also mindful of the nature of the work in the APS, which tends to focus on national pol- icy development and program delivery issues where employees may be less likely than their state or local government sector counterparts to be subject to local business, community and family pressures. In expressing a similar view, the founding commissioner of the New South Wales Independent Commission against Cor- ruption, Mr Ian Temby QC, said ‘[t]here tend to be lower levels of corruption as the level of government gets higher . . . It’s essentially a state and local government problem’ (Salusin- ski 2009).

An emerging ethical accountability issue, however, is the tension between the way in which the APS reports on its effectiveness and probity and the expectations of the government and other stakeholders about how it should op- erate. The government has emphasised the im- portance of joined-up cross agency and whole of government approaches to public adminis- tration, and of broader lateral cooperation with other sectors of the community. The govern- ment also wants to give average Australians the opportunity for wider participation in the process of government through its policies of inclusion. Australia’s accountability reporting systems still tend to focus on individual agen- cies reporting vertically to Parliament. As we go forward, the APS will need to look at differ- ent ways of reporting this new focus on cross agency and whole of government accountabil- ity and on lateral reporting to outside stakehold- ers and on its engagement with citizens.

Where to Now?

In assessing the APS against the OECD check- list, I have noted that we are in pretty good

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ethical shape overall, and that recent changes will go some way toward reducing perceptions of politicisation. There are still some issues and challenges that we need to be prepared for – such as the psychology of employees reporting of alleged breaches, rethinking the parameters for private use of communication resources and fostering consistency in determining sanctions for misconduct – and which will require further thinking.

There are also new challenges that we need to manage. The APS is in an environment where the pace of change has accelerated exponen- tially and with it a range of new ethical ques- tions not previously considered – such as inter- net based social networking that have blurred the lines between professional and private ac- tivities, and medical advances that enable the growing of human ‘spare parts’.

A key next step in identifying what we need to do to enhance and maintain ethical health in the APS is to identify any other emerging or future ethical challenges. There are some other underlying issues that may also need further consideration.

Encouraging Ethical Decision-Making

It is important that all public servants are sup- ported in understanding and practising consis- tent and sound decision-making processes to deal with the ongoing tensions between the val- ues. All decisions, both large and small benefit from the questioning of assumptions and the assessment of how a particular scenario or de- cision is similar or different to previous situ- ations – past solutions may not be applicable if there has been a fundamental shift in a key aspect, such as a change in government pol- icy, expectations of new ministers, or public expectations.

This time to pause and reflect is vitally im- portant and requires self awareness and re- silience at all levels but particularly in APS leaders as role models. The insights required in- clude an ability to look past short term require- ments and consider longer term consequences and impacts, and to do this from a variety of per- spectives. This ability is developed over time with exposure to a wide variety of situations

and environments, with experience, and with a supportive culture within agencies to do so.

Let’s consider some of the dilemmas that a public servant could be reasonably expected to face at some point in their career:17

• the extension of social services and sup- port without discriminating on the basis of age, gender, disability or cultural back- ground, and the provision of additional or specialised support to those indigenous people who may have been disadvantaged in the past;

• the imposition of a carbon tax and other disincentives on industries that contribute to global warming, and supporting and maintaining employment of people in those industries during periods of eco- nomic downturn;

• championing the principle of creative and aesthetic freedom through a photographic exhibition, and upholding the community’s desire to avoid displaying pornographic or racially offensive works; and

• disciplining a good employee who makes a poor decision, and providing compas- sion and the opportunity to learn from the mistake.

In these scenarios both are right; there are no wrong answers, just a judgement about where the decision is made along the continuum in a particular circumstance with the information available. The dilemmas bring to the fore the inherent ethical points of tension for a public servant dealing with public policy considera- tions, a variety of stakeholders and conflicting evidence at any point in time. These ethical dilemmas do not fit neatly into the usual fraud and corruption scenarios, but with taxpayer dol- lars attached to the decisions, they have an important effect on how the public service is perceived.

Kidder calls these types of dilemmas right- versus-right choices and the fraud and corrup- tion type issues as right-versus-wrong choices. He captures the differences by concluding that the right-versus-wrong choices are essen- tially ‘moral temptations’, and the right-versus- right choices are ‘ethical dilemmas’ (Kidder

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2005:17). Both, however, are public service in- tegrity issues.

The Australian public service need not only to be vigilant about maintaining its ethical stan- dards, but also be diligent about encouraging public servants to think more widely about the nature of ethical decision-making in a public policy context. The APS has tended to be re- active – dealing with problems once they have been exposed publicly. It would be far more preferable for us to be able to detect, identify, codify and respond to emerging ethical chal- lenges quickly before they lead to serious prob- lems. The increasingly fluid environment in which the public service operates today makes this essential, and we now have the Ethics Ad- visory Service to help us do so.

Perceptions versus Reality

Increasingly, the public service tends to be judged publicly by how its ethical performance is perceived, rather than by the facts of indi- vidual cases. It is clear that perceived ethical failings can be as undermining of the APS’s in- tegrity standards as actual failings in behaviour.

An example is the workplace relations adver- tisements in which Barbara Bennett appeared in 2007. In reviewing the case, I found that Ms Bennett did not breach the APS Code of Conduct. Yet, I subsequently revised my Com- missioner’s guidelines to all but prohibit such appearances due to the widespread perception that any appearance of a public servant in any government advertisement would be seen as a (partisan) endorsement of government policies and thus inconsistent with the values. In this climate where perceptions can rapidly become reality, it is important that public service lead- ers deal with the issues quickly and correct the facts publicly.

Similarly, where public servants believe that another public servant is acting inconsistently with the values and the code of conduct, they should approach a senior officer with their con- cerns, and ask that the situation be reviewed. They may then find out that the matter has been reviewed already or that there were other considerations that exonerate the individual, or

that their perceptions of misconduct were in fact correct. Importantly, they will have sur- faced the misconduct issue and dealt with it.

Some public servants’ behaviour has gener- ated such outrage that other public servants and the media have bayed for their blood. We cannot afford perceptions that we have closed ranks to protect our own in these circumstances or that our reviews are seen as a whitewash. It is there- fore important that public servants get fired up about misconduct, that instances are reported and investigated, and that they are corrected where wrongdoing has occurred. It may well be that such concerns would be further allayed if the Commissioner had an ‘own motion’ code of conduct review function to be used in excep- tional circumstances.

It is also important, of course, that public servants are not discouraged from reporting misconduct because they perceive either that their colleagues may be demonised for their misdemeanours or that they will be demonised personally for registering a concern. This is all about both judgement and balance between the integrity intentions of the Act and the pun- ishment fitting the crime, and the character of those on the ground administering the Act. We have some way to go before we can say that we have nailed this one.

Adapting to New Ways of Working and New Work Imperatives

There are likely to be changes in expecta- tions about the way in which the APS works; changes which have been flagged by govern- ments and commentators around the world and which were drawn out in particular by the prime minister in his 30 April speech (Rudd 2008). Mr Rudd’s expectations for the APS include:

• enhancing professional excellence through employing people with a wider diversity of work experience, including the private, the voluntary and community sectors and in other public services;

• using evidence-based policy, including sharing our experiences across states and territories and keeping track of what is hap- pening overseas;

132 Testing APS Ethics June 2009

• building long term strategic policy capa- bilities through better connections across governments;

• making government inclusive and innova- tive through engaging citizens as well as experts, think tanks, business and com- munity groups, in policy development and program delivery; and

• no particular ideological preference for private over public or vice versa in ser- vice delivery – these decisions should be made on the basis of efficiency and effectiveness.

If the APS is to function effectively in an increasingly fluid and globalised environ- ment where conditions and circumstances can change overnight, then it 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 pro- grams. It must be able to work with and draw 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 three crucial, interrelated implications for public sector ethics.

Firstly, I have concerns even now about the ability of all APS employees to make the right ethical decisions in all situations. This will be- come even more of a challenge when we have to work in partnership with people and organ- isations with different cultures, different ways of working and, in some cases, different ethical outlooks and priorities.

On top of this, we need to deal with the re- ality that the APS is no longer a closed organ- isation. In 2007–08, around 16,000 staff were recruited from outside the APS. Over half of these recruits (56.6%) were aged 30 and over. A third were recruited to senior and middle management positions (APS 5 and above). In other words, as a result of employment policies, labour market pressures and other changes over the last decade, people with a variety of previ- ous experiences in different employment cul- tures are moving into the APS and some of them are occupying leadership positions. We can no longer rely solely on long term workplace so-

cialisation to ensure that staff understand and apply public service ethical standards, and we will now need some stronger form of ethics enculturalisation.

Accordingly, the government has initiated a new ethics educational drive to ensure that an ethical culture is fully embedded in the APS in this emerging environment. This involves:

• highlighting to the SES and agency heads the importance of modelling and promo- tion of the values and code of conduct in the work place, in particular, having reg- ular conversations with their employees about ethical issues involving challenging situations;

• a mandatory ethics component in all Com- mission courses involving both ethical awareness and ethical decision-making, especially for the SES and executive level staff;

• further promotion and if necessary upgrad- ing of APS and SES induction training in ethics;

• encouraging and assisting agencies to de- velop or enhance selection criteria and other assessment tools for recruitment and promotion that test ethical awareness;

• ethics hypotheticals to engage employ- ees ethical dilemmas which face us all;

• encouraging and assisting agencies to bet- ter integrate ethics into their management systems;

• further advice, guidance and training for all staff on ethical decision-making through the new ethics advisory service;

• more analysis and debate, at both APS- wide and agency levels, of reports and in- vestigations that are critical of APS perfor- mance and integrity, to analyse the ethical decisions that were made and to suggest alternatives; and

• further advice, guidance and training on the differences between harassment and bullying and the legitimate exercise of management responsibility.

In developing and implementing these sorts of initiatives, we are seeking to ensure that they

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recognise the changing world in which we op- erate and actually facilitate confident and ac- curate grass roots ethical decision-making.

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 am not suggesting that the core public sector values under the Westminster sys- tem – 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.

A good place to begin to explore options for closer ethical cooperation with other sectors is the APS’s relationships with Australian state and territory jurisdictions. In first place, these jurisdictions, though they have different func- tions and responsibilities, have the same core ethical traditions as the Australian government. We all subscribe to the Westminster system of government. We share principles that empha- sise independence and professionalism in the provision of advice to government; that man- date merit, fairness and the prevention of un- lawful discrimination in public sector employ- ment; that focus on efficiency, integrity and client service in administration; and that require standards of personal behaviour that focus on courtesy, honesty, diligence and the manage- ment of conflicts of interests. In other words, there are already large areas of ethical common ground among Australian jurisdictions.

I believe that there is merit in developing a common set of core ethical standards and prin- ciples 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 jurisdictions work to- gether to solve common problems, as they in- creasingly will, there will be core ethical stan- dards that we can all subscribe to and work within, and I have taken up the proposal for- mally with my state and territory colleagues.

At this stage, however, the government does not support a uniform national ethical framework and code of conduct.

Thirdly, the continuing emergence of new technologies and more diverse and informal means of communicating also raises challeng- ing ethical issues. It means that the APS and other public sectors are increasingly going to have to use online communication, in particu- lar, weblogs, or ‘blogs’, both to canvass com- munity and stakeholder opinion in policy devel- opment and to provide information on policy and program implementation. The June 2008 Australian Government Information Manage- ment Office (AGIMO) report Consulting with Government – Online set out the results of a public consultation process that indicates overwhelming support for a government con- sultation blog and discussion forum and, in response to this, the trial of a single entry gov- ernment online system will be undertaken this year.

New communication technology also means that individual public servants, both at work and outside it, are going to have access to, and possibly be tempted by, a range of dif- ferent 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 sec- tor ethical issues around communication – in- formation versus advocacy, private versus pub- lic comment, misuse of resources to circulate partisan or offensive material – will become exponentially more challenging and costly to manage.

We will need new detection methods and up- dated guidelines, for example, on public com- ment and ICT use to cover blogs. One of the issues we will need to cover is the ethical re- sponsibilities of a blog moderator whose role is to monitor a government site that is collecting public views and comment to help policy devel- opment. 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

134 Testing APS Ethics June 2009

of the APS Value that emphasises apolitical and impartial advice.

I am also conscious that there may need to be a shift in the way in which we perceive our rights and responsibilities in this information age. Our problems with the misuse of ICT – which in recent years have ranged from ‘brows- ing’ other people’s personal records to the accessing storage and distribution of offensive and obscene material – appear to be, at least in part, a product of the longstanding practice that public servants are entitled to modest use of public resources for their own private pur- poses. Nonetheless, I remain very concerned that misuse of ICT occurs at all – either the fundamental message appears not to be getting through, or there is some sort of dissonance be- tween people knowing how to behave but not being willing to do so. In future we will need to think about setting clearer and more consistent boundaries about private use and inappropri- ate use of the internet and of mobile devices, and this is likely to involve the commitment of resources for training and other awareness raising.

Leadership

Research by the NSW Independent Commis- sion against Corruption found that strong, clearly stated values guide people through choices, so that making ethical decisions be- comes the path of least resistance. However, I would argue that we cannot simply rely on publications, guidelines and formal training to embed ethics in the workplace. Improving eth- ical decision-making in the workplace turns crucially on the ongoing role of public sector leadership.

The Act requires our leaders – the Senior Executive Service – to promote the APS Val- ues and the APS Code of Conduct, includ- ing by personal example. I want to encour- age the SES to build ethical knowledge and decision-making confidence among staff by be- ing more proactive in promoting ethics in the workplace. They need to talk with public ser- vants about how to handle ethical challenges in the workplace and to run through examples of what can happen that their staff need to know

about in order to make better decisions. They need to be open to alternative views and con- trary strategies and prepared to discuss different approaches.

I will be looking at what the Commission can do, in terms of learning programs, guidelines and advice, to encourage and support these sorts of ethical conversations in the workplace.

Integrity systems are a form of social cap- ital – they are there to make government work better. Studies have shown that organisa- tional culture is one of the most important fac- tors influencing organisational behaviour, espe- cially with regard to integrity (Strickland and Vaughan 2008). It is therefore important that APS leaders drive cultures consistent with the APS Values and the code.

Interestingly, there is evidence that ethical leadership helps to attract and retain staff. The US based Corporate Leadership Council re- cently undertook a worldwide survey of busi- ness leaders to identify the attributes of what they call ‘talent champions’, those who can at- tract and retain the right people. The survey indicated that knowledge of ethics was an im- portant factor in attracting internal talent.18

Other Observations

Our employees’ confidence in the ethical framework often turns on what they observe to be happening locally. There are some rel- evant findings from the 2007–08 State of the Service Report that raise challenges for ethical health.

Merit as the basis for employment decisions is one of the APS Values, yet employee faith in the application of merit is relatively low and ap- pears to be in decline, with only 50% of employ- ees agreeing that their agency routinely applied merit in engagement and promotion decisions, compared with 59% in 2006–07. Even allow- ing for the fact that perceptions vary according to whether respondents were successful in ob- taining a job, the results are still unsatisfactory.

Merit is one of the basic ethical pillars of the APS. It is central to the concept of a ser- vice that is apolitical, professional, fair, diverse, non-discriminatory and career based. It worries me that even though the Commission has put

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a great deal of effort recently into producing policies and good practice guidelines and tools to help agencies to more efficiently and effec- tively apply merit, there is still a high level of disillusionment with agency practices.

The 2007–08 report also brings out some is- sues in relation to leadership. Employees who believed that they had experienced harassment or bullying in the last 12 months were asked who was responsible. Forty two percent named their supervisor and 37% identified someone more senior other than their supervisor. In other words, nearly four out of five cases of perceived bullying and harassment involved managers. Even if we keep in mind that giving critical performance feedback or refusing to accede to unreasonable requests may be misinterpreted by some staff as bullying and harassment, it is still a worrying figure. Taken with some of the other trends and data I have noted about per- ceptions of leadership, there is a concern that the message is not getting through to some APS managers.

Conclusion

Ethics standards matter. The ethical tone of a public service agency impacts on its effi- ciency and effectiveness, decision-making pro- cesses, employee commitment and job satisfac- tion, employee stress and employee turnover. Making ethical practices a priority is not just about functioning with integrity or being cred- ible, it is also about optimising the efficient functioning of APS agencies. Agencies that perform well are generally characterised by high ethical standards both externally in their dealings with stakeholders and internally in re- lationships between agency employees (ICAC 2000). All APS agencies should therefore be aiming for high ethical standards, and I think they are.

Equally, the APS should not be complacent about its ethical standards. As I hope this ar- ticle makes clear, while we can – and must – put in place systems, processes and training to ensure that leaders and employees know and understand their ethical obligations, we can- not always trust them to make the right ethical decisions in all circumstances. This is particu-

larly important in light of the range of emerging vulnerabilities resulting from changing labour markets (including the effects of increased economic volatility), from new technologies, from the need to think and cooperate outside our own ‘boxes’ to meet national and global challenges, and from the characteristics of individual governments and of the APS lead- ership cadre.

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

So, in coming back to my original question about the APS’s integrity, it is clear that the APS shapes up pretty well, but if it is to be a truly outstanding public service, ethics and integrity should be a part of everything we do and everything we say, and they should guide all our decisions. We are not far off that – it’s a shame that the last inch can sometimes seem like a mile!

Endnotes

1. I would like to acknowledge the generous support, assistance and advice given to me by Annwyn Godwin (the Merit Protection Com- missioner), Chris Oates and Karen Wilson in the preparation of this article. Parts of this article also appear in The Merit Protection Commissioner and Ethical Decision-Making, a forthcoming Australian Public Service Com- mission publication.

2. The APS Values are in subsection 10(1) of the Act, and are complemented by a Code of Conduct in subsection 12(11) of the Public Ser- vice Act 1999.

3. The Public Service Act 1922 applied until 1999, and had a specific section (s33) dedicated to the application of the merit principle and prohibition of patronage.

4. Supported by policy advice and good prac- tice guidance from the Australian Public Ser- vice Commission.

136 Testing APS Ethics June 2009

5. The position must be openly available to all eligible members of the public, and a fair, ac- curate and comparative assessment of the rela- tionship of each candidate’s work related qual- ity with the qualities genuinely required to do the job should be used.

6. The checklist is not intended as a defini- tive statement of public sector ethics, but rather ‘ . . . to serve as a point of reference and guidance to help member countries in review- ing and developing their ethics regimes for the public sector according to their particular cir- cumstances.’ Foreword, Ethics Checklist Draft, OECD Symposium Ethics in the Public Ser- vice, Paris, 3–4 November 1997.

7. The Transparency International Corruption Perceptions Index 2008.

8. Transparency International’s data for Aus- tralia relates not only to the APS, but also to state, territory and local government public services.

9. The mishandling of the Cornelia Rau, Vi- vian Solon and other immigration cases; dis- tribution of grants to regional areas; the mis- use of ICT for browsing confidential per- sonal records and accessing and distribut- ing pornography; and the outbreak of equine influenza.

10. Special Minister of State and Cabinet Sec- retary, Senator John Faulkner in a speech to the Community and Public Sector Union on 28 March 2008.

11. The term ‘complicity’ is used broadly here to denote pressured compliance or acquies- cence, which tends to be hidden and forced.

12. In 2005, some 33% of the APS found it challenging managing the relationship with ministers and their offices, compared with only 20% in 2008.

13. More information on the REFLECT model can be found on the Commission’s website at: http://www.apsc.gov.au/values/kit.htm.

14. The 2007–08 State of the Service Report revealed that 19% of APS employees had been

the subject of bullying or harassment in the work place, but only 118 employees nation- wide were investigated for misconduct involv- ing bullying and harassment that year. The dif- ference is startling, even allowing for the fact that some cases of bullying and harassment may be resolved informally and that some concerns may relate to the same people.

15. According to 2006–07 State of the Service Report data, 12% of employees did not agree that senior managers acted in accordance with the Values.

16. Except for members of the Senior Exec- utive Service, who do not have such rights to Merit Protection Commissioner review.

17. Acknowledgement to Rushworth M Kid- der (2005:17) for the concept of competing is- sues along a continuum of choices.

18. Corporate Leadership Council Talent Management Effectiveness Survey 2008.

References

Bourgon, J. 2008. The Future of the Public Service: A Search for a New Balance. Paper presented at the Institute of Public Administration Australia Conference, Sydney.

ICAC [Independent Commission Against Corrup- tion]. 2000. What is an Ethical Culture? Key Is- sues to Consider in Building an Ethical Organi- sation – Summary Report. NSW: ICAC.

Josephson, M. 2002. Making Ethical Decisions: The Six Pillars of Character. Josephson Institute of Ethics.

Kidder, R.M. 2005. How Good People Make Tough Choices: Resolving the Dilemmas of Ethical Liv- ing. New York: Harper Collins Publishers.

Rudd, K. 2008. Parliament House Address to Aus- tralian Government Agency Heads and the Senior Executive Service. 30 April.

Salusinski, I. 2009. ‘Watchdog’s Tale.’ The Aus- tralian 12 March.

Strickland, R.A. and S.K. Vaughan. 2008. ‘The Hierarchy of Ethical Values in Non-Profit Or- ganisations: A Framework for an Ethical, Self- Actualised Organisational Structure.’ Public In- tegrity 10(3):233–252.

Zhong, C.-B. 2005. The Ethical Dangers of Rational Decision Making. Finalist for the Excellence in Ethics Dissertation Competition.