‘Rational Avoidance of Accountability by Queensland Governments’

Mark Adam Lauchs LL.B., BA (Hons.)

School of Justice Law Faculty QUT

PhD Thesis 2006

Keywords: Queensland History, Public Sector Ethics, Accountability, Public Service, Anthony Downs, Public Choice Theory, Public Service Reform, Freedom of Information, Whistleblowers, Integrity Commissioner, Criminal Justice Commission, Electoral and Administrative Review Commission, Public Service Commissioner.

Abstract: Anthony Downs public choice theory proposes that every rational person would try to meet their own desires in preference to those of others, and that such rational persons would attempt to obtain these desires in the most efficient manner possible. This thesis submits that the application of this theory would mean that public servants and politicians would perform acts of corruption and maladministration in order to efficiently meet their desires. As such action is unavoidable, political parties must appear to meet the public demand for accountability systems, but must not make these systems viable lest they expose the corruption and maladministration that would threaten the government’s chance or re-election. The thesis demonstrates this hypothesis through a study of the history of the public sector in Queensland. It shows that all governments have displayed a commitment for accountability whilst simultaneously ensuring the systems would not be able to interfere with government control or expose its flaws.

Table of Contents: Chapter 1 Introduction 1 1.1 Background: the Beneficiary-Servant Relationship 3 1.2 Public Choice Theory 4 1.3 Rational Corruption 8 1.4 Managing Perception 10 1.5 Methodology 11 1.6 Sources 13 1.7 Chapters 15

Chapter 2 British Public Sector Reform 18 2.1 Feudalism 20 2.1.1 The Feudal System 20 2.1.2 Feudalism as Service to the King 22 2.1.3 The King’s Household Government – the Power of Patronage 25 2.1.4 Conclusion 28 2.2 Formal Government 28 2.2.1 Rise of formal Government 28 2.2.2 Constitutional Monarchy 30 2.2.3 Civil Service Reform 33 2.2.4 Trevelyan Reforms 36 2.2.5 Summary 39 2.3 Conclusion 39

Chapter 3 Colonial Era in Queensland 41 3.1 The Queensland Colony 42 3.1.1 Nature of Merit 44 3.1.2 Voters Values 45 3.1.3 Employment and Promotion 46 3.1.4 Subversion 47 3.1.5 Conclusion 51 3.2 The Civil Service Act of 1863 51 3.2.1 Employment and Promotion 51 3.2.2 Review of the 1863 Act 55 3.2.3 The Civil Service Acts Repeal Act of 1869 57 3.2.4 Conclusion 58 3.3 The Civil Service Act of 1889 58 3.3.1 Nature of merit 58 3.3.2 Employment and Promotion 60

3.3.3 Conclusion 61 3.4 Public Service Act of 1896 62 3.5 Conclusion 64

Chapter 4 1900’s 66 4.1 Individual Public Service Commissioners 66 4.1.1 Public Service Acts Amendment Act of 1920 66 4.1.2 Public Service Act 1922 67 4.1.2.1 Nature of merit 68 4.1.2.2 Voters’ Values 70 4.1.2.3 Employment and Promotion 71 4.1.2.4 Subversion 77 4.1.3 Conclusion 81 4.2 Changes during the Bjelke-Petersen years 81 4.2.1 Public Service Act Amendment Act 1968 82 4.2.2 Ombudsman 84 4.2.3 Police Corruption 86 4.2.4 Other criticism 88 4.2.4.1 Closed Shop 90 4.2.4.2 Seniority 91 4.2.4.3 Favouritism 92 4.2.4.4 Patronage 93 4.2.4.5 Summation 96 4.2.5 Conclusion 96 4.3 Fitzgerald Inquiry 97 4.4 Conclusion 100

Chapter 5 Post-Fitzgerald Public Sector Reforms 103 5.1 National Party Post Bjelke-Petersen 104 5.1.1 The Savage Report 104 5.1.2 Public Service (Board’s Powers and Function) Bill 1987 107 5.1.3 Public Service Management and Employment Act 1988 108 5.1.4 Conclusion 114 5.2 Goss Government 114 5.2.1 Labor Policy 114 5.2.2 Public Service Management Commission 117 5.2.3 Public Sector Legislation Amendment Act 1991 119 5.2.4 Merit 123 5.2.5 Conclusion 131 5.3 Borbidge Government 1996-1998 132 5.3.1 Public Service Act 1996 132

5.3.2 Discipline 139 5.3.3 Conclusion 140 5.4 Beattie Government 141 5.4 Conclusion 142

Chapter 6 Code of Conduct 145 6.1 Electoral and Administrative Review Commission 145 6.1.1 Code of Conduct Inquiry 147 6.1.2 The Need for a New Code 149 6.1.2.1 Inadequacies of the Westminster Principles 149 6.1.2.2 Public Expectations 152 6.1.3 Ethics system 155 6.1.4 Ethical Obligations 156 6.1.5 Implementation 157 6.1.6 Conclusion 158 6.2 Parliamentary Committee Report 159 6.3 Public Sector Ethics Act 1994 159 6.3.1 Debate 160 6.3.2 Implementation 164 6.3.3 Conclusion 165 6.4 Conclusion 166

Chapter 7 Other Changes 167 7.1 Criminal Justice Commission 168 7.1.1 Investigation 169 7.1.2 Ethical Education 170 7.1.3 Changes to Powers 170 7.1.4 The Carruthers Inquiry 172 7.1.5 Review of Success 176 7.1.6 Conclusion 178 7.2 Freedom of Information Act 1992 178 7.2.1 Purpose 179 7.2.2 Amendment 180 7.2.3 Conclusion 181 7.3 Whistleblower Protection 182 7.3.1 Background 183 7.3.2 Sincerity of the Government 183 7.3.2.1 Lack of Knowledge 183 7.3.2.2 Politicisation 185 7.3.2.3 Blowing the Whistle to the Media 186 7.3.3 Hypocrisy 188

7.3.4 Supervision 189 7.3.4.1 Review 189 7.3.4.2 Whistleblowers Information Sheet 190 7.3.4.3 Parliamentary Committee Call for Review 191 7.3.5 Conclusion 192

7.4 Integrity Commissioner 193 7.4.1 Role of the Integrity Commissioner 193 7.4.2 Public Sector Ethics Amendment Bill 2000 194 7.4.3 Review 196 7.4.4 Conclusion 198 7.5 Conclusion 198

Chapter 8 Conclusion 201 8.1 Beneficiary-Servant Relationship 201 8.2 Public Choice Theory 202 8.3 Queensland Colonial Government 205 8.4 Twentieth Century 206 8.5 Public Sector Reform 207 8.6 EARC Ethics Regime 208 8.7 Other Changes 209

References 212

Statement of Original Authorship The work contained in this thesis has not been previously submitted to meet requirements for an award at this or any other higher education institution. To the best of my knowledge and belief, the thesis contains no material previously published or written by another person except where due reference is made.

Signature

Date

Acknowledgements Over the last eight years I have exhausted a number of supervisors. Through personal misfortune or career redirection many of them have had to pass on the baton and the burden of supervision.

Thank you to Assoc Prof Noel Preston for getting me onto the PhD road. He has been an academic, professional and personal inspiration ever since I met him. Dr John Harrison and Prof Roger Scott turned my waylaid ideas into a topic. Most importantly they convinced me to stay away from quantitative analysis. Dr Peter Isaacs provided two years of valuable guidance and converted my topic into a thesis. Finally, Dr Sharon Hayes helped tie it all together and got me over the finish line.

I must also thank my friends and family who are sick of the excuse that I could not attend because I had to work on the thesis. Finally, and most importantly, my wife who wed me mid- thesis, has put up with my frustration, anger and depression, and won’t know me after graduation.

Chapter 1 Introduction

To date, the sincerity of public service legislation in Queensland has not been scrutinised with any rigour. Studies of the legislation have focused on other characteristics. Historians such as Taylor, Fraser and Howatson, for example, told the history of the legislation which governed the Queensland civil service (later ‘public service’) from 1859 to 1988 as a narrative. Colley also conducted a study of the changing nature of the ‘career service’ in Queensland from 1859 to 2000. Each of these studies had a different focus and methodology.

Taylor and Howatson each produced a commentary on the public sector legislation and its development: Turner1 from 1860 to 1922 and Howatson2 from 1922 to 1987. Some commentary was provided, but both studies concentrated on the effects of each piece of legislation or the structure of Queensland public service administration. Turner and Howatson did not explain what the legislation was intended to achieve, how it was to be given effect or determine the drivers behind the need for legislative reform.

Colley3 provided a chronological discussion of the development of the notion of the career service in Queensland from 1859 to 2000. She examined early legislation using a late twentieth century definition of career service. Colley did not examine the legislation in their historical and social context. While Colley identified opportunities for executive control of issues such as employment, she did not provide an analysis of the cause and effect of these powers. The present thesis will attempt to present a detailed analysis of historical and theoretical context as well as institut5ional impact in terms of the effectiveness of accountability.

This thesis will therefore argue the following hypothesis: The Queensland government has avoided implementing effective ethical regimes where such implementation could impede re-election. This hypothesis will be tested through an examination of the history of state public administration in Queensland. It will focus on historically contingent notions of who public

1 Turner A 1982 Queensland Public Service: a short history of legislation prior to 1922, AIPA Queensland Regional Group, Brisbane. 2 Howatson R 1988, Queensland Public Service: a Short History of Legislation from 1922 to 1987, RAIPA (Queensland Division) Monograph Number 11. 3 Colley L 2004 Myth, Monolith or Normative Model?: Evolution of the career service model of employment in the Queensland Public Service 1859-2000, unpublished doctoral thesis, Griffith University.

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servants served, who was able to become a public official, what was their role, and how they should meet the demands placed upon them.

This thesis will employ Anthony Downs’ Public Choice Theory as a useful theoretical framework to examine this hypothesis. There are two potential ways of using Downs in this thesis. First, Downs can be the lens through which the history of Queensland accountability is examined. This approach does not involve a critique of Downs. Rather the historical events would be categorised in accordance with ideas of public choice theory. For example, it would be presumed that all actors within the history are motivated primarily by self-interest and, if they were to act rationally, would prefer to give effect to their desires in preference to those of others. Examining the actions of public officials and politicians through this lens would reveal their motivations and any themes in their conduct. Specifically, it would be possible to determine whether they acted rationally, as defined by Downs, or irrationally. Such a discovery would determine whether self-interest really was a primary motivator of political action in Queensland history.

This type of study has been used many times in the past. For example, there are a number of both Marxist and Freudian historical analyses.4 The premise of each of these types of historical analyses is that Marx or Freud will allow the reader to see historical events in a new light, with a fresh explanation of motivations, and therefore allow a broader, and hopefully better, understanding of both past events and future actions. This type of history is also better for the analysis when the subject matter is a single homogenous and small sample, such as is the case in this thesis. If multiple case studies are used then the subject matter becomes the theory rather than the history, as explained below. This thesis is designed to examine Queensland history under a new light.

The alternative method would be to use Queensland history as a means of determining the validity of Downs hypothesis. This approach would reverse the presumptions. In stead of accepting the reliability of Downs, we would examine history to see whether the political actors acted as Downs predicted. If they did not, then we could conclude that Downs’ hypothesis is not a reliable tool upon which to describe human motivations. For example, if it were found that, following an examination of 150 years of Queensland government, politicians, in the main, did not act ‘rationally’ in accordance with Downs’ version of public choice theory, then it would be reasonable to conclude that Downs did not present a realistic thesis. More particularly, one or both of the premises for his argument would not be supported. This method is far more limited than the first. It is not preferred in this instance as such a methodology is best aligned with a number of case

4 Goldstein J 1994 Foucault and the Writing of History, Blackwell, Oxford; Harvey J K 1988 History, Classes and Nation States: selected writings of V G Keirnon, Polity Press, Cambridge.

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studies rather than, as in this thesis, as single case, namely Queensland. A larger number of case studies allows for greater verification of the validity of the theory. One case study does not produce a valuable result. A correlation between the thesis and the events could be chance and not provide a reliable means upon which others could decide whether Downs theory is, in fact, borne out.

It would not, of course, be possible to do both. It would be illogical, and ultimately inconclusive, to attempt to enlighten the nature of Queensland history, while simultaneously testing the validity of the theory being used to conduct the historical analysis. If both are uncertain then neither can reliably tell the reader anything about the other. For example, if Queensland history were to be used to test Marxist theory then we would have to have some certainty not only of the facts of Queensland history but also the social, cultural and individual drivers that brought about the events that make up that history. We could not concurrently try to identify those drivers by using a Marxist analysis.

Consequently, Downs will be the lens through which the story of Queensland accountability will be viewed. The terms of his theory, which will be explained below, will be taken as axiomatic and applied to the events described in the body of this work. However, this thesis will not test the validity of Downs’ notion of public choice theory. Rather, the thesis will be testing a hypothesis and using Downs’ theory as a foundation.

Throughout this thesis the term ‘government’ will be used to refer to the executive members of the elected government, that is, the ministry. As there is insufficient information to determine the individual intentions or states of minds of the various ministers, it will be assumed that, unless otherwise stipulated, they acted with one mind in accordance with Cabinet solidarity. 5

1.1 Background: the Beneficiary-Servant Relationship For the purposes of this thesis the civil service relationship will be described as one between beneficiaries and servants. Public officials provide services to a class of individuals who thereby become beneficiaries. Beneficiaries are the people who receive the direct benefit of the services provided. While service can be provided in either the public or private sectors, the scope of this paper is limited to the ‘public sector’ in Queensland and its historical roots.

5 For ease of reference, the term ‘bureaucracy’ will be used to refer to an organisation which administered the provision of those services usually identified with government. Likewise, the individuals employed within this sector will be generically referred to as ‘public officials’. There will, however, be a differentiation between the titles of the various services: in the feudal period the bureaucracy is the monarch’s ‘household’; in the eighteenth and nineteenth centuries it will be called the ‘civil service’; and it will be called the ‘public service’ after the introduction of full male, and later female, suffrage.

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From this perspective, it will be shown that the members of the beneficiary class, that is those persons who directly received services from government officials, varied with the political system. For example, under an idealised monarchy the king or queen is the sole beneficiary, and in an ideal democracy all the enfranchised adult population are beneficiaries. From the late Middle Ages the growth of Parliamentary representation increased the number of people who could claim beneficiary status. This tendency reflected a broadening of the distribution of power to the community away from concentration in an hereditary elite.

Generally, beneficiaries were those people in society who could influence the formation of policy. In British traditional governance, the power to make policy was mediated through the convention of responsible government. Enfranchisement provided a mechanism for a broader and broader class of persons to influence public policy through the collective power to determine who was authorised to make policy decisions. This situation does not necessarily entail that the non-enfranchised did not benefit. The British government always saw itself as serving the British people. However, this thesis differentiates between the beneficiaries, the satisfaction of whose interests was the benchmark of the success of the kingdom/community, and the rest, who relied on the beneficiaries’ prosperity ‘trickling down’ in the form of more general community wealth, infrastructure, legal rights, and all other benefits of civilisation. Historically, the beneficiaries saw their own interests as being identical to British national interests. Thus meeting the beneficiaries’ needs was equivalent to meeting Britain’s needs. The broader class of British subjects’ needs were met as an ancillary to the main project – the advancement of Britain in the community of nations.

1.2 Public Choice Theory In his seminal 1957 work An Economic Theory of Democracy6, Downs proposed a rationality of political action based on public choice theory. Anthony Downs’ Public Choice Theory postulated that rational persons are motivated primarily by self-interest; while people may be concerned about other people, they will give first priority to the satisfaction of their own interests and only satisfy the needs of others to the extent that such actions will not interfere with their own personal goals. Downs’ hypothesis has two parts. First, rational people follow a ‘self-interest axiom’ (the axiom). The axiom states that rational people will seek their own safety and happiness even it requires depreciating the safety and happiness of others.7 However, many obvious examples seem to refute this premise, such as parents who sacrifice their own convenience for the benefit their

6 Downs A 1957 An Economic Theory of Democracy, Harper Collins Sydney. 7 Downs 1957, op cit, p.27.

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children. Although Downs did not claim that a person would not choose to help a child in conflict with self-interest such irrational behaviour is nonetheless irrational in his schema.

If the Downs self-interest axiom is applied to government it will be seen that rational beneficiary would always demand that their needs are met in preference to the servant’s needs, the logic of the beneficiary-servant relationship outlined above. However, if the axiom is applied to the servants themselves their behaviour can be characterised as irrational, as in complying they are placing the needs of others before their own. Servants are regarded as rational only if they are adequately compensated for suspending satisfaction of their own needs. Thus, servants are rational if their remuneration for service provides a greater benefit than they would receive had they acted in their own self-interest.

The second element of Downs’ hypothesis is that in pursuing the self-interest axiom, a rational person will allocate time and effort efficiently to produce the greatest benefit for the least expenditure. In this thesis this premise will be referred to as ‘self-interest efficiency’. Rational beneficiary’s achieve their self-interest efficiency by inducing other persons to produce the service for them. In this way, if the financial cost of employing a servant is less than the value of the benefits obtained, the beneficiary gains more than they would otherwise be capable of achieving without the labour of servants. Thus it is efficient for the beneficiary to participate in the relationship.

If Downs’ hypothesis is applied to servants the result seems to conflict with the beneficiary-servant relationship. The servant’s benefit is remuneration. Downsian logic presumes that a rational servant would allocate the least time and effort for their remuneration, thereby exercising the most efficient means of obtaining their goal. Consequently, a rational servant will seek to minimise compliance with the beneficiary’s needs and maximise compensation.

If Downs is correct a beneficiary’s desires for the most benefit for the least expense will conflict with the servant’s desire for the greatest compensation for the least time and effort. This conclusion characterises the recurring issue in bureaucratic ethics, namely, how does the beneficiary ensure that they obtain cheapest, best quality service in an efficient manner? The question appears to be one of supervision and accountability. However, the institutional bureaucratic need for servant to supervise other servants complicates this theory. Accordingly, this thesis examines how Downs applies his theory to politics.

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According to Downs, the major actors are the political parties, which he sees as behaving just like individuals. How the parties will act in any given circumstance is a function of the axiom and self-interest efficiency. Political parties will try to achieve their self-interest goals in preference to helping anyone else, and will attempt to obtain their goals in the most efficient manner possible.

Downs wrote that political parties are teams of people unified in their goal to obtain public office through electoral success. They are distinct from the citizenry in so far as most citizens do not belong to such a team.8 They seek public office because it will bring income, power and prestige through the ruling party’s ability to compel others to comply with its decisions, subject only to constitutional boundaries. Downs acknowledged that a particular individual, or even group, within the team may have a seemingly altruistic goal that can only be obtained through public office. But, he said, from the team’s perspective this is a secondary goal for two reasons, not everyone in the team may share this secondary goal and this goal is contingent on taking office. For example, a politician’s personal altruistic goal may be the improvement of education for the disenfranchised, but he would recognise that he must join a political party to achieve this goal. Consequently, Downs said “…parties formulate policies in order to win elections, rather than win elections in order to formulate policies.”9

Having established how his two basis premises apply in representative democracy, Downs pointed out that realising the team’s goal in a democracy deductively requires some necessary conclusions. The most important of these for our purposes are outlined in the following syllogism: 1. The primary goal of every political party is re-election; 2. Non-extremists receive more votes; Therefore parties seek the median ground.10

It does not seem logical that the voting public continually would elect people who were obviously shallow in their outlook. However, voters are also bound by the axiom and self- interest efficiency. Downs said voters have no incentive to follow politics closely. When it comes to politics, rational self-interest requires people to always choose the course of action which provides the most utility. When Downs applied the axiom and self-interest efficiency to the public, he concluded that the average person, who does not have a

8 Downs 1957, op cit, pp.25-26. 9 Downs 1957, op cit, p.28. 10 For application to the Blair Labor Ministry see Kenny M & Smith M 1997 ‘(Mis)understanding Blair,’ Political Quarterly, pp.220-230, at pp.224-225. This application has not been carried through to its logical ends. Specifically it ignores the fact that people are allowed to have altruistic ends, under Downs’ theory, as long as they are not primary ends. The pursuit of unpopular policies by Blair is therefore covered by the theory as long as such activity does not interfere with the primary goal of re-election.

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career dependent on politics, sees relatively little benefit in applying time to following politics. The benefits received from government, such as roads, education, safety and other services, are for the most part unaffected by which party is in office, and therefore they are taken for granted.

Downs said voters judge political parties based on our Utility Income, that is, the aggregate of benefits, either known or unknown, that each of us receives from the government. A rational individual will vote for the party which provides them with the best perceived utility income in the future. Thus when considering courses of action for government it is important to remember that the actual utility income is only relevant to the extent that the voter is aware of it. Thus voters with the personal goal of a safe and comfortable life for their families, who had good incomes and safe and healthy families, would regard their needs as met. This person will see no benefit is spending time listening to parliamentary debates, reading Senate Committee Reports or following party policy debates to assess the party in power’s performance.

When the rational self-interest positions of the political parties and the voters combine they lead to the following premises and conclusion: 1. Political parties seek re-election; 2. Most voters do not scrutinise their actions closely; Therefore, political parties should spend more time trying to look good than being good.

Political parties can maintain themselves in office without exceptional performance so long as the voting public does not perceive that performance as inimical to future utility. Therefore, they do not need to aspire to exceptional performance to achieve their goal.

Recall that Downs was not saying that every politician or voter will act in this manner. He was simply saying that, all things being equal, rational actors will comply with the axiom and self-interest efficiency and that most people behave rationally most of the time. In line with Downs this thesis therefore assumes that most people, regardless of their personal perception of motivation, will behave as Downs predicted.

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1.3 Rational Corruption Downs excluded corruption from his thesis because it complicated his argument.11 However, this thesis argues that the axiom and self-interest efficiency can indeed explain corruption. Circumstances will arise in which it is rational for some holders of public office to manifest this utility through corruption. Corruption is a probable outcome if a rational person is faced with an illegal opportunity to reach their goal more efficiently than through legal means, and the disutility of getting caught appears unlikely. Circumstances of greed, high marginal return and inadequate compliance enforcement provide a very efficient utility outcome.

Downs explained that the goal of a rational political party is to obtain and retain office. As the axiom states, they will seek to meet their goal in preference to meeting the needs of anyone else, including the electorate. Under the efficiency principle, they will also take the path of least resistance towards that goal. On this basis we can posit the following hypothetical scenario: • Party A needs a certain marginal seat to win government; • Person B, who has local influence, can guarantee a sufficient swing of votes to ensure Party A will win; • B agrees that Party A will get the votes as long as he is appointed to a highly prestigious, well paid position on a government board; • The press and public rarely scrutinise the appointment process to boards; • The party in power is very unlikely to lose office because of making a cronyistic appointment; • Person B is appointed to the position.

Corrupt activity can also occur within government agencies by non-political actors. In the pursuit of their personal utility, some public officials will give less attention to the duties of their offices than reasonably necessary or appropriate. The most efficient means of satisfying their self interest would be to perform the minimum amount of work that they feasibly could get away with. While seeking the most efficient path to their goal, some public officials may determine that the remuneration for their position can be obtained without due care and attention to their work. Of course this poor standard could lead to mismanagement and negligent harm to others. The utility of following this path will not be determined by the affect on others, as the axiom states that the needs of others are

11 Downs 1957, op cit, pp.22-23. In order to reduce the number of variables in the theory, Downs made the following, in his own words “unrealistic”, assumptions: “The self-interest of each [party member] has at least two limits: (1) he will not perform illegal acts, such as taking bribes or using his power to violate the constitution, and (2) he will not try to benefit himself at the expense of any other member of his own party team.” (Downs 1957, op cit, p.30) This is unnecessary for the following paper and will not be discussed.

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secondary to the officials’ own needs. The only impediment, therefore, to official negligence is the likelihood of the servant being caught and punished. A risk assessment will establish the point at which the likelihood of detection outweighs the profitability of poor performance. Following the axiom and self-interest efficiency principle, rational officials should reduce the amount of care and effort they put into their work to the lowest possible level above the breakeven point in this equation.

Consequently, if Downs is correct corruption, negligence and mistakes will occur regularly. Unfortunately for the party in office if this tendency becomes public knowledge its re-election chances will be reduced. A party in power that performs a corrupt or incompetent action would reduce the individual voter’s utility income as the benefits have either been diverted to private interests or wasted. However, the party in power can rely on rational voters to pay very little attention to politics. Since voters rely on perceived utility income rather than actual performance, corruption, negligence and mistakes only will impact on the individual voter who is made aware of the diversion/waste and injustice. Therefore, if the diversion or waste can be kept from public knowledge, the party in office will suffer no detriment in the pursuit of its goal of re-election.

Therefore, it is in the interest of an incumbent rational party to keep corrupt, negligent or incompetent incidents secret. Consequently, the public cannot rely on the party in power to either perform its role effectively or keep the public informed of the standards of performance. The electorate has two solutions: first, individual voters could pay more attention to politics. But we have already established that this course of action is irrational for most voters, most of the time. Second, they could demand the establishment of a system that will disclose corruption, negligence and incompetence without effort being expended by the individual voters. This system would require a new set of servants to watch the servants.

These watchdog servants would need to: 1. Set standards that require the servants to comply with the beneficiaries’ goals; 2. Supervise the servants to ensure the maintenance of those standards; 3. Identify those who comply with, and those who breach, the standards; and 4. Adjust outcome values through punishment and reward.

These steps protect the perceived and actual future utility of the public but are not rational for the party in office. As many years of criminology have shown, it is impossible to eliminate crime. Assuming the same applies to greed and sloth, then corruption,

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negligence and mistakes will still occur regardless of the system in place.12 Any party in power is faced with the following problem: • A party has less chance of re-election if the public is aware of corruption, negligence and mistakes • Corruption, negligence and mistakes are unavoidable; • Good accountability will expose corruption, negligence and mistakes; • Therefore, a party has a better chance of re-election if it faces less accountability.

The problem for a party in office is that the public wants accountability to ensure they receive the maximum utility income. This presents a paradox: the people who can re- elect a party want that party to implement the very systems the party rationally avoid to obtain re-election.

1.4 Managing Perception At this point it is necessary to remember that voters react to perceived, rather than actual, utility income. Therefore, if the party in office can convince voters that accountability systems are in place, they will secure public support for their re-election. However, if the accountability systems are weak they will not effectively uncover embarrassing corruption, negligence and mistakes. But the public will not accept such a system and the party in office is still in danger of losing the election. Fortunately for the party in office the very accountability systems’ weakness prevents the voters from knowing that the system is weak and, consequently, the true extent of corruption, negligence and mistakes.

The party in office can rely on the public sector to support, unwittingly, this plan because of the efficiency principle. Rational public officials seek to obtain their pay through the least amount of effort. Meeting ethical standards requires public officials to work harder for the same personal utility – so-called ‘compliance costs’. Therefore rational public officials avoid compliance with accountability systems because the additional effort required makes it inefficient in obtaining personal utility. Poor compliance means insufficient information to discover the extent of corruption, negligence or inefficiency among public employees. Thus in the same manner as government inactivity disguises misconduct, public officials’ failure to comply is the best method of concealing their own faults.

Thus it is clear that the self-interest axiom and efficiency principle operate to ensure our system of government will ensure accountability mechanisms that are intended to

12 Anechiarico F & Jacobs J 1998 The Pursuit of Absolute Integrity: How Corruption Control Makes Government Ineffective, University of Chicago Press, Chicago.

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discover little but are sufficient to convince voters that the party in power is genuine in its determination to ensure the public sector acts in the public’s best interests.

This thesis will test this hypothesis by examining the Queensland government’s history.

1.5 Methodology Downs’ theory is sufficiently robust to be considered a viable paradigm to explain political decision making. His thesis applies Bentham and Mill’s utilitarianism to modern party based parliamentary government.13 The relative simplicity of the underlying rational has allowed Downs to robustly survive over the decades. Many studies have sought to test his thesis in limited circumstances. Peters and Hogwood found that Downs’ ‘issue- perception cycle’ of public attention to politics was supported but needed greater detail to fully represent the electorate’s response to policy.14 Two recent studies have supported Downs’ prediction that voter turnout would be higher when election issues were polarised.15 Abrams also quantitatively showed that political parties respond rationally to lobby groups.16 Breton has also supported the relevance of public choice theory to the study of politics.17

The only critics who address Downs’ as opposed to public choice theory in general, only deal with one aspect of his thesis, namely the ‘median voter model’ in which candidates seek the middle ground to maximise their chance of election.18 The only other significant criticism is by Thomas Ireland who claims that Downs’ hypothesis would not work in the unique structure of the United States federal system.19 Neither Ireland’s concerns nor the median voter model is relevant to the current thesis which restricts its analysis to Westminster democracies. Given the small amount of criticism and the lack of concerns published about the aspects of Downs’ theory used in this thesis, it is concluded that rational public choice theory, to the extent that it is addressed here, is a satisfactory basis for this study.

13 Beetham d 1993 ‘Four theorems about the market and democracy,’ European Journal of Political Research, vol.23, pp.187-201, at p.193. 14 Peters B & Hogwood B 1985 ‘In Search of the Issue-Attention Cycle,’ The Journal of Politics, vol.47, pp.238-253. 15 Hanks C & Grofman B 1998 ‘Turnout in gubernatorial and senatorial primary and general elections in the South, 1922-1990: A rational choice model of the effects of short-run electoral competition on relative turnout,’ Public Choice, vol.94, pp.407-442; Abramowitz A & Stone W 2006 ‘The Bush Effect: Polarization, Turnout, and Activism in the 2004 Presidential Election,’ Presidential Studies Quarterly, vol.36, no.2, pp141-154. 16 Abrams B 1977 ‘Legislative Profits and The Economic Theory of Representative Voting: an Empirical Investigation,’ Public Choice, vol.31, pp.111-119. 17 Breton A 1993 ‘Toward a presumption of efficiency in politics,’ Public Choice, vol.77, pp.53-65. 18 Hardin R 1999 Street-level Epistemology and Democratic Participation, paper presented at the meetings of the European Public Choice Society, Lisbon, 7-10 April 1999; 19 Ireland T 1971 ‘The Structure of Political Party Organization,’ Business and Society, vol.11, no.2, pp.10-17.

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Application of this paradigm to any government will show a system under which elected officials take many steps to ensure that they appear to be meeting the public desire for accountability, while avoiding implementation of effective systems. A party in power with a genuine commitment would not act hypocritically by undermining statements of ethics, ignoring provisions of laws or creating unjustifiable exceptions to rules.

A party’s commitment to accountability may be gauged by examining the manner in which it has developed and implemented accountability mechanisms. A party in power with a bona fide intention would: 1. ensure they had an understanding of what they were implementing; 2. avoid hypocritical acts which undermine the policy; and 3. ensure public servants understood the legislation, and that it was being implemented and carried out in accordance with the spirit of the Act.

This hypothesis can be tested by comparing the party’s statements with the contents of a Bill before Parliament. A disparity between what was said and the Bill’s contents, would indicate that either the Bill was so uncontroversial as to permit negligence, or the party in power was trying to deceive the public as to its real intentions. Either outcome can be explained by the axiom and self-interest efficiency principle.

Failure by the party in power to fully understand the provisions of a Bill it introduced is a reliable indicator that the party saw the Bill as having a low priority and that it had little impact on the party’s real goals and priorities. If the Bill related to accountability, it could be concluded that the party in power did not see accountability as a priority. Alternatively, the identified errors may have been intended to deceive. If this was the case, the party in power would have fulfilled the scenario outlined above of providing apparent accountability without effective legislation.

Second, a party in power that embraced accountability would not intentionally contradict accountability provisions. They would believe in the spirit of the law and not want to act in a contrary manner. A politician or party that enacted the legislation would avoid hypocritical actions which would undermine confidence in the provisions’ intent.

Testing for hypocrisy is relatively simple. A politician may offend against the Act either knowingly or by accident. It is not possible to determine the politician’s motivations at the time. But, it is possible to test the proposal by assuming that all breaches were accidental. If a person genuinely felt themselves bound by an Act, as soon as an accidental breach of its provisions was detected action would be taken to reaffirm the Act’s intent and not leave a bad precedent that would suggest others could avoid the

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legislative intent. On the other hand, hypocritical politicians would have no qualms in protecting their own reputation at the expense of undermining the legislations effectiveness.

Finally, genuine supporters of the legislation would want to ensure effective implementation. If this were not to occur then their efforts in passing the legislation were in vain. Supportive politicians would not just ensure that people complied with the Act, but that its provisions and practice were reinvented to identify flaws and opportunities for improvement. Review could occur by a reviewing responsibility built into the Act, review by the lead agency performing its obligations to administer the Act, or a request for review from another supervisory body, such as a minister or a parliamentary committee. Such a review would be a matter of course and not merely be prompted by an embarrassing revelation about the legislation and in response to a call for an investigation. A genuinely supportive party in power would have ensured systems were in place from the outset to review the legislation’s operation which would identify any flaws before the publication of a scandal. However, the failure of a party in power to investigate such a revelation would be strong evidence that it was not genuinely concerned to safeguard proper implementation of the legislation.

1.6 Sources Six primary sources of information will be analysed to test the points outlined above.

The first sources are historical publications setting out the nature of feudal England and the reform of the British government and civil service. These sources are necessary to establish the development of government in British, and therefore Queensland, history. The historical information provided in chapters 2 and 3 will provide the context to position the theoretical framework.

The second is Queensland Parliamentary Debates. Transcripts of discussions in the House provide a contemporary and detailed source of the stated intentions of politicians in relation to legislation. Examining parliamentarians’ statements in support of the Bill reveals their understanding of a Bill’s contents. It is also possible to examine instances were politicians have been discovered acting hypocritically and how they have justified or explained their action. One of the features of Hansard is that the opposition’s role is to point out instances of deception, hypocrisy or failure of understanding by the party in power. These claims not only incite responses from the government members, but provide a focus for external research to test the allegations.

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The third source is reports from review bodies such as parliamentary committees, committees of inquiry and royal commissions. These sources include reports from watchdog bodies such as the Crime and Misconduct Commission (CMC). Reports of this nature uncover politicians’ hypocritical actions and also expose the quality of public sector supervision and administration of the legislation. The sources’ reliability may depend on the panel’s membership. For example, a parliamentary committee may write a report on party lines and attempt to protect, or alternatively to unfairly attack, the party in power’s interests. Independent committees of inquiry are seen to provide a more reliable source of information, and so greater reliance is placed on their reports in this thesis.

A fourth source is academic publications. Academic examination of government action and study of the legislative intent is a form of review. Articles and books of this nature will provide material to direct investigation of failure to meet the three levels of performance expected of a genuine party in power. Once again it is important to be wary of conflicts of interest on the part of authors as many key academics in recent history have also been participants in the development and application of the public service legislation.

Fifth, government reports on the administration of the legislation detail what the party in power claims to have done. Reports mostly will take the form of annual reports by the bodies charged with the oversight of accountability and ethics regimes in government. In line with this thesis’ analytical framework, it is expected that annual reports will all be positive. Initiatives not mentioned in an annual report could be expected not to have been carried out. Agencies pursue their own self-interest through boasting of their every action that can be labelled an achievement. Therefore, if a course of action which would support the objectives legislation has not been included in an annual report there is a high probability that that action has not taken place.

Finally, autobiographical works by bureaucrats or politicians provide an insight into the major players’ intent about legislation. Above all other sources, biographical material needs to be treated most cautiously as they are a personal presentation of hindsight designed to flatter the subject and enhance the subject’s reputation. The information contained in such works will therefore be used with due scepticism.

Works of journalism will not be canvassed. Journalists rarely know all the facts, may lack sufficient knowledge of the subject matter to provide informed opinions, or may be compromised by editorial policy or proximity to the centres of power in ways that are opaque to researchers. Most importantly, they are unlikely to provide the insights into government decision making and action that are needed in this thesis. Given the more

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appropriate sources available it was decided that the time needed to be invested in a media search could not be justified for the small additional benefit it would produce.

1.7 Chapters Chapter Two examines the British government in the period before the Moreton Bay settlement. The chapter will provide a history of the English system from its feudal origins til the Northcote-Trevelyan reforms in 1853. This period is important because it sets out the context for the attitudes and structure of administration in the Queensland colony. Too often authors refer to the government’s actions from the perspective of modern administration. They do not see the context in which the changes were made and, therefore, miss the evolution of ideas taking place. The chapter will cover three periods. The first will be the commencement of the relationship between Crown and service providers under the feudal system. Next the chapter will cover the development of constitutional monarchy in which power shifted from the aristocracy to the Parliament. This section will also explain the corresponding change in the Crown’s role. Finally, chapter two will cover the Reform period, in which the Parliament took precedence over the Crown, and assumed control over Executive functions of government and the civil service.

Chapter Three will examine the Queensland colonial government from its inception to the turn of the century. Federation will not be discussed. Rather the focus will be upon the establishment of the Queensland civil service, first under the New South Wales administration and finally under its own government. The chapter will explain the government’s lack of direction and experimentation while trying to establish a compliant civil service. The government served the interests of the Queensland elite and the civil service was designed to be inhabited by members of the same class of gentlemen. The chapter will discuss the definition of a ‘gentleman’ and why gentlemen featured so strongly in the service. The discussion will centre on the various attempts to create an administration apparently free of patronage.

Chapter Four will examine the period of civil service egalitarianism from the turn of the century until the period after the Fitzgerald Report. This period is significant for two reasons. Importantly, the Public Service Act 1922 brought in a system that lasted sixty-six years with only routine amendments. The first part of the chapter will cover the lead up to its passage and its contents. The second section will cover the introduction, under the Act, of a single Public Service Commissioner who, under Governor in Council supervision, had virtual total control over public service planning and operation. The Commissioners were meant to and appear in fact to have displayed integrity and wisdom and brought a new vocational focus on what it meant to be a public servant in an

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egalitarian democracy. After forty years the government decided the there was too much work for a single commissioner and reconfigured the institution as a Board. The 1970s and 1980s saw many changes in service but it was not until the Savage Report in 1987, and the subsequent Premiership of Mike Ahern, that major change occurred. This change resulted from the incursion of managerialism into Queensland and the attempts to follow the world trend towards introducing market forces to the public sector.

The concept of managerialism is at a tangent to, and so will not be discussed in, this thesis. The application of the concept in Queensland was haphazard and there is evidence that it was merely a title applied to changes which had political rather than management goals. Moreover, the Fitzgerald Inquiry shaped the character of what it meant to be a public servant in Queensland and interrupted the introduction of private sector inspired managerialist changes. The National Party’s last attempt to re-invent itself as committed to honesty and transparency will be discussed briefly at the chapter’s end.

Chapter Five will change tack. With the major changes that occurred post Fitzgerald, the final three chapters will be split into themes rather than following a chronological progression. The Goss Government’s two terms saw major change in the Queensland public sector. First, the Goss administration was very concerned to demonstrate its commitment to introducing the reforms recommended by Fitzgerald and the subsequent Electoral and Administrative Review Commission (EARC) reports which applied the Fitzgerald goals. These changes brought Queensland into line with many administrative reforms already introduced into other jurisdictions. This reform agenda had, however, never been part of ALP policy before 1989. The second source of impetus for Goss’s reform program was the implementation of pre-Fitzgerald Labor policy. Academic advisers to the Labor Party in opposition designed a policy to implement public sector management structural changes. These changes would make Queensland follow the trends in human resource management being implemented in other jurisdictions. These policies were controversial at the time of introduction. This chapter will examine whether the Goss government followed up the many changes to the public sector legislation with a genuine attempt at implementation. In this turbulent period there were two major pieces of super ordinate public service legislation and four incarnations of a central public service lead agency. For the first time in over fifty years, governments changed on a regular basis. This flux, and political expediency, brought about a period in which the Queensland public sector received more attention than in any other time in the twentieth century.

Chapter Six will focus on the EARC process in relation to Codes of Conduct and the consequent Public Sector Ethics Act 1994. This key piece of legislation attempted to

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create a unified system of ethics and discipline and to codify the principles and obligations under which the system would operate. This Act remains unchanged, excluding additions, till this day. All agencies have developed individual codes of conduct in accordance with its principles. As such it deserves a more detailed examination than other pieces of administrative legislation brought in around the same time.

Chapter Seven will cover the other pieces of legislation that were passed that relate to the public sector. This will include the establishment of the Criminal Justice Commission, which became the CMC, the Whistleblowers Protection Act 1994 and the establishment of the Integrity Commissioner in 2000, under the Public Sector Ethics Act 1994.

The last twenty years have seen the introduction of managerialism and ‘new public service’ to academic debates. However, neither features in the documentation or Queensland Parliamentary Debates. It is therefore assumed that despite lip-service in some public forums, neither appears to have affected policy formulation in the public sector. Consequently, analysis of these two concepts will not form a part of this discussion.

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Chapter 2 British Public Sector Reform

The thesis submits that the following rules about service apply irrespective of the nature of the beneficiaries. First, servants in the performance of duties only can serve their own interests to the extent that they do not diminish or damage the interests of any beneficiary. Servants are recompensed for the subordination of their interests to those of their employer. The beneficiary’s rationale for this recompense is that the servants will provide a service that the beneficiary will not, or cannot, provide for themselves. From a contractual perspective, if the servants failed to meet the beneficiaries’ needs they would be in breach of contract. Likewise, if servants pursue their own interest to the detriment of beneficiaries, such action would amount to fraud, which may vitiate the contract. In conclusion, while performing their duties, servants must submit their own interests to those of the beneficiary.

This thesis will deal in passing with the reciprocal need for the beneficiary to compensate sufficiently the servant for service. While it is acknowledged that the topic of compensation is a part of the ethical relationship a discussion on this point would introduce other areas of study, such as industrial relations, which cannot adequately be examined in this thesis.

Second, beneficiaries can supervise their servants to ensure that the servants are performing their duties adequately and acting in the beneficiaries’ interest. The beneficiary can ensure that the contract of service is being met through accountability of servants. In the absence of proactive accountability, a beneficiary would find it difficult to verify the proper performance of the actions of the servant.

Finally, a beneficiary may be justified in discharging a servant who is found to diminish or damage the beneficiary’s interests. Such action on the part of the servant would be a breach of contract. Consequently, the beneficiary may terminate the contract.

A modern observer would characterise the pre-modern period of British government as heavily corrupt. The patronage, nepotism and bribery common in pre-modern British government is also characteristic of many less developed countries. Contrary to what might be expected, the reform movement of the 18th and 19th centuries sought to ensure greater efficiency in the operation of government and to reduce the influence of the Crown, not to improve ethics. The reform movement’s leaders were not motivated by modern democratic ideals and the notion of public trust was in its infancy. The movement

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from Dark Ages anarchy to modern liberal representative democracy was not a teleological progression. Reformers were unmoved by liberal ideology and only addressed contemporary political, administrative and economic concerns. If there was a particular end, it was to shift political power from the monarch to the Parliament. The principal reason for reform was the final step in the reduction of the influence of the Crown and its household in the control and influence over the government administration. While it could be argued that ideological concerns for the good of the community drove reform, it is also valid to apply a purely Downsian theory of personal interest.

Patronage is an essential tool for political success. The previous chapter demonstrated that it is rational for a party to use rewards not based on merit as a means of securing office. A party in power can distribute largesse. Although they are accountable to the public to ensure that such distribution is fair and equitable, a party’s goal is re-election and not the satisfaction of the public’s needs. A rational party will use patronage to improve efficiently its chances of election, as long as it does not think its behaviour will be exposed. This chapter will demonstrate the value of patronage as a political tool. A corrupt practice is one which undermines the ideals of the system within which it occurs. In early forms of government, patronage was not only necessary but appropriate.

This chapter will also establish that servants had greater scope to act in their own interest under a monarch than when serving multiple beneficiaries. Like the sole owner of a company, a king could give his servants licence to act in their own interest. On the other hand, a modern ministry is like a board of directors for millions of shareholders. Ministers undertake to act in the interest of others and are not authorised to give public servants licence to act in their own interest.

Finally, the chapter will show a further form of patronage. Rational beneficiaries will seek to obtain their own benefits in the most efficient manner. But rational servants will seek to further their own interests at the expense of someone else. Consequently, it is more efficient if the people who occupy the positions of power in the civil service share the same values as their beneficiaries. The best way to ensure that beneficiaries and servants share values is to give preference in employment to those who have a vested interest in the success of the beneficiaries or ensure the servants are also beneficiaries. As the range of beneficiaries increases with the gradual expansion of electoral enfranchisement, there was a corresponding likelihood that the qualifications of employment match the qualifications of enfranchisement.

This chapter will argue the above claims by tracing the political development of the British government from the Dark Ages to the time of the creation of the Queensland colony.

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Each section of this chapter will detail a particular aspect of the importance of both patronage as a tool and the need to shared goals to secure beneficiaries interests.

2.1 Feudalism This section will examine the nature of the feudal government as a starting point in the evolution of modern government. The section will provide an explanation of the feudal system, the nature of feudalism and service to the King, and the development of the King’s household government because of the failure of the feudal experiment.

2.1.1 The Feudal System The Dark Ages was a time in which a system of government was created from the ground up. The collapse of the Western Roman Empire resulted in a period of relative anarchy within its former borders. After the barbarian invasion, Western Europe lost its central government. Regional governments and power structures reflected the opportunism of migratory armed populations. Settlement increased after the barbarian migrations ceased. But the new settlements were a mixture of heterogeneous groups who fell progressively under the sway of local warlords. By the time of the Merovingian Frankish Kings, many free-men placed themselves under the protection and in the service of a stronger free-man.20 They became ‘free-men in dependence’ or vassals.21 The new arrangements – the beginning of European feudalism – were not a conscious decision to create a new system of social organisation, but grew out of political expediency.22 Feudalism was the predominant form of government in Western Europe for centuries from around 900AD to 1500AD.

Feudal government was the pursuit of the personal interests of the king. The land was his personal possession and its people his servants. As will be explained below, the king had certain responsibilities in relation to his servants, but he was not serving them. He was a self-interested individual not the representative or agent of the people. The lord was the sole beneficiary of the service provided under the feudal arrangement. The king was not an intermediary in the indirect service of the people. As Adams explains: The members of the feudal court met, not only to fulfil a duty owed to the community, but a private obligation that they had assumed in return for the fiefs they held… the feudal state was one in which… private law had usurped the place of public law. Public duty had become a private obligation. To understand the feudal state it is essential to make clear in one’s mind that all sorts of services which men ordinarily owe to the public or to one another were translated

20 Ganshof F L 1996 Feudalism, Toronto: University of Toronto Press, trans. Philip Grierson, op cit, p.3. 21 While Vassus (vassals) was originally a term for slaves and later came to include all free men serving a lord, this did not mean they became slaves. Ganshof 1996, op cit, p.5. 22 Bloch M 1961 Feudal Society, University of Chicago Press, Chicago, p.148.

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into a form of rent paid for the use of land and defined and enforced by a private contract.23

The king made contracts with free-men to secure his interests: he agreed to provide maintenance and protection to a vassal in return for service, respect and obedience.24 Protection included military aid when the vassal was attacked unjustly,25 defending the vassal in the courts, providing advice and acting fairly and justly towards him.26 Maintenance involved actions which ensured the vassal was in a position to provide the service required of him. Poorer vassals usually received a prebend, that is, permission to live in the lord’s household. Wealthier vassals received a benefice, a grant of land to both sustain the vassal and for him to administer as an agent of the lord. In the latter situation, vassals received the income of the land and held the title on a hereditary basis.27 Since the grant of land was a gift and means of sustenance, and not a payment or reward, the lord theoretically could take the land back at any time.28

The terms of a vassal’s service had to be compatible with his status as a free man.29 It usually included requirements to provide the king with military service, counsel, and funds for certain traditional ‘incidents and aids’, such as the marriage of a king’s daughters.

The feudal relationship was a very secure arrangement for the king as a breach of the obligations by either the lord or vassal was a ‘felony’.30 By the time of Charlemagne, a vassal could only quit his lord if the lord tried to kill him, attack him, hit him with a rod, violate or commit adultery with his wife, violate or seduce his daughter, deprive the vassal of part of his patrimony, make him a serf (unfree peasant) or failed to defend him.31 The vassal could, by legal ceremony, remove himself from the relationship. This was called an ‘act of defiance’.32 Alternatively, the king could remove the means of support provided to an unfaithful vassal. However, as there was no external court to arbitrate disputes, the winning party was usually the one with the most power, that is, the king.

23 Adams G B 1910, ‘Feudalism’ in Encyclopaedia Britannica, 11th ed., pp.297-302, extracted in Finer 1997, op cit, p.867. 24 Ganshof 1996, op cit, p.82. 25 ibid, p.94. 26 ibid, p.95. 27 ibid, p.9; and Block 1961, op cit, p.68 & 170. Bloch also notes at p.172, that it is likely that many so called ‘grants’ occurred when a potential vassal gave their lands to their prospective lord in return for protection, and received the land back via investiture. 28 Bloch 1961, op cit, 164. 29 Ganshof 1996, op cit, p.8. 30 ibid, p.99. 31 ibid, p.31. 32 Finer S E 1997 The History of Government from Earliest Times, Oxford University Press, Oxford, p.866. In reference to Robert of Gloucester’s ritual diffidatio of King Stephen, Strickland asserts that, in practice, it was more of justification of action than an enforceable right. See Strickland, M 1996 War and Chivalry: The Conduct and Perception of War in England and Normandy, 1066- 1217, Cambridge University Press, Cambridge, pp.40-41.

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While feudalism was a French invention it was introduced forcibly into England after the conquest of William of Normandy in 1066. He removed the existing government and Saxon nobility and replaced them with Norman ways and Norman lords. This entailed subjection of the free landed peasantry to villeinage. Vassals who had a direct benefice of the king rose in social status because of both their close relationship and the duties entrusted to them.33 In England they became known as the Barons or Magnates. These magnates had vassals and tenants of their own.

In summary, feudalism was instituted as a contract of mutual support between the weak and the strong as defined by military power. The weak would provide service in return for support and protection. The king held title over all the land and senior vassals would be allocated a portion of his land to be administered on his behalf. The revenues of the land would provide the support for the administrators and their work.

2.1.2 Feudalism as Service to the King Originally the Frankish Kings set up the system to achieve two purposes: remedy the inadequacy of administrative services in the Merovingian State and increase authority over their subordinates.34 First, vassals were to be the feudal equivalents of bureaucrats exercising political, judicial and administrative duties as well as tending to specific tasks in the king’s estate.35 While they did not have a salary, the position of Count or Duke was an office remunerated and funded through a specific grant of land. The income from the land financed the local administration and paid for the livelihood of the office holder. Thus the officer holder used the land but it remained the King’s property. While in practice the benefice could be held hereditarily, when the office was removed so was the land.36 Failure to provide service led to the forfeiture of tenancy.37 Thus it was a contract of employment. Second, the King’s authority was decentralised. Giving benefices to loyal individuals was supposed to ensure that the vassals would impose the King’s will in distant lands. The king wanted to achieve his interests, ruling the kingdom, through the most efficient means. Rather than constantly travelling to supervise the kingdom, he would delegate power to trusted officials who would rule as his agents. Kings thought tying the possession of land to the good service in office would secure support. Unfortunately, the servants’ desire to maximise their return for little effort worked against the King’s interest.

33 Ganshof 1996, op cit, p.24. 34 ibid, p.51 and Bloch 1961, op cit, p.157. 35 Ganshof 1996, op cit, p.31. 36 ibid, p.53. 37 Finer 1997, op cit, p.866.

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By the late ninth century the hereditary nature of offices and benefices was well recognised.38 Over time the continual renewal of benefices created an expectation among the families of hereditary officials that they would never lose the title or the land – literally a sense of entitlement.39 Vassals became aware that there was no impediment to their retention of the land and, instead of simply maximising their remuneration, decided to take the benefits of their own service. They secured permanent ownership through two methods. First, they claimed seisen – “possession made venerable by the lapse of time.”40 In a world with very few written documents possession was “nine tenths of the law”. Most people in this period relied on their own memory of agreements and did not see a written document as an exact statement of facts. Second, vassals controlled the military might of the kingdom. Vassals had title over most of the King’s land, and therefore most of his soldiers. Consequently, the king was powerless to do anything when vassals combined their power to pursue their interest in keeping their titles.

As the land became the property of the vassal, the king could no longer use it as leverage for support and he ceased to be seen as the ‘land lord’. Horizontally and vertically the king was isolated from his subjects. A vassal could be a vassal of another lord at the same time. Also a subject could be the vassal of a king’s vassal. Vassals of the magnates had a stronger bond to their Lord than to the King. Thus they would always side with the former rather than the latter.41 The relationship also created an artificial layer between the authority of the Crown and the individual. For example, if the king wanted to take action against a vassal of an Earl, he had to work through the Earl, who often defended the actions of his vassal.42 Consequently, the holdings of the magnates were separate governments from that of the king.

By 1100 the English magnates, namely the earls, counts and greater barons, of which there were only fifty in all England, each created their own courts which mirrored the royal court. They also developed a set of social pretensions to demarcate clearly themselves from the lower classes and their own ranks within the nobility. As Crouch explains, by 1200: “The aristocracy was now to be one of levels: earl, baron, banneret, knight and squire, under which a firm line was drawn which was not easy to cross except for laymen with a lot of wealth.”43 This short term thinking was good in so far as limiting the number of beneficiaries maximised the benefits of nobility, but the policy was self-defeating as it alienated the rest of the population.

38 Ganshof 1996, op cit, p.54. 39 ibid, p.50. 40 Bloch 1961, op cit,, p.115. 41 Ganshof 1996, op cit, p.56. 42 ibid, pp.57-59. 43 Crouch D 1992, ‘Defining an aristocracy, 1000-1300,’ History Today, Vol.42, pp.28-34.

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As the king no longer held supreme power, the magnates formed factions to support each other in the pursuit of land and power. Noble factions offered benefices to tempt royal vassals to break their oaths to the King. “Not only was the primitive strictness of the obligations of vassalage largely ignored, but the uselessness of the whole machinery of vassalage as an aid to government was thrown into sharp relief.”44 Patronage secured support. Loyalty was an ideal. People pursued the relationship which profited them the most.

Ironically, while the magnates ignored their key obligation to the King, they retained advantageous feudal rights applicable to them. As Finer pointed out, the feudal obligations of the magnates became rights. Because they had paid homage, vassals had the legal right of defiance of a king that failed to meet his obligations. Feudal summons for military service gave barons the ability to raise private armies with which they could threaten a weak king. The clear obligation to pay feudal incidents and aids prevented the king from asking magnates to fund other purposes. The obligation to give counsel became a right to access to restrain the power of the clerics who operated the Curial administration.45 The king had not only lost power to his supposed servants but was unable to prevent their exploitation of feudalism.

The king retained some traditional rights over taxation and justice that applied across his realm as if it were a federal government. For example, a vassal was not guaranteed to have judicial authority over their fief or even that he would be the king’s judicial representative there;46 enfeoffment of administrative power was separate to enfeoffment of land.47 In practice, however, the lords decided cases involving matters within their own jurisdiction, except for matters involving a royal prerogative or royal land, which were dealt with by the King, or a matter of Canon Law, over which the Church had sole jurisdiction.48

The king was now a ‘first among equals’ who exercised the powers of head of state, not those of an absolute monarch. First, the king’s power was restrained politically by the goodwill of the magnates, the Church, and the size of his personal “demesne”, that is, whether he had enough money from his lands to fund a larger army than those of his magnates.49 Second, despite embodying the public role of government, the king did not

44 Ganshof 1996, op cit, p.57. 45 Finer 1997, op cit, pp.910-912. 46 Ganshof 1996, op cit, p.156. 47 ibid, p.157. 48 Bloch 1961, op cit, points out (pp.109-112) that, fortunately for England, the Norman’s inherited a strong body of Anglo-Saxon law and avoided the Continental problem of personality of law, in which three people from different lands of origin living in the same location, were bound by their own different ‘national’ laws. 49 Finer 1997, op cit, p.887.

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govern most of the people directly, as governing was decentralised to tenants and subtenants through the feudal patron-client relationships. Finer calls this a cellular form of government or a polyarchy as no one had complete and final authority. Each lord possessed the right to command persons and exploit their holding rather than having sovereignty or ownership of land.50 The King’s servants robbed him of his possessions. In future, monarchs had to find servants who would remain trustworthy.

In conclusion, the king intended to operate his government from a distance by allocating portions of his kingdom to administrators. The system was rational in so far as the king could delegate power to obtain a greater return for less effort. Unfortunately, the vassals took advantage of their position and began serving their own interests rather than those of the beneficiary – the king. Vassals kept the king’s land and power in perpetuity as a perceived right. They established their own courts/governments. The magnates’ combined power was greater than the king’s and he became the first among equals.

2.1.3 The King’s Household Government – the Power of Patronage The failure of the feudal system required kings to find an alternative means to govern. They found a more effective method of governing by using patronage as a tool or technique to achieving the one thing the feudal system failed to provide – loyalty. It is hard to objectively determine whether a person will remain loyal, but giving the servants a vested interest in the success of the king can increase likelihood of loyalty. Kings found non-magnates to serve and made their rewards contingent on the king’s success.

Patronage of appointments and rewards allowed the king to obtain the two things he needed most in a bureaucrat: loyalty and expertise. Loyalty was the most important consideration. A highly skilled but disloyal official was a danger to the monarch. Someone who was skilled at acquiring power could destabilise the ability of the king or queen to rule. Expertise among loyal staff was more of a bonus than a primary necessity. Those who could perform competently the functions of government in the king’s interest would have been a rare find.

By the time of Henry II, English bureaucrats were the administrators of the king’s curia or court. It was a ‘household’ not a national government. The government’s income was the King’s personal income. The functioning of the ‘household’ administration included the costs of everything from the King’s attire to the invasion of France. Kings also found two sources of service that were far more reliable than the magnates.

50 ibid, pp.868-869.

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The first source was the Church. Almost all the actual bureaucrats in the royal household were members of the clergy. Their employment was unavoidable as clerics were the only consistent source of literacy in the medieval world. Government administration could not function without the skills of the secretaries, scribes and financiers who came almost exclusively from the Church.51 Clerics were more trustworthy than magnates. Kings were also superior Church officials in their own lands and appointed Bishops and other church officials; the monarch controlled the patronage of church appointments.52 Unlike the other magnates, Bishops could not pass their lands on to their family. Clergy were, at least theoretically, celibate and did not produce families which held the land of a Bishopric in perpetuity. Consequently, the king had effective control because property was still tied to the office of Bishop as it passed back to the king on the death of the incumbent. Thus, the king could rely on the loyalty of those people who aspired to the Bishoprics, as successful attainment of their goal required the good will and patronage of the monarch meant they had a vested interest in the king’s success. Not surprisingly, most Bishops were former bureaucrats, that is, they obtained their position by having been loyal and steadfast servants of the King. The Church thus gave the monarchs a reliable source of support which could not, or at least was less able to, undermine his power.

Outside the inner circle of clerics, the king used personal associates to conduct business. These men were not professional bureaucrats but local notables who had the ability to perform duties for the monarch.53 Thus if the king needed something done in Kent, he would find a loyal and influential local man who would be directed to carry out the task. Influence was necessary in a system without a comprehensive government infrastructure because only the influential had the ability to ‘get things done’.

The king attracted men to his service through the wealth and power associated with royal offices. Bureaucrats were free to perform their duties as they saw fit as long as the king received his income. Thus royal office was very lucrative and highly desirable. Royal favour produced mutual benefits for the individual and the King. Being appointed a royal agent enhanced a person’s already substantial influence. The increased personal influence made the person even more valuable to the king as he now had an even greater likelihood of succeeding in his task. Consequently, his services were obtained again, which further increased his influence, and so forth.54 These men were more reliable than magnates as their success relied on Royal favour. First, if they did not please the King, that is, serve his interest, they lost royal favour. As their personal power

51 ibid, p.891. 52 Ganshof 1996, op cit, p.55. Pope Gregory VII’s Dictatus Papae of 1075, attempted to take this power away from the Kings, but this failed in practice. 53 Harrox R 1989 Richard III: A Study in Service, Cambridge University Press, Cambridge. 54 Ibid.

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and wealth relied on the King’s favour, they could not afford to lose it. Second, Kings started rewarding service with money fiefs or fiefs de chambre in the form of annual payments, rather than alienating land from their demesne. As the vassal did not hold land, they had to stay in the King’s favour to ensure the continued payment of their rewards.55 If the king lost power, the servant lost everything, as the new king did not carry the personal debts of his predecessor.

Money was a central focus of a monarch’s power. His only income was from the revenues of his personal estates or demesne, fines and fees paid to the court and excise from ancient rights over traffic on land and sea, and collected by Justices and Sheriffs. This system was unreliable for two reasons. First, financial accuracy was not a hallmark of the age,56 so the reliability of the taxation system was always in doubt. Second, with so much of the wealth of England, that is the land, in the exclusive hands of the magnates, most English kings were insolvent due to low income and high expense. The kings of England were in a constant battle with their servants to ensure that the revenue due to the monarch was not diverted to the use of the official who collected it. Chrimes traces the history of the development of the household – and effectively national – bureaucracy of the English Kings. The nature of the constant reorganisation, review and removal of individuals from office would be very familiar to modern bureaucrats. These attempts were all made to ensure that the servants themselves met the king’s needs rather than their own advantage.57 Servants were, however, not expected to be independent, objective or take advantage of the powers inherent in their office.

In hindsight, the feudal system appears to be a corrupt form of government. But this conclusion is incorrect for two reasons. First, while it may appear that the king gave rewards without consideration of merit, the king’s criteria for merit were, first and foremost, loyalty and, a distant second, expertise. Loyalty cannot be measured through a formal interview process, so the king had to give preference to those he could already trust. Second, the king’s use of patronage was not a corruption of the system of government as the sole beneficiary of service allowed the servants to act in their own interests.

In summary, the breakdown of the long feudal experiment forced the king to make a government out of his own household. Two groups of people served the new government. The first was the clergy who brought their skills of literacy and could be

55 Bloch 1961, op cit, p.174; Bothwell J 1997 ‘’Until he Receive the Equivelant in Land and Rent’: the Use of Annuities as Endowment Patronage in the Reign of Edward III,’ Historical Research, vol.70, no.172, pp.146-168. 56 Bloch 1961, op cit, p.75. 57 Chrimes S B 1966, An Introduction to the Administrative History of Mediaeval England, Basil Blackwell, Oxford.

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rewarded with land without fear of their families taking and keeping the title. Second, the king relied on local notables whose advancement depended on their relationship with the royal household and therefore had a vested interest in its success. Despite their loyalty, the king instituted schemes to supervise his servants and ensure the greatest return of revenue.

2.1.4 Conclusion Feudalism began as an exercise in rationalism. The militarily strong came out of the period of anarchy as kings over vast estates. But their attempt to maximise their return resulted in the division of these estates among disloyal vassals. The failure of the system came about through the kings’ false assumption that vassals’ loyalty would override expressions of their rational self-interest. Rational vassals saw the opportunity for a greater return for no service and usurped the control of the land they held in trust under the feudal relationship. The English kings reinvented the system of government to reflect the rationality of both the beneficiary and servant. Rather than give inalienable rewards at the start of the relationship and expect a return, the kings created new contracts where rewards were deferred until loyalty and outcomes were demonstrated. The new arrangement made the servants’ success contingent on the success of the beneficiary. But this relationship did not give the kings back their original power over the land. The magnates continued to hold the land their ancestors had kept illegally from the royal family. Consequently, the kings had only stabilised the situation, not rectified it.

2.2 Formal Government The waning of the magnates’ power gave kings the opportunity to regain the power originally held under the first feudal contracts. But the arrangements put in place to stabilise government ultimately shifted power away from both the king and the magnates. This section will examine the rise of formal government, meaning a government of institutions rather than individuals, the development of constitutional monarchy, the reform of the civil service and Sir Charles Trevelyan’s reforms.

2.2.1 Rise of formal Government By the Tudor period England, for the first time since the Norman Conquest, recognised itself as a geographically defined nation under a prince. The magnates had lost much of their land, and therefore power, vying to win the crown during the War of the Roses. King Henry VII established a stable and essentially unchallenged dynasty. The middleclass had grown in wealth and influence sufficiently to allow the king to form a political alliance with these Commoners to the exclusion of the Nobles. The monarch ruled with the support of the rising local capitalist elite. Both the king and the elite had a vested interest in the success of the nation; the capitalists through their income based on the local

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economy and the king on the military power of the nation over other nations. But the nature of government had not changed and there was no recognition of national interests as being in any way distinct from the king’s interests.

Population growth and the beginnings of a stronger trade economy led to a larger group of administrators working the king’s household. Henry VIII’s minister, Sir Thomas Cromwell, turned the position of Principal Secretary from a role of personal assistant to the king into the effective head of the administration. Under Queen Elizabeth, the Principal Secretaries increased the power attached to the post and in turn fortified its role as chief agent of the monarch.58 Despite a population of millions, the Principal Secretary only had 1000 staff across the whole nation. The small number of officers controlling the nation meant that office holders had a great deal of power. This was made possible by the development of an elaborate system of spies and informers to ensure compliance.

As the power of the monarchs grew in relation to that of their magnates, court appointments also became more desirable. Many of the independent landed families saw great benefit in becoming the king’s Chamberlain or Chancellor. Although magnates retained their ancient feudal right to advise the king, court officials became the centre of power. A high official could both manage the daily affairs of the kingdom and have the lucrative power of patronage within their portfolio. The holder of an office had the ability to choose subordinates. The advantages of a court appointment were both political and pecuniary. People would pay large sums to obtain a government position, or would bribe openly an official to obtain their favour. The official remuneration for bureaucratic positions was far too small to support the office holder; it was expected that they would supplement their salary with gratuities.59

The monarch had other means of distributing patronage including allocating loans, handing out honours, authorising exclusive contracts such as monopolies, selling lucrative responsibilities such as wardships, and the leasing of crown lands. The monarch also scrutinised his servants to ensure that the patronage was distributed to secure his/her interests. The officials of the period were expected to indulge themselves so long as they advanced the interests of the monarch. The indulgence was the incentive to attract suitably ambitious and competent people to what could have been onerous positions.

In summary, this period saw the reduction in power of magnates and the return of national government to monarchs. The Tudor Kings and Queens continued the process

58 Smith A 1967 The Government of Elizabethan England, Edward Arnold Ltd, London, pp.43-48. 59 ibid, pp.54-55.

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of ensuring good service through rewards of patronage. In this period they had greater power than before as the fall of the magnates reduced competition for able bureaucrats, and the increased size of government made court positions even more desirable. But the monarchs’ advancement of the commons eventually would result in their complete loss of power. Like any good tragedy, the seeds of their demise were sown by the manner of their success.

2.2.2 Constitutional Monarchy In the 17th century, the Stuart Kings tried to assert the same absolute power as was adopted by cousins on the Continent. Unfortunately for the Stuarts, the Parliament, which was composed of wealthy nobles and gentry, had grown accustomed to shared power arrangements. Absolute power is viable only if everyone agrees that the king is the sole beneficiary of government services. But the English kings and queens had come to share the benefits. Parliamentarians not only participated in the government as law makers and decision makers, but also had an independent interest in the success of England separate to the service of the King. Thus the gentry saw themselves as beneficiaries. If their claim was upheld this would change the whole nature of government. The king would no longer be able to claim that the role of the executive was the pursuit of his own interests. He, and his ministers, had to share the benefits of society with others, albeit a small elite of the population. However, acknowledging this predicament would require the king to act in the interests of other beneficiaries. He would no longer have the freedom to pursue his goals in his own manner as he would have to account for his actions to the Parliament and those it represented. King Charles I took offence at such an idea and after a decade or two of autocracy, the Parliamentarians revolted. Charles lost the kingdom and his head.

The Civil War and the later Glorious Revolution to overthrow the Catholic James II resulted in a significant proportion of executive power shifting from the Palace to the Parliament. Smith says that before the Revolution, Charles II’s regular parliaments reduced the power of the court in favour of the parliament. It was becoming clear that if a person wanted power it was more important to become a leader in the House than seek preferment as a courtier. The destruction of Whitehall by fire in 1698 reinforced this development. Previously all Household and Parliamentary business was conducted in the same building. The rebuilt premises did not accommodate the court, thus ensuring that household matters only were dealt with in the Palace and Whitehall was used exclusively for parliament and administration.60

60 ibid, p.26-27.

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An accident of history broadened the separation. William and Mary did not produce an heir and the crown passed to another branch of the family. George I, the Elector of Hanover, was installed as king after the 1701 Act of Settlement. George could not speak English and his Hanoverian attendants conducted court affairs. Under the Act of Settlement these foreigners could not sit in parliament or hold political or government office. Consequently, court officials were left out of the political action, and fell further behind in the pursuit of power. By the time of George II very few parliamentarians also held offices at court.61 But this state of affairs also reflected an important change in the understanding of what it meant to be English.

Years of parliamentary strength and foreign Kings meant that the business of government had become the pursuit of the interests of the nation not just those of the Monarch. The property (land) franchise ensured that Parliamentarians were members of the aristocracy and landed gentry. They saw themselves as having a vested interest in the success of the nation and, consequently, were the only ones who could be trusted to pursue the national interest. Germans in England as the temporary staff of the king could not be trusted to serve the interests of the nation. Thus a period of competing values arose: the King’s interest versus those of Parliamentarians. Each needed powerful and talented supporters and they competed for them through patronage.

While the establishment of a form of constitutional monarchy after 1688 split some of the king’s revenue from his household, the “Crown” had not taken on a modern guise of the Constitutional Monarch acting on the advice of the Parliament. It was only in the 1780’s that State funding was separated from the personal expenses of the King, and the concepts of ministerial responsibility and a non-politicised civil service did not take hold until the 1830’s.62 Many people believed that the sovereign’s point of view should prevail in the interests of stable government, despite the constitutional constraints of the revolution of 1688.63 Personal power and wealth could come from two sources, the King’s favour or beneficial legislation by the Parliament. Both power brokers sought out the assistance of the talented men of England to serve their interests. Patronage became the weapon of ministers both in the King’s interest and their own. 64

As Foord explains: “Without exception the ministries of the eighteenth century employed court favours to maintain themselves in office, and practical politicians saw no way to ‘get

61 ibid, pp.27-28. 62 McMartin A 1983 Public Servants and Patronage: The Foundation and Rise of the New South Wales Public Service, 1786-1859, Sydney University Press, Sydney, pp.6-8. 63 Foord A 1947 ‘The Waning of ‘The Influence of the Crown’,’ The English Historical Review, vol.62, no.245, pp.484-507, at pp.484-485. 64 Smith 1967, op cit, p.30-31.

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the King’s business done’ in parliament without the use of influence.”65 The funds for these exercises came from the ‘civil list’, the crown’s hereditary revenues, a pension list from Ireland and government surplus from Scotland. As the king’s own monies they could be used to his own ends without accounting to the Parliament.66

The power of distributing government jobs remained effective during the late eighteenth century; holding a civil office was seen in an almost feudal character. Sir Norman Chichester provides this description of the Whitehall system in 1780:

It was well accepted that an office constituted a form of property, particularly the longer and more certain its tenure and the more pronounced the rights and pecuniary benefits attached to it. By 1780, though some offices were still granted for life, most were granted at pleasure, i.e. at the discretion of the grantor… Apart from the holders of ‘political’ offices close to the King, who had no expectation of remaining long in them, for most office-holders, appointment at pleasure meant in practice appointment for life.67

As has been noted above, the positions were received through patronage and the incumbent had the power to appoint subordinates. The desire for a family to retain an office’s revenues would have made retention of positions in virtual perpetuity part of the natural political order of the community.

The king also had a much stronger constitutional role than a 21st century monarch which allowed him some unique forms of patronage. For example, the king chose the prime minister from the ruling party; the other members of the party did not influence the decision.68 The prime minister, always a member of the House of Lords, would then choose the leader of the government in the Commons. This practice continued till members of parliament elected Lord Althorpe Whig leader in the Commons in 1830.69

The government also used patronage as a political tool. It retained three forms of influence including the distribution of government contracts, provision of government loans and the leasing of crown lands. As Members of Parliament could hold benefits or offices for profit from the crown, a combination of these influences and patronage would provide some security to the party in power. If the party needed a majority for a vote, the judicious allocation of profitable “jobs for the boys” could swing things their way. The senior secretary to Treasury, an MP, was Chief Whip and patronage secretary. His role included keeping the party in government and ensuring a majority in the Commons. As

65 Foord 1947, op cit, p.484. 66 ibid, pp.489-491. 67 Chester N 1981 The English Administrative System 1780-1870, Oxford University Press, p.18, quoted in Hennessy P 2001 Whitehall (2nd ed) Pimlico, London, p.27. 68 Aspinall A 1926 ‘English Party Organization in the Early Nineteenth Century,’ The English Historical Review, vol.41, no.163, pp.389-411, at p.389. 69 ibid, p.393.

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well as dealing with the press he managed the distribution of favours and benefits to build government support.70 While unable to control the press71 he did have the resources of the ‘party chest’, a fund provided by various sources, which could be used for “organised bribery”. When such expenditure finally was banned the whip had to rely on honours and patronage to secure support for the party. 72

However, these methods of patronage were brought to public light through accountability measures introduced from 1780 through to the 1830’s.73 The biggest influence on the civil service was the removal of the Crown’s control over appointments, the phasing out of sinecures and the banning of members of parliament from holding civil service positions.74 This reflected the growing power of the Parliament over the Crown. This growth followed an exponential curve, as each time a King’s means of patronage was removed the Parliament had even more relative power to bring about the loss of even more royal authority. In the terms of the current thesis, Parliament was determined to make the aristocracy and the non-aristocratic upper-class, the gentry, the sole beneficiaries of English bureaucracy.

In summary, under a constitutional monarchy the king had to share the benefits of government with Parliamentarians and the people who elected them. Charles I did not like this and caused a civil war which he lost. As a result he lost his head and Parliament assumed even more of the king’s power. Over time a series of accidents of history shifted even more administrative power to the Parliament. Eventually, the gentry came to see its interest in lying not with of the king but with the fate of the nation. The interests of government were no longer the personal interests of the monarch but the national interest. However, the kings retained some power through traditional control of patronage. The Court and Parliament battled for the support of talented administrators.

2.2.3 Civil Service Reform

The growth of power of the landed class changed the nature of government. During the medieval period kings and the magnates had individual governments to serve themselves. By the 18th century, the Parliament, represented both the noble and gentry classes. As agents Parliamentarians could no longer simply ensure their own benefits were met as their future success depended on the fulfilment of the expectations of those they represented. Thus the ‘public’ expected better quality general services from the

70 ibid, pp.396-397. 71 ibid, pp.404-405, who speculates as to whether the lack of control was because the press were incorruptible or their price was too high. 72 ibid, p.400. 73 Foord 1947, op cit, pp.493-497. 74 ibid, pp.497-501. This was also aided by changes to practices that made some positions personally profitable and thus desirable prizes. (p.503)

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government. This arrangement ended the validity of formality using patronage as a tool to secure loyalty.

A class of people cannot share the sort of direct benefits of power obtained through mechanisms like patronage. For example, twenty thousand people cannot share the benefits of having someone’s useless nephew being placed in a sinecure and taken off of the family expenditure. The public wanted the best service for their money, in other words, a meritocracy. But the government did not work this way, and consequently reform was needed.

By the time of the Reform Bill in 1832, the king had lost the ability to spend funds without accounting to the Parliament, and the ranks of the civil service had already been cleared of placemen and holders of sinecures from the king. Civil service reform continued over this period and led to the now famous Northcote-Trevelyan Report of 1854.

Sir Charles Trevelyan was under-secretary of Treasury, the department which operated the civil service.75 A Treasury Minute of 12 April 1853 established the commission which conducted the review and produced the report. The Commissioner was directed to examine how to both reduce the cost and increase the efficiency of the civil service. Downsian logic is evident as the government wanted to find a way to ensure the civil service produced the greatest productivity (efficiency) for the least cost.76

According to Hirst, the political opportunity for change occurred in 1855, with the change in government following the unnecessary loss of life in the Crimean War, caused in large part by incompetence in civil administration and military leadership. The government’s poor planning and execution of the campaign was criticised roundly. “In response to this disaster, a new reform movement quickly emerged with the aim of ridding the army and the civil service of aristocratic time-servers and bunglers and of opening both to men of merit.”77

It appears that the personality of Sir Charles Trevelyan was a major factor in securing the reform’s outcomes. He had already conducted reviews of Treasury, the Colonial Office

75 Northcote was a senior official who returned from sick-leave to assist in the development of the report and appears to have been very much the junior partner in the drafting of the Report. 76 Hennessy says that reform was pushed by the Board of Trade which, in today’s language, would be seen as a group of talented, innovative and expert civil servants producing outstanding outcomes. (Hennessy 2001, op cit, pp.30-31) 77 Hirst J B 1988 The Strange Birth of Colonial Democracy, Allen & Unwin, Sydney, p.52. Merit had been the cry, if not the practice, at Treasury long before the war. In an 1849 minute, Trevelyan had said that, in relation to roles above the purely clerical, “…it is right that a young man should feel, from his first entering the Office that his future advancement will entirely depend upon his own conduct.” *(Trevelyan 1849 extracted in Trevelyan, Hughes & O’Brien 1949, op cit, pp.57-58)

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and most senior positions in the civil service.78 According to Hart, Trevelyan was a workaholic and pushed others to emulate his habits. He was blunt in his criticism of other officers and thought “pleasure and ease were clearly suspect if not positively wicked.” He also prescribed books to be read, especially Smith’s Wealth of Nations, and built the contents of the department’s library, to instil wisdom among Treasury staff.79 Sir Charles had a tremendous sense of public duty and a not entirely unfounded belief in his own ability to solve any problem. Consequently, Trevelyan sought a civil service in his own image.

Trevelyan was also class conscious and paternalistic; he thought reform would boost the British “aristocratical institutions.” He believed that anyone could improve their lot through hard work, and logically the poor should not receive welfare but be encouraged to find solutions to their problems. As a consequence he opposed government support for the starving during the Irish potato famine; as such acts would expose the Irish to moral hazard. This suggests a tendency to pursue theory at the expense of practicality.

Sir Charles’ desires for hard work were not backed up by methodology. While he wanted greater efficiency, his solution was to obtain people with the right attitude who would put in the effort. It was efficiency through exhortations not through better management. He suggested in a letter that: “Most of the civil establishments are so much in excess that the mere fact of reducing them increases their efficiency by forcing people to work and substituting habits of activity for an idle, listless state of half employment.”80 Hart said Trevelyan himself was disorganised, lacked focus and was incapable of delegation; he was a perfect example of inefficiency.81 But of course he could not recognise his own flaws, and wanted a civil service of Trevelyan clones who worked hard and deserved high office. Such a bureaucracy was of no threat to him, the most senior bureaucrat, and only could improve his performance. It is no surprise that the greatest object of his ire was the system of preferment which saw the “lazy” receive positions through patronage. But his method to resolve the problem was preferment, another form of patronage.

Trevelyan is the author of the modern notion of a neutral public service and the end of patronage. The report he co-authored with Northcote was designed to create a professional civil service staffed with the brightest minds in the land. As Hennessy idealistically notes, the Report would lead to a new form of organisation: “At its heart lay the notion of a politically neutral civil service recruited on the basis of intellectual ability

78 Trevelyan C, Hughes E & O’Brien H 1949 ‘Sir Charles Trevelyan and Civil Service Reform, 1853- 5,’ The English Historical Review, no.64, no.250, pp.53-88, at p.53. 79 Hart J 1960 ‘Sir Charles Trevelyan at the Treasury,’ The English Historical Review, vol.75, no.294, pp.92-110, at pp.94-96. 80 Extracted in Hart 1960, ibid, pp.92-110, p.107. 81 Hart 1960, op cit.

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rather than political patronage – the idea of a lifetime career built around the profession of government.”82 The Report summaries the issue as follows: “By now it was clear that the administrative business of a great modern State, with power over and duties towards all classes… could not complacently be left to job-men, subject only to the indifferent and spasmodic supervision of Parliament.”83

Shannon noted the religious and evangelical British Treasurer, and later Prime Minister, Mr Gladstone, was swayed in favour of the idea of civil service reform by Northcote’s pitch of a “morality of merit.”84 Further, Shannon said Gladstone agreed with Northcote and Trevelyan’s proposition that the traditional view that the civil service served the interests of the Crown should be replaced with the concept of serving the broader ‘public interest’. Thus convinced, Gladstone intervened to ensure the Report recommended comprehensive introduction of the system, including in the very conservative Treasury Department. He also removed a cautionary recommendation which would have allowed Treasury and Parliament, the contemporary source of patronage, to have oversight of the appointments. Instead the power was given to individual agencies. Gladstone can also be given full credit for the reforms’ successful passage through Cabinet against the opposition of many colleagues.85

In conclusion, Parliament removed the last of the patronage powers from the Court. As the number of people able to vote increased with the addition of more and more classes of voters, a new ideology arose to reflect the growing number of beneficiaries. Government employees carried out a public trust and were serving the public interest. Logically, while performing their duties, they should subsume their own interests to the public interest. The implementation of this concept required a neutral and professional civil service. These ideals were settled in the Northcote-Trevelyan Report. Unfortunately, Trevelyan saw the solution in the employment of the right sort of person rather than the institution of a new management process. Consequently, the efficiency was brought about through the removal of feudal employment practices.

2.2.4 Trevelyan Reforms The reforms were not intended to be inclusive democratically. The class system of the period was not openly mentioned but was recognised clearly in the activities of the reformers. The qualifications necessary for acceptance and promotion were based on

82 Hennessy, P 2000 ‘Keynote Speech’, A Civil Service for Asia’s World City Conference, Hong Kong, p.3. 83 Northcote & Trevelyan 1853, Report on the Organisation of the Permanent Civil Service, extracted from Lack C 1961 Three Decades of Queensland Political History 1929-1960, Queensland Government Printer, Brisbane, p.758, fn #:2. 84 Shannon R 1982 Gladstone: Volume One 1809-1865, Methuen, London, p.268. 85 ibid, pp.280-282.

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character, skill and experience. The character was that of the gentleman. There was no publicly agreed upon definition of what constituted a gentleman. It was one of those concepts that everyone agreed they understood but few defined. Compton gives the following breakdown from a contemporary government report: …the report of the Clarendon Commission on the nine major public schools had alluded to the qualities of English gentlemen. These included ‘their capacity to govern others and control themselves, their aptitude for combining freedom with order, their love of healthy sports and exercise.’”86

The Northcote-Trevelyan Report listed the nature of persons who should be civil servants: … it is highly necessary that the conditions which are common to all the public establishments, such as the preliminary testimonials of character and bodily health to be required from candidates for public employment, the examination into their intellectual attainments, and the regulation of the promotions, should be carefully considered, so as to obtain full security for the public that none but qualified person will be appointed, and that they will afterwards have every practical inducement to the active discharge of their duties.87

Thus there were four characteristics: ability to govern, exercise self-control, exercise liberty while meeting obligations and maintain a healthy sporting lifestyle. The reformers required someone who was trained both in character and knowledge as a leader, was a good member of society, and was physically fit. Someone of a lower order would fail resoundingly these criteria. They were brought up to follow and not lead. They had no expectations of social responsibility and their standard of living, and therefore health, was much poorer than that of their gentlemanly neighbours. Importantly a low class person may have been lucky enough to receive a good education and exceptional health, but it was highly unlikely without the exclusive upbringing of the gentry, that his character would meet the benchmark.

Character was seen as making good government possible. Compton noted that the British saw bureaucratic efficiency as a consequence of good character, rather than simply a separate characteristic that could be acquired through training and good management.88 For example, in the Indian Civil Service officials of good character were perceived as showing less racism than those of lower orders, better able to mix with society, and have a generally higher moral tone.89

It was also important that these officers be permanent and independent of, yet responsible to, their Ministers.

86 Compton J 1968 ‘Open Competition and the Indian Civil Service, 1854-1876,’ The English Historical Review, vol.83, no.327, pp.265-284, p.269. 87 Northcote & Trevelyan 1853, Report on the Organisation of the Permanent Civil Service, extracted from http://www.civilservant.org.uk/northcotetrevelyan.pdf 88 Compton 1968, op cit, p.269. 89 Ibid.

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It may safely be asserted that, as matters now stand, the Government of the country could not be carried on without the aid of an efficient body of permanent officers, occupying a position duly subordinate to that the of the Ministers who are directly responsible to the Crown and to Parliament, yet possessing sufficient independence, character, ability, and experience to be able to advise, assist, and, to some extent, influence, those who are from time to time set over them.90

All this contributed to good government; the qualities of the people who governed would be reflected in the quality of government itself. Thus a man’s quality was more important than his bureaucratic expertise.91

Hennessy explained that Gladstone and Trevelyan saw the newly reformed Oxford and Cambridge Universities as the source of the liberally educated, young men who would fill the new meritocracy. The elite would run the government, but it would be a different and better group of people than those who filled the ranks of patronage-based officialdom.92 It was no longer sufficient to be from the landed gentry; now one had to be an educated and capable member of the gentry. The Report split the civil service into two grades, higher ‘intellectual’ positions targeted at the educated elite and the ‘routine’ clerical grades for the masses. The former would be a progression and continuation of the collegiate Ox-bridge brotherhood.93 One could interpret this step as the elite excluding the less capable, uneducated members from office.94

In summary, it was clear that at this time public servants were required to be innovative, efficient, of good character, skilled and experienced. They were also chosen and promoted on merit, thus eliminating any reliance upon relationships to override the need for ability. However, merit only applied to the professional class and not the “supplementary clerks”, who served at the base of the bureaucratic pyramid. These recommendations would not seem out of place at a public administration conference in the 21st century. However, Northcote and Trevelyan were not writing for a modern audience.

This was a government of trust, but indirect trust. The beneficiaries – the gentry – will only trust gentry to provide their services. Only fellow beneficiaries with the same vested interest in success can be allowed to control the means to that success. However, if the gentry want the best service for their taxes, they have to ensure that the most meritorious men hold office. Merit in this case was perceived as a person with a good education and

90 Northcote & Trevelyan 1853, op cit. 91 Compton 1968, op cit, p.273. 92 Hennessy 2001, op cit, pp.31-34. 93 ibid, pp.40-41. 94 Compton 1968, p.269.

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character sufficient to produce the right results and a guarantee of loyalty through the mechanism of servants also being beneficiaries.

2.2.5 Summary After the fall in power of the magnates the Tudor monarchs took political power. They retained their technique of ensuring loyalty through patronage. But servants challenged the power of the monarchs. The gentry obtained power through Parliament and demanded a share of the benefits of government. The victory of Parliament in the English Civil War and the subsequent Glorious Revolution secured the dominance of Parliament over the Court. Thus the mechanism the kings used to ensure loyalty became the tool for their undoing. The gentry’s vested interest in the kings success transformed into an interest in England’s success. By this time, the needs of the king became an impediment to meeting the best interests of the gentry.

The kings had not lost all their power and used patronage to maintain their political power as against Parliament. But by the early 19th century, Parliament was able to arrogate to itself all effective residual power of the monarch. The bureaucracy created a neutral and professional civil service designed to serve the public interest.

The new civil servants had to be innovative, efficient, of good character, skilled and experienced men, who were chosen and promoted on merit. But merit included a criterion of background; only a gentleman could enter the non-clerical so-called political positions in the service. The new regime was government of gentlemen, by gentlemen, for gentlemen. However, the power of the party took over from the power of the

2.3 Conclusion The Westminster Government commenced in the land of the Merovingian Franks. These monarchs experimented with a system that would provide loyal, competent servants to implement the king’s will. The experiment failed due to the supremacy of self-interest over loyalty. In effect, the king sought the most rational method of achieving his goals, but expected his vassals to act irrationally. In an age not noted for belief in reason, this may have seemed appropriate.

The English monarchs found a more reliable group of servants from the Church and the middle classes and gentry. They secured loyalty by tying the interests of the servants to the success of the king. The servants relied on the king’s patronage for success, so if the king failed they lost their patronage. This system served the interest of the Royal Household for centuries until the magnates lost feudal power and sought alternate political power in the royal courts. Through patronage they secured power, but as

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servants of the Crown, not exclusively in their own interest. These servants were willing to suspend their own interests in the short term because of the rewards the king could provide in the long term. Thus service was not irrational.

The transfer of power from the Palace to Parliament led to a re-characterisation of government away from the personal interest of the monarch to the interests of the people with a vested interest in Britain. These were the settled land owners whose futures were tied to national success. Loyalty was important but it had to be to the community of interests, not to an individual or group. It was imperative that the civil service be objective, impartial and fair, to ensure everyone’s interests were met. The practice shows the governments were successful in reducing the patronage of the Crown, but they absolved many of the patronage opportunities into their own control. Power and access to the patronage purse rested with the political parties rather than the Crown.

The new civil servants would be the voters, that is, people with a vested interest in the nation. They would all be of good character, meaning healthy, having leadership potential and self control and be dutiful, skilled, experienced, healthy and intellectual. Their government should serve their interests. However, the growth of modern, disciplined political parties would now begin the exercise of obtaining public support in preference to providing for the public interest.

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Chapter 3 Colonial Era in Queensland

By the mid-19th century, Britain and its Australian colonies were representative democracies, allowing the Downsian model to be tested against accountability systems. If parties in power avoid implementing effective ethical regimes that reduce the possibility of achieving re-election, then the Queensland colonial government of this period would attempt to appear accountable in order to appease voters’ concern, while in reality maintaining a tight control over information about corruption, negligence and maladministration.

This chapter covers the period from the creation of the Queensland Colony until Federation. The period is dealt with separately for two reasons. First, during most of the period the qualifications required to vote expanded from an exclusive property franchise to full adult suffrage. Since rational politicians only are concerned with re-election, it is logical to assume that they only will try to please those who can vote. If this is true, then Queensland governments would give preferential employment to the enfranchised against the needs of the un-enfranchised, contrary to merit. This hypothesis can be tested by determining: 1. How did the government define merit?; 2. Did the criteria of merit assist re-election by reflecting voters’ values? If merit did accurately reflect the values of voters as opposed to non-voters then it is reasonable to conclude that governments were willing to sacrifice the public interest to improve their chance of re-election.

As explained in the Introduction, this thesis will examine whether the government understood what they were implementing, whether hypocritical actions undermined the policy, and whether it ensured that public servants understood the legislation, and was being implemented and carried out in accordance with the spirit of the Act.

However, during the colonial period, accountability mechanisms did not extend beyond parliamentary scrutiny and the operations of the Auditor-General. In the absence of other watchdog agencies, accountability within the public service was controlled through legislation establishing and outlining the structure of public administration in Queensland. The primary object of this legislation was the creation of an efficient public sector working in the public interest. This goal was to be met by the employment of staff through merit and the avoidance of patronage. In this chapter, there is no need to determine whether the legislators understood what they were implementing, since the theme of the

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legislation remained unchanged throughout the period and no radical or complex initiatives were introduced.

However, it is necessary to determine whether the legislation was a mere sham or intended to operate effectively. Thus this chapter will examine whether merit applied to both employment and promotion; whether the party in power could subvert the merit process; and public servants understood the legislation, and whether the legislation was implemented and carried out in accordance with its spirit.

The Chapter will be broken into three sections: 1) the first colonial administration; 2) The Civil Service Act of 1863; 3) The Civil Service Act of 1889; and 4) The Public Service Act of 1896.

3.1 The Queensland Colony The first European government in the Queensland region began in 1824 with the establishment of a penal settlement at Redcliffe, in Moreton Bay.95 Moreton Bay was part of New South Wales and functioned under its inherited English Law. Also the government rather than private proprietors or joint stock companies operated the Moreton Bay settlement.96

By 1852, when New South Wales was self-governing, the British civil service had abolished pre-Reform Act practices such as buying and selling public office, granting of royal sinecures and nominal offices whose holders hired deputies, at a fraction of the income attaching to the position, to perform all their official functions. However, patronage still controlled appointments to the New South Wales civil service.97 As Eddy outlined : Much damage was caused by the absence of a single, impartial, professional source from which nominations to Colonial appointments might flow and by which a vigilant scrutiny might be maintained of subsequent performance. It was reasonable for men to be appointed from England, particularly in the absence of respectable and large communities in the colonies. But the haphazard patronage which frequently characterized Colonial Office appointments seriously hampered colonial governors, who learnt only gradually to have the confidence to suspend and dismiss men highly recommend from home, and to insist on supporting their own nominees.98

After the closure of the Moreton Bay penal colony in 1839, the same year that the British government ended transportation of convicts to New South Wales, surveys of land were

95 The settlement was soon shifted to a better location on the Brisbane River. 96 McMartin 1983, op cit, p.4. 97 McMartin A 1987 ‘Patronage, merit, and morality,’ in Nethercote J & Eddy J (eds.) From Colony to Coloniser: Studies in Australian Administrative History, Hale & Iremonger, Sydney.p.57. 98 Eddy J 1969 Britain and the Australian Colonies 1818-1831: The Technique of Government, Clarendon Press, Oxford, p.196.

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conducted. The Moreton region was opened to free settlers in 1842. Queensland became a separate colony in 1859.99 It was the only colony which commenced with its own parliament instead of first spending time as a Crown Colony,100 and it inherited secret ballot election from its parent colony, New South Wales, a reform that the United Kingdom would not introduce till over a decade later.101

Queensland civil servants did not serve the British government but the people of the colony, or nation, as it was often referred to in Parliamentary Debates. The parochial flavour of debate is apparent in Hansard; Queensland politicians were concerned solely with the advancement of the local community. Consequently, the civil service had to employ those who would have an interest in the success of the colony.

British reformers’ ideals of a standardised and central process did not fit well with the geographic isolation of many officials and the many independent government boards and authorities.102 In many places individuals not agencies carried on the government. For example, Gold Field Commissioners performed almost all the roles of government in the remote digging fields they administered.103

The Governor, George Ferguson Bowen, set up the interim arrangements for a civil service in the colony in an Executive Council Minute of 23 January 1860.104

99 Order in Council issued under the New South Wales Constitution Act 1855, and subsequent Letters Patent on 6 June, 1859. 100 Bowen, Sir George F 1860 Despatch Sent by Sir George Ferguson Bowen, Then Governor of Queensland, to the Duke of Newcastle, then Secretary of State for the Colonies, para.2, reproduced in Fraser D 1959 Public Service Commissioner Queensland: Thirty-Eighth Annual Report Being the Report for the Year Ended 30th June 1959, pp.61-64, in which he notes that the people of Queensland were already used to “parliamentary” government as part of the colony of NSW, thus it could not be removed from them. See also, Cohen, K 1995 ‘Public Service Boards 1859-1920,’ in Cohen K & Wiltshire K (eds.) People, Places and Policies: Aspects of Queensland Government Administration 1859-1920, University of Queensland Press, Brisbane, pp.96-115, at p.97. 101 Sturgess G 1990 ‘Corruption – The Evolution of an Idea 1788-1988,’ in Prasser S, Wear R & Nethercote J (eds.) Corruption and Reform: The Fitzgerald Vision, University of Queensland Press, Brisbane, pp.3-24, op cit, pp.9-10. While the first elected government was established in 1860, it was not until 1867 that the Constitution Act created the formal structure reflecting the traditional separation of powers and a bicameral legislature. 102 Cohen 1995, op cit, p.96. 103 Davies 1998, op cit. 104 The senior staff appointed were uniformly young: Governor Bowen was 38, Herbert, the Colonial Secretary, 28, and the Under Colonial Secretary, Moriarty, was 29. (Maher J 1961 ‘Abram Orpen Moriarty – Colonial Administrator,’ Royal Historical Society of Queensland Journal, vol.VI, no.3, pp.540-556, at p.541.) But this bias towards youth may not have been anything to do with patronage as much as the physical trials of governing in a new colony. The duties of service and the lifestyle were physical as well as intellectual. Bowen later recommended that the British government only send Governors who could ride and shoot (p.553). But youth also meant inexperience and Bowen had to train his Executive Council members in the ways of government.

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3.1.1 Nature of Merit Bowen tried to give full application to the Northcote-Trevelyan recommendations. He included a system of examination requiring skills in handwriting, mathematics, geography, history and written composition, with optional tests in Greek, Latin and science. The Minute also required applicants to be between the ages of 16 and 25, and be medically and morally sound; the latter requiring a certificate from a legally recognized Minister of Religion. Civil servants also had to be committed to Queensland. Bowen’s “inviolable rule, [was] to appoint to public employment, only persons possessing a claim on this Colony, either from long residence within its limits, or for services directly rendered to it, or to the Colony of New South Wales, before the recent separation.”105 In summary Bowen’s values for public officials included persons who were graduates of a liberal education, medically fit, morally sound, faithful and diligent.

Because of these requirements employees were chosen from the colonial elite. It is more likely that the criteria were designed to choose gentlemen than that there was a coincidence that gentlemen were best able to meet the criteria. As Davies explained, at this time the “only qualification needed to gain an appointment to the colonial service was to be a gentleman in the embryonic Queensland establishment.”106 A traditional English gentleman was a person who led a gentle life, that is, they were sufficiently wealthy that they did not need to work.107 Such men were rare in the colonies consequently the colonies developed a new definition of gentleman.108 An Australian gentleman did not have to be of good birth as long as they had, or made, money, and did not deal directly with the public in business.109 While they were not strictly gentlemen in the traditional sense, they were type of people that Bowen wanted to appoint. As Shaw explained: Bowen’s English patron, Bulwer Lytton, once told him of the strong sympathy Australians had ‘with the ideals of a gentleman’. ‘Sustain it’, Lytton advised the new governor. Thereafter, Bowen sought the company of colonists with something of Athens in their head and a little of Sparta in the blood, that is, settlers who combined intellectual with practical skills. To his delight Bowen

105 Bowen 1860, extracted in Fraser D 1963 ‘Early Public Service in Queensland’ Royal Historical Society of Queensland Journal, vol.VII, no.1, pp.48-71, p.70. He goes on to say: “My own relatives and private friends come under none of these categories, and are, therefore, necessarily excluded from my consideration.” 106 Davies G 1998 ‘The Gold Field Commissioner on the Colonial Queensland Frontier, 1870-1875,’ The Electronic Journal of Australian and New Zealand History, www.jcu.edu.au/aff/history/articles/davies.htm, p.3. 107 Some men of gentle birth came to the colonies to try and emulate the plantation societies of the Americas and establish and gentle lifestyle. But the modern economy had already made the old plantation system unprofitable. (Bolton G 1968, ‘The Idea of Colonial Gentry,’ Historical Studies, vol.13, no.51, pp.307-328) 108 Wentworth, a New South Wales politician, had suggested that the colonies develop their own aristocracy to allow the maintenance of the traditional English balance between the Crown, the aristocracy and the commons. This could then form the foundation of an Australian version of the British constitution. But, due to the egalitarian culture of the colonists, his idea received more local ridicule than serious debate. 109 Hirst J 2004, ‘The Distinctiveness of Australian Democracy,’ Senate Occasional Paper, Australian Parliament, Canberra, p.8.

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found Queensland well endowed with such men. ‘In no country except in England and in Australia could be collected such an assemblage of Gentlemen’, he commented after his first country tour. Bowen wanted these gentlemen to rule in parliament. Most were pastoralists.110

The class of gentlemen did not include women, the indigenous or foreigners.

In summary, founding Queensland Governor Bowen wanted to implement the Northcote- Trevelyan reforms in Queensland, but he did not have the gentry necessary to bring these reforms about. Consequently, he had to adopt an antipodean definition of gentleman.

3.1.2 Voters Values Residents of the colonies inherited political rights from England, including the ability to both vote and participate in Parliament. But not all residents shared the same rights. Male colonists had no local political rights until the creation of a colonial legislature. Effective full male suffrage was established in New South Wales in two ways. First, it was established informally through a deception of the British Parliament, involving variations in property qualifications.111 Second, official full manhood suffrage was granted in 1858. The wealthy thought that giving their un-propertied servants the vote would provide the wealth with more electoral support.112 Women had no voting rights in New South Wales until the twentieth century.

In Queensland, only gentlemen could vote. Bowen had ensured that Queensland did not inherit the full male suffrage in operation in New South Wales. Bowen, who was biased towards the gentry, joined forces with the NSW Chief Justice, Sir Alfred Stephens, who opposed universal manhood suffrage, and took advantage of a quirk in the Imperial Order in Council establishing the colony to exclude the laws of suffrage. The Colonial Office confirmed the policy after Bowen outlined what he saw as the comparatively stable government that would flow from a un-egalitarian voting system.113 Shaw said Bowen also opposed full suffrage out of a desire for development through large landholdings

110 Shaw G 1980 ‘‘Filched from us…’; The Loss of Universal Manhood Suffrage in Queensland 1859-1863’, Australian Journal of Politics and History, vol.xxvi, pp.372-402, at p.374. 111 Hirst 1988, op cit, pp.16-29. The gold rush forced up property prices which subsequently caused ‘bracket creep’ resulting in 55% of adult males meeting the property qualifications. At the time enfranchisement was based on the rent paid on a residence. The British were told that the rents in Australia were lower thus the margin for enfranchise had to be reduced to properly reflect the situation. In fact Australian rents were higher and the lower cut off effectively meant every household had a vote, thus in effect every male had a vote. 112 Hirst J 2002 Australia’s Democracy: a short history, Allen & Unwin, Sydney, pp.40-41. 113 In 1861, following machinations by Bowen, the British Parliament amended the NSW legislation to validate the Queensland Order in Council, which in turn ensured the loss of universal manhood suffrage. (Shaw 1980, op cit, p.379)

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rather than small scale farming, and because he thought the 20 percent of the colonial adult male population who were illiterate were unworthy of the vote.114

In 1860, the Queensland franchise only extended to those with property worth ₤10 per annum in rent, or men who received the equivalent of a ₤100 a year salary for six months. Most Queensland public officials would have met the salary qualification. It was unlikely that the laws were designed to benefit the landholders alone, as the property requirements are quite low. It was more likely that the legislation was enacted to ensure power stayed with those perceived as having a vested interest in the good government of the nation; a financial interest in land or wages and also by a demonstration of time devoted to the colony.

In 1872, legislation granted full male suffrage but exempted Pacific Islanders and the Chinese from voting. Women had never been given the vote and the Married Women’s Property Act 1890 further excluded them. The Act prevented married women from owning property, and therefore, in combination with restricted employment opportunities, effectively excluded them from meeting the suffrage requirements. They were not given the vote until 1905, nor allowed to be Members of the Legislative Assembly till 1915.115 Initially, indigenous males were able to vote in the unlikely event they met the property requirements. The Elections Act of 1885, s.6, removed the political right for all ‘aboriginal natives’ of Australia, India, China, or the South Sea Islands. ‘Half-castes’ lost the vote in 1930. The Elections Act Amendment Act 1965, ss.3, 4 and 5, removed these provisions. Thus only those who could vote could be employed in the colonial service and, as a corollary, working in the service would ensure you could vote.

Bowen restricted the vote to the male gentry. He appears to have be acting irrationally, as he upset a large proportion of the population who lost the vote and probably did not qualify for employment in the civil service. However, Bowen was reflecting the interests of his class and not acting as a public representative. Being a Colonial Office appointed civil servant, he was not vulnerable to dismissal at an election and did not need to please the voters. However, an elected government who intended to meet the demands of the voters operated the system.

3.1.3 Employment and Promotion Bowen implemented the British system of competitive examination stating: “This system has been found not only calculated to secure for the public service men of good character, sound information ability and efficiency but also to apply a powerful stimulus to

114 Shaw 1980, op cit. 115 S. 39, Elections Act 1915.

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scholastic institutions, and to public education generally.” Unlike Britain, in Queensland there was no distinction between intellectual and routine clerical positions: all public servants commenced in the service at the entry level.116 Promotion was based on whether the clerk “has been faithful and diligent in the discharge of his duties…” Thus, at least in theory, a person could not rely on being a time-server expect to be promoted. It is likely that a meritorious promotions system would likewise be supported, since only people who met the entry requirements could be working within the system, and, these same requirements reflected voters’ values.

In the end, regardless of the Governor’s aspirations, the quality of employees was poor. Inaugural Colonial Secretary (Premier) Robert Herbert lamented in a letter home: “I am sadly troubled by the incompetency of subordinate officials. There are few clerks in the service who have either brains or steadiness, and if anything, even in ordinary matters of detail, is trusted to them, it is infallibly blundered.”117 How did this occur under the Governor’s high entry standards? In a distant colony all forms of expertise were in short supply. Queensland simply did not have access to the graduates envisaged under the Order in Council.118 All the classical liberal subjects Bowen required were taught in the colonies, but only in elementary education.119 Consequently, Bowen was unable to find sufficient people with the skills necessary to perform the roles in the bureaucracy regardless of their class origins.

3.1.4 Subversion Bowen intended that civil servants would be neutral politically. As well as excluding Clerks of Petty Sessions and Police Magistrates from the vote to ensure their impartiality, Bowen proclaimed that he preferred public officials to avoid political agitation. The Government having observed with regret, that several members of the permanent Civil Service in this Colony have taken part in political agitations, and have signed memorials in favour of, or against, other public officers; His Excellency the Governor, with the advice of the Executive Council, has determined to visit with severe censure any paid servant of the Crown in Queensland who may henceforward transgress in a similar manner. Among the

116 The Colonial Secretary, Herbert, did not see the need for a classical education in Queensland. Even though he thought such an education was worthwhile, he did not believe it would be taken up by the middle classes which predominated in the colony. (Herbert speech in Legislative Assembly, 17 July 1860, on Grammar Schools Bill, as reported in the North Australian on 20 July 1860, extracted in Knox B 1977 The Queensland Years of Robert Herbert: Premier, University of Queensland Press, Brisbane, p.186.) 117 Letter to his sister Janey dated 17 July 1864, extracted in Knox 1977, op cit, p.93. 118 Even in England the British found that their expectations of having an Oxbridge civil service floundered as the graduates of these august institutions did not flock to the government positions as expected. (Compton 1968, op cit, pp.277-284) 119 Steele J 1975 Brisbane Town in Convict Days 1824-1842, University of Queensland Press, Brisbane, pp.89-90. McMartin (1983, op cit, p.61) points out that in the colonies school leavers filled the ranks intended for Oxbridge graduates in England. Hirst notes that the NSW Legislative Council voted to create Sydney University in order to locally produce the type of graduates needed for high office. (Hirst 1988, op cit, p.9)

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first duties of Public Servants are strict impartiality and invariable courtesy to the humblest member of the public.120

Despite these sentiments and the provisions of the Order in Council, Cohen claims that in practice examinations were rarely conducted, and ministers, under secretaries and, ironically, the Governor made most appointments down to the lowest levels.121 She does not provide evidence to support these assertions but Queensland Parliamentary Debates mention that an examination system was not in place for the position of Police Magistrate.122

It is also possible that the Governor was not sincere in his rhetoric. Joyce claimed that Governor Bowen, and his private secretary, Robert Herbert, were appointed through the patronage of Gladstone. Joyce said “[Bowen] had campaigned in favour of Gladstone in the 1852 elections, further impressing the liberal leader, whose patronage was the most significant factor in his appointment as Governor of Queensland.”123 No sources are provided for this statement. Joyce’s accusation seems unlikely because at the time Gladstone held a low ranking position as Commissioner to the Ionian Islands. He knew Bowen, who was Chief Secretary of the Ionian Islands. While the Colonial Office may have asked Gladstone’s opinion of Bowen it is improbable that he wielded sufficient power to guarantee the appointment. Conversely, the position was far from prestigious and a minor gubernatorial appointment may have been all his influence could secure. Joyce implies that Bowen did not merit the post. However, in 1859, the meritorious appointee was not the applicant with the best technical skills, but merely a capable person of good character. In hindsight, Bowen carried on his role competently. He was later rewarded with the Governorship of the more prestigious colony of New Zealand.

The 19th century civil service jobs appear to have been filled through informal consultation and appointees’ credentials and suitability checked through the same means. Herbert had been Gladstone’s private secretary and was seeking a colonial posting to boost his career prospects.124 He later became private secretary to Bowen and first Colonial-Secretary of Queensland. Joyce implies that Herbert got the private secretary-ship because he had formerly held the same post for Gladstone.125 However, it

120 Queensland Government Gazette, vol.1, no.43, 28 July 1860, p.248, extracted in Scott J, Laurie R, Stevens B & Weller P 2001 The Engine Room of Government: The Queensland Premier’s Department 1859-2001, University of Queensland Press, Brisbane, pp.24-25. 121 Cohen K 1995 ‘Public Service Boards 1859-1920,’ in Cohen K & Wiltshire K (eds.) People, Places and Policies: Aspects of Queensland Government Administration 1859-1920, University of Queensland Press, Brisbane, pp.96-115, p.98. 122 Queensland Parliamentary Debates (hereafter QPD) 1864, p.128. 123 Joyce R B 1978, ‘George Ferguson Bowen and Robert George Wyndham Herbert: The Imported Openers,’ in Murphy D J & Joyce R B (eds.) Queensland Political Portraits 1859-1952, University of Queensland Press, Brisbane, pp.10-43, at p.11. 124 Herbert later became Permanent Under-Secretary of the Colonial Office. 125 Joyce 1978, op cit, p.11.

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is unlikely that there was any misconduct associated with the appointment. Herbert only had been Gladstone’s private secretary for one month, and Gladstone did not put Herbert’s name forward, even though he definitely supported his suitability.126 This process also appears to be an example of contemporary merit selection rather than patronage.127 An informal process was used in the selection of the Under Colonial Secretary, Abram Moriarty. Bowen appointed Moriarty on the recommendation of the New South Wales Governor, Denison, after the new Governor asked his colleague whom he could recommend for the post. This was not a case of ‘dumping’ a poor performer on an unsuspecting new employer. Moriarty was an outstanding performer. He had already served in senior posts and briefly had been an MLA in NSW. He was private secretary to Bowen after Herbert and then became the first Clerk of Executive Council and Under Colonial Secretary.128

Given Bowen’s opposition to patronage, it seems strange that he approved his Colonial Secretary’s cronyistic appointments. Herbert used his power to make appointments to many of the public offices in the colony as a means of supporting his investments, including his partnership in a sheep farm, and to promote his friends.129 Herbert made his business partner, George Dalrymple, ‘Officer in Charge’ at Port Denison, the location of their joint venture with the Scott brothers.130 Dalrymple was also made Commissioner for Crown Lands in the Kennedy region, later becoming the Member of the Legislative Assembly (MLA) for that region and served as Acting Colonial Secretary in his friend’s absence. Second, Algernon Lempriere, Herbert’s cousin, was appointed private sectary to Governor Bowen and was later appointed a magistrate. But the greatest benefits fell on Herbert’s companion and housemate, John Bramston.131 At different stages of their stay in the colony Bramston was Clerk of Executive Council, Attorney-General and President of the Legislative Council. To his credit Bramston was a reluctant recipient of Herbert’s enthusiastic support and did not stay in any of these positions very long.132

Hirst said patronage was accepted practice in the colonies. He explained that a Member of Parliament would know the few hundred qualified voters in their electorate personally.

126 Knox 1977, op cit, pp.8-10. 127 This is not to say that patronage was unknown. For example, Herbert’s cousin Carnarvon, the then Secretary of State for Colonies, tried to appoint him to a position as his deputy in the department. (Knox 1977, op cit, p.38) 128 Maher 1961, op cit, pp.544-547 in which he quotes Bowen’s views on Moriarty in his February 1860 dispatch to the Secretary of State for the Colonies. But the best recommendations may be flawed as Moriarty was later accused of misappropriation while working in the NSW administration. It is not clear that he was ever found guilty of such an offence. (Scott et al 2001, op cit, p.19) 129 Knox 1977, op cit, pp.17-18. 130 Ibid, and Scott et al 2001, op cit, p.25. 131 The suburb of Herston was the location of their property in Brisbane. The name is a combination of the surnames Her-bert and Bram-ston. 132 Knox 1977, op cit, p.127.

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Political necessity required that he please and reward these voters for the success he obtained at the election. If a member was to be re-elected, he had to get roads or railways built, get a subsidy for the local hall or show society, help the selectors get the title to their land even if they hadn’t met all the conditions, and find jobs in the public service for the friends and relations of his supporters. Members today still have to look after the electorate, but at that time, as the MP was not a member of a party, he was judged almost solely on what he could do for the electorate… It was very direct democracy. Members coming from small electorates could trade there support with ministers who were themselves in charge of the detail of administration. Ministers could let people out of jail early, set the freight rates on a railway, give a teacher a promotion or a transfer – things that boards and bureaucrats would control today.133

Thus civil service jobs could be, and sometimes were, a means of rewarding one’s constituents for support.134 McMartin notes that the British public accepted patronage but not its abuse.135 In the early days of the NSW colony the Secretary of State’s supervision by of appointments restrained the exercise of local patronage. But the commencement of local parliaments and responsible government created the opportunity for NSW ministers to administer personally the appointments to their own departments.136 While applying the same patronage to their constituents, Queensland ministers also had free reign in relation to disciplining staff as no provisions on this topic were provided in the Order in Council. They could, therefore, use discipline as a means of punishing staff who fell out of favour.

In conclusion, Bowen’s intentions for a merit-based civil service were not given effect. The Governor did not stop the open practice of patronage to friends and constituents. While the legislative foundations of the civil service were sound, its administrating ministers actively sought both their own self-interest and the gratification of the electorate. The problem with this scenario was that the public and the Opposition did not intervene to prevent ministers acting in this manner. The hypothesis of this thesis states that a rational government must present a plausible façade of compliance to secure votes. But two factors in colonial Queensland made this unnecessary. First, with limited enfranchisement and small population, the electorate was very small. The four hundred or so jobs available in the service ensured that every voter had a friend or relative who directly benefited from patronage. In effect, sharing the spoils of government employment placated all the constituents. Second, the Opposition members were complicit equally in

133 Hirst 2002, op cit, pp.69-70. 134 Cohen 1995, op cit, pp.102-103. 135 McMartin 1987, op cit., pp.52-63, for a discussion of contemporary arguments presented for and against patronage. See also Cohen 1995, op cit, pp.101-103. Even a staunch reformer like Edmund Burke only opposed it when an appointment was a cover for a bribe, and had no problem with giving a position to an ally in return for loyalty or assistance. (Sturgess 1990, op cit, p.6) 136 McMartin 1987, op cit, pp.59-60. He also points out that even at its worst extent it never reached the levels of the US Spoils System.

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the practice of patronage and therefore were neither in a position to take a moral high ground, nor of a mind to end the system. Consequently, the voters and their representatives exploited the system.

3.1.5 Conclusion Bowen set out to create a Queensland bureaucracy that emulated the best qualities of the British civil service. He even adopted a new set of criteria to describe the gentry to have a class of persons to fill the posts. In further pursuit of his goal, Bowen ensured that only the male gentry could vote, and, therefore, be beneficiaries. But like the British public, he only wanted those men who had a vested interest in the future of the colony to be beneficiaries, and set up a system to represent and pursue their interests. Unfortunately, the remote colony could not provide enough qualified applicants to fill the bureaucracy with skilled clerks.

Also Bowen’s system ignored the rationality of the local politicians. Ministers and Parliamentarians alike used patronage to further their own interests and those of their friends. The continued success of this unethical behaviour seems to have been based on the small number of voters and their ability to all share in the advantages that patronage could bring.

3.2 The Civil Service Act of 1863 The new Queensland Parliament passed The Civil Service Act of 1863, which made significant changes to Bowen’s Executive Council Minute. In the two years after the Executive Council Minute voters’ values had not changed, nor had the qualifications for employment. The passage of this Act allowed the representatives to establish a system to serve their own needs.

3.2.1 Employment and Promotion Promotion took on a guise of utility rather than reward. Promotion was changed so that it no longer went to an officer who was “faithful and diligent in the discharge of his duties…”, but to the officer “being qualified to fill such vacancy who shall stand next in rotation on the classified list of that division of the service.”137 The Act also provided that seniority would not apply if the appointment of the next in line would cause a “detriment to the efficiency of the public service”.138 A successful candidate for promotion would be the most senior qualified officer whose appointment to the post would not be detrimental to efficiency rather than the officer who had provided good service within the range of their ability.

137 Civil Service Act 1863, cl.XII. 138 Civil Service Act 1863, cl.XII.

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This provision appears at first glance to reduce the ability of a minister to promote favourites. Previously, a minister could have deemed a man to be sufficiently faithful and diligent to deserve promotion. Under the new rules, the minister also had to prove that they were qualified. A criterion such as this is easy to rort, but seniority makes it more difficult. When everyone knows the order of seniority, the appointment of someone out of turn attracts attention and demands explanation. But the provision had little effect for four reasons.

First, in Queensland, seniority was based on salary not on years of service; the most senior person was the person within the class who was paid the highest salary, not the man who had been employed the longest in that class. But an officer would hold more than one post under the system of ‘duel appointments’, which operated in remote areas. They would claim preference for promotion as the multiple of their two or more salaries would be greater than that of a person in the city with an appointment of greater responsibility. This inconsistency was not the intention of the legislation and caused much debate in both Houses.139 But this matter would remain unresolved for some time and was a potential loophole for favouritism.

Second, promotions were decided on the sole basis of seniority and ignored a person’s qualifications. Line managers, and their staff, like seniority for two reasons: it provides certainty, as a person knows exactly where they stand in the order of progression; and pure seniority prevents patronage if everyone progresses in turn regardless of other factors. It is therefore difficult to interfere in the system unless you give a man dual appointments until he became the most senior in a class.

The third reason why the Act was ineffective, was that ministers could appoint outsiders to non-entry positions and avoid the safeguards of the legislation. Backbenchers believed that internal staff should have preference over the appointment of external staff. For example, in the 1864 debate on the Civil Service Extension Bill, Mackenzie, the Member for Burnett, complained that a constituent “who had been for a long time a clerk of petty sessions, and against whom there was no complaint… had a claim for promotion over strangers in the service, and novices.”140 He listed three other officers with clean records who should also have been promoted, but, he claimed, were passed over through nepotism. He claimed a chief constable, who was a friend of a minister, was appointed even though he lacked legal knowledge and was inefficient. Mackenzie also alleged that

139 In the Legislative Council debate on the Civil Service Bill 1864, Mr Wood proposed that a man “should take rank from the highest salary he received, and remain in the class in which that salary placed him.” (QPD 1864, p.298); also Pugh QPD 1868, p.696. 140 QPD 1864, p.104.

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an external person had been appointed police magistrate at Warwick, in the place of all internal officers, especially a Mr Bowerman who was next in line. He said “It was a humiliating admission on the part of the Government, that there was not a single officer in the service qualified for promotion.”141

The Attorney-General, Radcliffe Pring, rejected the concept of absolute application of seniority and clarified the intention of the Act was to bring about the greatest efficiency in the service: An able officer from any class ought to be available for promotion, if any person in that class could hold office without detriment to the public. The Civil Service Act simply asserted, where in any class a good and efficient public officer was found, that officer, on a vacancy in a higher rank occurring, had a preferential claim for promotion. The government should be applauded rather than stigmatized for breaking through a general rule, and when they could not find an efficient person amongst a certain class, for seeking him elsewhere.142

Pring continued that Mr Mackenzie’s accusations were false. Two of the officers mentioned had refused promotion, one was too young and inexperienced and Mr Bowerman was “totally unfit” for the position and “would never be made a police magistrate under the present Government or any other”.143 The Colonial Secretary supported the Attorney-General and further agreed that the Civil Service Act did not intend to deprive the government of its discretion in making appointments: For without discretionary power there could be no responsibility. If that were the case – if the service did not go to the dogs, there would be a great many officers who possessed no other qualification than that of service… And I am sure there is no member of the present Government who would not be anxious to prefer those civil servants who have faithfully discharged their duties and done the country good service.144

Herbert said outsiders could be appointed as promotion was not based solely on seniority. New staff should be taken on as temporary probationers and only receive permanent employment if they prove themselves.145

141 QPD 1864, p.104. The appointment of outsiders to posts other than entry positions was not opposed by the Act but was excluded by a notice in the Queensland Government Gazette of 29 October 1863 which, according to Mackenzie, stated: “Applications for appointments in the Civil Service being at present very numerous, it is notified for general information, that, as a general rule, any vacancies that may occur, will be filled by the promotion of officers already in the service, in accordance with the Civil Service Act of 1863.” 142 QPD 1864, p.105. 143 QPD 1864, p.105. Later in the same debate the Secretary for Lands and Works said: “I have heard that he never remains more than two or three hours a day in his office, and if he undertakes the simplest piece of mechanical work, he is sure to spoil it.” p.129. Though Mr Douglas, who had sat on the bench administered by Bowerman, found him to be “fully competent.” (p.130) In 1868, after Bowerman was told by the then Colonial Secretary, Mr Manning, that he could prove that Bowerman had stolen government money, the latter attacked Manning with a tomahawk. Bowerman was found guilty of wounding with intent and attempted murder, and served a life sentence on St Helena Island. (Scott et al 2001, op cit, pp.20-21) 144 QPD 1864, p.129. 145 QPD 1866, p.58.

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Finally, ministers and members complained about the public’s expectation that they would be able to provide jobs to friends, associates and constituents. Blakeney said government ministers were overwhelmed by, and amenable to, ‘place hunters’: newly arrived young men who needed employment and had letters of introduction. When the Colonial Secretary said Blakeney had himself put forward such a person the previous week, Blakeney replied that “a gentleman of high rank and great attainments was in a state of destitution, and that anything that could be done for him would be an act of charity.” The Colonial Secretary pointed out that appointments were not based on charity.146 Dr Challinor disagreed and defended the appointment of British gentlemen: “…the Government… was justified in giving an appointment to a decayed member of an aristocratic family, if that gentleman was fit for it. A decayed gentleman of English family, was as good as a decayed gentleman of Australian family.”147 His implication is that Australian gentlemen already received preferential treatment, and that this benefit should be extended to newly arrived gentlemen on the basis of their equal value.

To confuse matters, in their history of the Premier’s Department, Scott et al claim that some people held “multiple positions within the ministry and the public service, either consecutively or simultaneously.”148 The ability to be both a minister and a public official added a new level of cronyism under which ministers could not only appoint their friends, but also each other, to government posts. However, the authors provided little direct evidence of this practice.

Despite its flaws, the appointment and promotion scheme was accountable through a requirement for an annual report of the names of all civil servants, their classifications and salaries149 and an avenue of appeal from decisions of improper classification, though not against the appointment of an outside person.150 However, Pugh said even though there was an avenue of appeal, he thought that “…in some cases no notice whatever was taken of the appeal, and in some cases no inquiry took place at all.”151

Ministers also had control of discipline within their agencies. While rules were introduced to cover discipline, they were open to abuse. An officer could be dismissed during his six months probation if he were “incompetent to discharge the duties required of him...”152 Permanent officers could also be dismissed or otherwise punished for bankruptcy, breach of duty, pecuniary embarrassment, incompetence or “conduct rendering it unfit that he

146 QPD 1864, p.126. 147 QPD 1864, p.131. 148 Scott et al 2001, op cit, p.26. 149 Civil Service Act 1863, cl.V. 150 Civil Service Act 1863, cl.VI. 151 QPD 1866, p.791. 152 Civil Service Act 1863, cl.XI.

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should remain” in the service.153 No guidelines were provided as to how a person would be unfit for the service. Given the more homogenous culture of the bureaucracy at the time, it may be likely that further explanation probably was unnecessary. But such a broad term also provided ministers with a means of providing almost any excuse to remove a person from their position.154 However, once again there was some oversight in the form of disciplinary appeals which could be made to a Civil Service Board of Inquiry. But, it is not clear whether these appeals received any more attention than the promotion appeals.

Cohen believes the reliance on individual ministers rather than an independent body, to implement their provisions within agencies, led to the failure of the 1860 Executive Council Minute and the Civil Service Act 1863. She believes that giving power to ministers without an independent body to scrutinise appointments, reduced transparency and promoted patronage.155

In summary, the Act instituted a system in which: • it was intended that gentlemen would be employed in the service; • this reflected the nature of the voting population; • theoretically staff were selected on merit through a public examination; • promotion was given to the most senior qualified person available in the service, whose transfer would not disadvantage the service; • ministers could and did make cronyistic appointments outside of the rules; • ministers were able to sack staff for being “unfit” for the service.

This benchmark allowed politicians to appear accountable, through an independent appointment system and the existence of rules for merit-based promotion. But the rules were flawed in so far as ministers were able to ignore them in practice. Ministers also had the opportunity to classify staff as unfit and subsequently remove them from the service. Consequently, Queensland colonial politicians appeared to be acting in accordance with Downs’ theory. They produced a system that disguised their power to act against the public interest to secure re-election.

3.2.2 Review of the 1863 Act Despite ministers’ protestations, in the 1863 and 1864 debates that the legislation was fine and only needed proper implementation, in 1866 the new Colonial Secretary established an inquiry into the public sector. The terms of reference listed several

153 Civil Service Act 1863, cl.XIV. 154 The same clause remained in legislation until 1988 with no more explanation. 155 Cohen 1995, op cit, p.104.

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problems including the fact that the Civil Service Act had not been implemented fully and the public officials under the Act did not receive the benefits that originally were promised; and that new officers were appointed over the heads of standing officers with full pay.156

The Committee of Inquiry found salary increments and promotions were provided irrespective of a person’s quality of service.157 The Colonial Secretary placed some of the blame on heads of departments. Witnesses at the inquiry admitted that some officers were not up to standard, but refused to name them.158 Walsh blamed the ministers saying that the government did not have control over some officers, and all ministers were so amenable to give jobs to place-hunters that many positions were sinecures.159 The former Colonial Secretary, Herbert, was one of those who thought that little amendment was needed if the Act were implemented properly. Despite Herbert’s suggestions, the government introduced, but did not pass, the Civil Service Act Repeal Bill of 1866.160

During its first decade as a separate jurisdiction, the Queensland Government was not financially sound and some staff were laid off. In 1867 Miles introduced a motion to stop the practice of employing new staff from outside the service while lay-offs were occurring within departments. Even though new staff were highly qualified he felt that the government should be loyal to those within the service. He recommended that no new staff from outside the service be employed until the reemployment of all those who had lost their jobs because of economic difficulties “…it was the duty of the Government to be just before they were generous.”161 The Colonial Treasurer found the proposal “absurd” as it would be impossible to plan a budget.162 Similarly, Dr Challinor thought that it would be better for the Service if men with greater skill were taken in preference to reemploying those of lesser ability.163 Despite these disagreements the motion was agreed to. It is understandable why the government approved the motion. A requirement to re-employ the same staff would be detrimental to a minister’s patronage aspirations, as it would reduce their range of influence. However, the passage of a motion in the House does not compel the Executive to act.

156 QPD 1866, p.56. 157 QPD 1866, p.787-789. The committee simply provided its evidence without an accompanying report examining the reasons why this was the case or offering solutions. See also Watts QPD 1866, p59. 158 QPD 1866, p.790. 159 He proposed reducing the number of jobs but increasing remuneration to attract good workers. (QPD 1866, pp.57-58) This same argument would reappear in the 1990s but only in relation to the most senior staff. 160 For some reason the Bill was not debated again. 161 QPD 1867, pp.342-343. 162 QPD 1867, p.343. 163 QPD 1867, p.343.

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In 1868 yet another Civil Service Bill was introduced. Pugh, somewhat vaguely, said the Bill would secure “to civil servants many of the privileges they now enjoyed, [and] should sweep away the incongruities and absurdities of the original Act.”164 Once again the problems identified were the lack of effective application of the provisions of the original Act. Pugh quoted from the inquiry in which the Registrar-General said he had provided salary increases for undeserving officers because: “…they did their best… These were persons of no ability, but, still, who worked hard and were willing; and, under these circumstances, I did not think it was quite right to stop their increase.”165 Thus the civil servants thought that those who conscientiously had served their time in a ‘faithful and diligent’ manner, as per the 1860 Executive Council Minute, deserved rewards regardless of their productivity.

Pugh added that the question of determining seniority, that is, whether one counted an officer’s total pay or highest individual salary, was still not resolved.166 It is not clear why this was the case. Perhaps it was a difficult political decision; if the group who would benefit from the status quo was equally as large as the group who wanted change, given that almost all civil servants could vote, then politicians’ indecision may have avoided offence to half the electorate.

The 1868 Bill also did not proceed. Thus the situation, although unsatisfactory, remained in place. Civil servants continued to provide increments automatically and use seniority as the sole criterion for promotion.

3.2.3 The Civil Service Acts Repeal Act of 1869 In 1869, Parliament removed all regulation of civil servants to resolve the issue. It was argued that the small size of the service made formal control unnecessary. Those employed at the time had the option of retaining their rights or opting out; they could “without leaving the service withdraw from the obligations and privileges thereof…”167

For twenty years there was no legislative control of the civil service. Consequently, there was also no control over appointments or the provision of appeals. There is no easily accessible information on what happened to the service in this period. But it can be assumed that the new system, or lack thereof, was unsuccessful as eventually the Parliament returned to regulation.

164 QPD 1868, p.694. 165 QPD 1868, p.696. 166 QPD 1868, p.696. 167 The Civil Service Acts Repeal Act of 1869, s.3.

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3.2.4 Conclusion The Civil Service Act of 1863 instituted a system in which it was intended that gentlemen would be employed in the service. This intention reflected the nature of the voting population. Theoretically staff were selected on merit through a public examination and promotion was given to the most senior qualified person available in the service, whose transfer would not disadvantage the service. Ministers could and did make cronyistic appointments outside of the rules and were able to sack staff for being “unfit” for the service.

Thus the Act did not work because both ministers and civil servants rationally pursued their own goals. Ministers used patronage to secure their advantage; civil servants were automatically provided with salary increments and used seniority as the sole criterion for promotion. Attempts to reform these flaws in the system did not proceed and in 1869 the legislation controlling the civil service was repealed.

3.3 The Civil Service Act of 1889 In 1888, a Royal Commission into the structure and practices of the Queensland civil service criticised the prominence of political patronage in appointments.168 In response to the Report, Parliament passed The Civil Service Act of 1889 establishing the Civil Service Board. The Board was made up of senior bureaucrats tasked with examining the staffing needs of all agencies, setting regulations for the standards of examination for entry into the public service and conducting such examinations, making recommendations for promotion, setting terms and conditions of employment and investigating and disciplining staff. In effect, the power to control the service appeared to have shifted from the hands of ministers to the Board.

3.3.1 Nature of merit The Board was given the power over entry examinations and setting criteria for new applicants.169 This new system appears to have been put in place and operated effectively.170 Gender discrimination reduced as females were allowed to be employed, but, in a reflection of their expected short careers, could not participate in the superannuation scheme.171

168 Fraser 1959, op cit. p.3. 169 The Civil Service Act of 1889, s.18. 170 Home Secretary, QPD 22 October 1896, p.1264. 171 The Civil Service Act of 1889, s.68.

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The Act removed the requirement to prove moral character. Perhaps this related to a strong theme of egalitarianism after the introduction of full male suffrage in 1872. For example, Hodgkinson said, in relation to the pay scale for probationary officers: They [members] must not forget, also, that their educational system professed to give an equal chance to all children of whatever rank of life, and unless they gave a boy, after probation, sufficient salary to live upon, and live respectably, without the degradation and annoyance to sensitive feelings that would arise from being worse dressed or worse fed than his companions in the same office, they would be acting very unwisely.

The rise of egalitarianism may be an indication that after three decades the influence of the English gentry had now faded. The “new chums”, or migrant gentlemen, are no longer discussed in debates despite the government’s active pursuit of migrants from Britain. However, egalitarianism only extended to white males who could vote. Non-European migrants and indigenous residents still had no opportunity for employment within the civil service.172

Even though egalitarianism was strictly limited, Leader of the Opposition, Sir Samuel Griffith opposed the principle in two ways. First, he disputed the need for any form of loyalty that required the government to choose an employed clerk for promotion rather than employ a well qualified person outside the service. He said the government should emulate the private sector which is not bound by such loyalty to their workers. Second, Griffith thought that labour should be divided according to class. He referred to the Playfield Commission from the United Kingdom, which recommended three divisions of labour in the British civil service. He said the Commission found that many employees who had worked for years in unstimulating “mechanical and monotonous work” would not have the ability to perform the more intellectual work of higher positions. Consequently, the service should be structured to prevent them from progressing to more difficult positions. Griffith believed the promotion system meant that these less-capable men “stood in the way of other men.”173 He also wanted separate entry examinations for routine and cerebral streams.174 This proposal was not supported because, not only would it be difficult to implement175 and would reduce the morale of lower classified staff, 176 but it would enable the Board to remove those who did not make the grade.177

172 The members of the Native Police, like all members of the constabulary, were not civil servants. 173 Sir Samuel Griffiths, QPD 1889, pp.456-457. The Playfield Commission’s recommendations had not been implemented in Britain 174 Griffiths, QPD 1889, p.459. Mr Hodgkinson stated that, if Griffiths were correct, then promotion for the routine jobs could not be decided by questions of a candidate’s knowledge or skill. Consequently, the only criteria for such promotions would be seniority and good conduct. QPD 1889, Hodgkinson, p.458. 175 The Premier, QPD 1889, p.457: “If he were a member of the board he would not like to have to divide the sheep from the goats in that way, particularly if he could not tell a goat from a sheep.” 176 Barlow, QPD 1889, pp.458-459. The Premier agreed (p.459). 177 Stevens, QPD 1889, p.458. Stevens felt that Heads of Departments already had that knowledge and could make appropriate recommendations to the Board.

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In conclusion, women were employed but under restricted conditions. The service became more egalitarian in response to the changes in the electorate. The moral character test was removed and preference for the gentry ceased. Finally, moves towards private sector management techniques were defeated.

3.3.2 Employment and Promotion In passing the Act, Parliament had two major concerns about meritorious appointments and promotion based on merit, namely, the ability to overcome seniority and biased appointments.

While Parliament failed to eliminate reliance on seniority as a criterion for advancement,178 it finally rectified the automatic provision of increments. Increments would only be available to officers if the Board approved they had met requirements of “efficiency, diligence, and good conduct”. Even then, the rise in salary was subject to the approval of the Governor in Council.179

It was intended that the Board could prevent patronage by making all decisions on promotions based on annual reports from department heads outlining the nature of work and background information on each staff member.180 The Board would inspect every department and the “character of the work performed by every officer therein…”181 so they could decide the most effective manner of operating the agencies. They could determine the classification of officers and the number of staff required to perform the duties of each agency.182 This process appears unworkably onerous and probably did not function in practice. Parliamentarians still complained of biased appointments. O’Sullivan said ‘secret societies’ (see 3.4 below) existed within the Queensland community who gave preference to their own members in all matters of employment. To him it was clear that, as a result, the “papists” were stuck in the worst and lowest paying jobs in some departments. 183 He declared: “If good men were appointed, it would be by the merest chance.”184

Despite the introduction of the Board, ministers still retained control over appointments and promotions. Cohen said the new board recommended a fixed system of salary to stop the abusive practice of ministers granting individual salary increases to certain

178 For example, QPD 1889, pp.460-474. Unmack points out at p.471, that if allowances are not brought under control then they could be a means of providing patronage. 179 The Civil Service Act of 1889, s.31. 180 The Civil Service Act of 1889, s.10. 181 The Civil Service Act of 1889, s.11. 182 The Civil Service Act of 1889, ss.12-14. 183 QPD 1889, pp.457, 459-460. 184 QPD 1889, p.450.

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officials.185 However, Cohen also notes that the nature of a board consisting entirely of civil servants was criticised as serving its own interests and not being directly responsible to the public.186 Ministers also ignored the recommendations of the Board when making appointments within their own departments.187 O’Sullivan predicted this practice, saying that the Board was only a buffer between the Departmental head who made recommendations and the minister who, in the guise of Governor in Council, made the appointments or promotions.188 If this is true, then the Board was a sham. It could carry on its role and make recommendations, but the final authority still rested with ministers. Ministers also retained the ability to make appointments to non-entry positions.

The Board made disciplinary regulations.189 Discipline provisions were tightened and an officer could be sacked for committing a felony, and was automatically removed for bankruptcy.190 “Trivial offences” could be dealt with by fines.191 The process of dealing with offences was very similar to that conducted by the Crime and Misconduct Commission today. The departmental head would determine whether a prima facie case existed. If he was satisfied that this was the case he would pass the matter on to the Board for investigation and determination. The Board then reported to the minister who sought Governor in Council approval for the recommended action.192 These provisions were weak because ministers retained final authority and they could take action against an officer without going through the Board. The Act also retained the ‘unfitness’ clause.

3.3.3 Conclusion In summary, the Act instituted a system which reflected an end in the bias towards gentlemen, specifically in the removal of the moral criteria for employment. Parliament also was aware of discrimination against Catholics. Employment practices thus reflected full male suffrage. Attempts were made to reinforce merit in employment and promotion through the operation of a Board, but ministers could and did make cronyistic appointments outside of the rules and were able to use discipline as a weapon against staff.

The Board at least was pleased with the new arrangements. In its first annual report, the Board noted that the Act resulted in: A better administration of the Public Departments, to a more punctual attendance of Officers to their duties, and to improved Discipline and Efficiency. On the other

185 Cohen 1995, op cit, p.108. 186 ibid, p.109. 187 ibid, pp.109-110. 188 O’Sullivan, QPD 1889, p.459. 189 The Civil Service Act of 1889, ss.34-35. 190 The Civil Service Act of 1889, s.38. 191 The Civil Service Act of 1889, ss.40-41. 192 Home Secretary, QPD, 22 October 1896, p.1264.

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hand, the admission of unqualified persons into the Service has, by the introduction of a system of Competitive Examinations, been effectively checked, whilst the system of Promotion on the sole ground of Seniority and Merit, and on the recommendation of an impartial Board, has insured to officers, in all branches of the Service, reasonable prospect of advancement.193

But once again the legislation was to have a short life.

3.4 Public Service Act of 1896 A new Bill was introduced in 1896 as a “consolidation” of the law regarding the public sector.194 Most notably it replaced the ‘Civil Service Board’ with a ‘Public Service Board’ with reduced powers.

The Home Secretary said the purpose of this Bill was to give the Board an extension of three years to fit with the life of the sitting parliament.195 He gave the Board credit for turning a “congested” civil service of 1,597 classified staff and many supernumeraries into 1,388 staff with very few supernumeraries.196 He also said they “have given me great assistance in the working of my department in regard to economy, promotions, and transfers.”197 He was particularly pleased that the existence of the Board relieved Ministers from having to deal with place-hunters. Therefore, although there may be something to be said against the board – and boards are not perfect – yet it would be folly of the worst kind to do away with the board altogether. Go back to the old system, and the result would be that you would have a service crammed with persons incompetent to do their work.198

Labor member, Thomas Glassey disagreed saying the Board would have been more successful had its members had more “backbone”. The main failures he identified were people being given positions that they were unfit to perform, particularly in senior posts.199 Both sides of the argument received support and many members disputed the Home Secretary’s claims of success.200

Not many changes were made to the system instituted in 1889 in the 1896 legislation. The debate on the Bill contained many references to the assurance that merit would be

193 Civil Service Board 1891 First Report of the Civil Service Board of Queensland for the Year 1890, Queensland Government, Brisbane, para.67-68. 194 QPD, 22 October 1896, pp.1263-1264. 195 QPD, 29 October 1896, p.1363. 196 QPD, 22 October 1896, p.1263. Actually he said: “Of course, I am giving the board credit for this, but I need hardly say that the Government have been greatly responsible for it.” 197 QPD, 22 October 1896, p.1263. 198 QPD, 22 October 1896, p.1264. The positions sought are described as “billets” suggesting that people were after entry level positions as a means of safe and secure employment, rather than seeking high level appointments. Jackson (QPD, 29 October 1896, p.1363) said the Board created a “buffer” between Ministers and the public in this regard. 199 Glassey, QPD, 22 October 1896, pp.1267-1268. 200 See Daniels, QPD, 22 October 1896, p.1273, for a popular characterization of the Board.

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the only consideration in appointments and promotions.201 However, the Act removed the Board’s power to oversee appointments to non-entry positions from outside the service. The Governor in Council (i.e. the ministers) had full authority over the process.202 Some members already believed the Board to be the puppet of ministers, so the new clause was not popular.203

The influence of external groups on the service generated concern. Serious debate followed the suggestion that members of the Board should not be officers of secret societies. The societies in question were the Free Masons, Oddfellows and other benevolent bodies. The suggestion was that it was acceptable that officials were members but that office holders in such organisations would feel the need to promote their societies and be more open to favouritism. The debate became quite acrimonious as it was made apparent that many Members of the Legislative Assembly belonged to the societies in question and that the Chief Justice was the Grand Master of the local Masonic Lodge.204 Still the topic was so impractical that it had no effect on the Bill.

Colley claims that the Public Service Act of 1896 allowed patronage to increase through the use of special certificates and temporary appointments.205 Her source for the claim is Scott et al, but no evidence to this effect is present from that source. They simply say that: Issues of patronage plagued nineteenth-century administrations. Premiers received numerous requests from individuals seeking help in securing posts within the public service. James Dickson endorsed the view that individuals who had supported his government should have first call on any vacancies in the public service, although on at least one occasion he recommended an individual who had been a political opponent.206

Certainly the means for patronage was available. But as with all cases the absolute proof of patronage is extremely hard to discover.

201 See for example, Home Secretary, QPD, 22 October 1896, p.1265; O’Connell, p.1272. 202 Public Service Act of 1896, s.36. If the Board identified a position that could not be filled from within then the Governor in Council could select a person without requiring an examination or probation. In the case of an appointment as “Warden, Police Magistrate, or Mineral Lands Commissioner” the Governor in Council did not have to wait for the Board to identify a gap. They could appoint an outsider as long as it “…appear[ed] to the Governor in Council expedient in the interests of the Public Service…” They had to advise the Board of the decision in order to allow a check of the veracity of the decision, but the Board could not veto the appointment. 203 See for example, O’Connell, QPD, 22 October 1896, p.1271; see also Leahy (p.1273). 204 QPD, 3 November 1896, pp.1347-1355. 205 Colley L 2004 Myth, Monolith or Normative Model?: Evolution of the career service model of employment in the Queensland Public Service 1859-2000, unpublished doctoral thesis, Griffith University, p.113. 206 Scott et al 2001, op cit, p.55.

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Disciplinary provisions remained the same.207 However, an officer could no longer be dismissed for becoming insolvent. After the depression of the early 1890’s, Members were sympathetic to the plight of many people who found themselves in financial difficulties. As William O’Connell said: I hold now, and have always held, that it is a cruel thing running through all our statutes, that because a man gets into pecuniary difficulties his employer – where the State is the employer – shall cast him into the street, and say, ‘You have done good service for years, there is no black mark against you, but simply because you have been unlucky in your investments you shall be debarred from earning your living in the way in which you have been accustomed to earn it.’208

The department head dealt with minor cases of negligence or carelessness and staff had a right of appeal to the Board. Thus the Governor in Council could not intervene in matters commenced within an agency.209 But a minister had the power to discipline for any other breach, including the notorious unfitness provision.210

In summary, the 1896 Act retained the changes of the 1889 legislation. However, minor changes were made to improve the ministers’ control. This new structure was also soon abandoned. According to Fraser, the Board was found still not to be independent of political influence and its conservatism mired the decisions of its members. In the 1896 debate Leahy said if the Board was not going to be independent then it was better to abolish it altogether.211 Obviously the government agreed, and an amendment of the Act in 1901 abolished the Board and created a new Board comprising the members of Cabinet.212 Thus the limited powers of the Board fell back into the hands of ministers. This version of the Board lasted till 1920.213

3.5 Conclusion From the time of the creation of the Queensland colony, governments had taken every step to ensure they controlled the power of patronage whilst appearing to address public concerns about independence and accountability. They ensured their re-election through creating a civil service that reflected the values of the voters. At first employment required a candidate to be a gentleman, reflecting the restricted franchise of the new colonial Parliament. Candidates for appointments had to have the educational abilities only available to the financially sound and prove their moral character. As electoral qualifications changed to allow full male suffrage, employment requirements became more egalitarian, and lost the distinctive ‘moral’ criteria associated with the gentry.

207 Public Service Act of 1896, ss.41-46. 208 O’Connell, QPD, 22 October 1896, pp.1271-1272. 209 Public Service Act of 1896, s.46. 210 Public Service Act of 1896, s.41. 211 Leahy, QPD, 22 October 1896, p.1273; and Daniels, p.1273. 212 Public Service Act Amendment Act of 1901, s.5. 213 Fraser 1959, op cit. p.4.

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On another level, ministers retained control of the power of appointment and promotion ability to manage the flow of information. Throughout the colonial period, the Governor in Council (i.e. ministers) had the final say on appointment and promotion. Even when a Board was introduced as an impartial arbiter its decisions were still subject to the approval of the ministry. While lists were produced of all appointments made in the service, these lists do not appear to have generated much scrutiny in Parliament.

Finally, ministerial control over the stick of discipline matched the carrot of patronage. Ministers could initiate their own disciplinary actions as well as veto those of the Board or departmental heads. The Act also retained an extraordinary catch-all provision under which a minister could make a subjective judgement as to a person’s fitness to work in the service.

On the whole it can be concluded that the government did not take serious steps to make the service work better to provide benefits to the community. Ministers ensured they maintained their control and capacity for patronage and used claimed and actual poor performance of civil servants as a diversion from their own blunders.

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Chapter 4 1900 to 1989

This chapter will deal with a new stage in the role and development of the public sector in Queensland. In the early twentieth century Queensland became an egalitarian community with ‘universal’, that is, non-indigenous adult suffrage. The acceptance of all non-indigenous adults in the community as beneficiaries had a significant effect on the nature of ethics in the public sector. Specifically a shift occurred in the recognition of who was being served and type of person who should serve.

Political parties had to demonstrate their commitment to an accountability regime to satisfy a larger number of voters with a much broader set of interests. This demonstration disguised, however, a more efficient means of maintaining control, where ministers made senior appointments but no longer concerned themselves with junior positions.

During this period, the public sector adopted its modern structure. Departments became large organisations and the breadth of government responsibility expanded to reach every part of social life. This growth in the public sector was partly due to the introduction of the welfare system in the first half of the century possibly driven by the expanding expectations of the community about the role of government. The amount of work involved in a larger institution meant that ministers could not take all decisions and so much authority over the public service was delegated. At the beginning of the century the responsibility was given to a Public Service Commissioner. As the government grew larger, it became too complex for a single appointee to handle. Eventually, a new Board was established and later the control of staffing was given to the individual CEO’s of agencies.

This chapter will cover the period of the Public Service Commissioners and the years during which Sir Johannes Bjelke-Petersen was Premier. The first section will be an examination of legislation in the same manner as the previous chapter. The second section will analyse how the Premier directly intervened in the public service.

4.1 Individual Public Service Commissioners

4.1.1 Public Service Acts Amendment Act of 1920 The Public Service Acts Amendment Act of 1920 abolished the Public Service Board and appointed a Public Service Commissioner with control over most matters about operation

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and employment.214 The Premier at the time, Edward Theodore, gave three reasons for the delegation of power from the ministry to a commissioner. First, Theodore claimed that ministers did not have time to both administer larger public sector agencies and deal with matters before the Board.215 Second, the Premier said the increase in the number of public sector staff also meant that ministers did not know their employees well enough to make detailed personnel decisions. Finally, few ministers had experience of the public sector and therefore the majority were unqualified to make decisions about management of their departmental staff. These ministers tended to accept the advice of their departmental heads. The Premier claimed that a single Commissioner would also rectify the lack of uniformity in decisions or standards across agencies.216 John D. Story was appointed as the first Public Service Commissioner in 1920.

At first glance the appointment of a Public Service Commissioner appears irrational, as it robs ministers of their power over appointments and discipline, and, therefore, their control of patronage. However, Cabinet retained the ability to override the Commissioner. The new arrangements only reduced ministers’ workload, not their power.

Over 600 public servants lost their jobs in the 1921-22 financial year, and the rest suffered wage cuts, due to the loan embargo placed on Queensland from 1920 to 1924.217 But the new Commissioner was not scapegoated for this failure. Two years of experience with the commissioner model, combined with Story’s popularity, led to a new piece of legislation, leading to sixty-six years of relative stability in statutory control over public sector affairs. Story supported the passage of a new Act: My experience as Commissioner has shown me that the Public Service Acts are defective in many respects, and a comprehensive Amended Public Service Act is a necessity. The Principal Act was passed in 1896. The Public Service of to-day is vastly different from the Public Service of 1896; old times have changed; old manners have gone; new departments have arisen; new forms of administration have come into being. Many things which are not provided for at present should be provided for in the Amended Act.218

4.1.2 Public Service Act 1922 According to the Premier, the Act was designed to: “consolidate the [position of Commissioner] and improve the general machinery of the law about the public service, at the same time more clearly defining the powers of the Commissioner, and setting out his

214 Public Service Acts Amendment Act of 1920, s.3. 215 Fraser 1959, op cit, p.6. In practice, rarely more than four ministers attended board meetings. 216 Theodore, QPD, 28 September 1922, pp.1998-1999. Vowles added that the Board did not held regular meetings and usually the same members did not attend consecutive meetings leading to inconsistent decision making. (QPD, 28 September 1922, p.2002) 217 Scott et al 2001, op cit, p.88. 218 Story J D 1921 First Annual Report of the Public Service Commissioner, Being the Report for the Year Ended 30th June 1921, p.16.

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duties and authority.”219 The Act’s other significant change was to give officers earning less than ₤300 per annum access to the Industrial Arbitration Court to set their pay and standards. Parliament would set the conditions for staff on higher salaries.

Support for Story as Commissioner was bipartisan.220 Many admitted that the system’s success largely depended on the skill, knowledge and character of its incumbent.221 Theodore said “… under the system of the Public Service Commissioner public servants have greater freedom and liberty than they ever had before.”222

4.1.2.1 Nature of merit Under the Public Service Act 1922, s.51(1)(xii) the Commissioner had power to make regulations in relation to: “Fixing, subject to this Act, the maximum or minimum age of persons who may be appointed to any particular division or class, or to any particular office.” The Act did not, however, usher in new entry requirements.223 The 1923 regulations continued the Queensland requirements that all applicants to be between 15 and 19 years of age. The Act restricted promotion by age. General Division officers who were 30 years or older could no longer sit for examinations to move to the Professional and Clerical Division. No clear explanation was provided for this change, but the policy may have resulted from the nature of seniority. Older non-performing officers on higher increments would have blocked the way of prospective up and coming new talent. Placing an age cap would have removed this problem and made the service a more attractive career path for the young and ambitious. A service with more talent for the same cost is one that has greater productivity for the same expenditure.

Evidence for this interpretation can be seen in the policy about compulsory retirement. Even though some 65 year olds are very capable, Story said the policy had to be set for the average 65 year old’s abilities. He said removal of old but capable officers was fairer to others who deserve “the honour” of holding as high a position as they could before retirement.224 During the Second World War, however, the shortage of staff meant that

219 Theodore, QPD, 28 September 1922, p.1996. The Act also divided the two divisions of staff into five to accommodate the different awards under which public officials worked. This proved unpopular and complex and was removed in a 1924 Amendment. (S.15 Public Service Act 1922; Cotterall B 1980 ‘The Machinery of Government’ in Murphy D, Joyce R & Hughes C (eds) Labor in Power: The Labor Party and Governments in Queensland 1915-57, University of Queensland Press, Brisbane, pp.75-94, at pp.80-81.) 220 Theodore, QPD, 28 September 1922, p.1999; Vowles, p.2002; Fletcher, p.2003; Taylor, p.2003; Barnes, p.2004; 221 Theodore, QPD, 28 September 1922, p.1999. 222 QPD, 28 September 1922, p.1705. 223 Story 1923 Third Annual Report of the Public Service Commissioner, Being the Report for the Year Ended 30th June 1923, Government Printer, Brisbane, p.5. 224 Story 1927 Seventh Annual Report of the Public Service Commissioner, Being the Report for the Year Ended 30th June 1927, Government Printer, Brisbane, p.41.

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some officers could continue in service beyond their required retirement age. Such an appointment would be reviewed every six months.225

Despite receiving the vote in 1905, women did not achieve equal access to the service. Parliamentary debates occurred over whether women should be employed at all, and, if they were, whether they should receive equal pay. Female employment was restricted in five ways. First, in the 1930s, while the State Government was the largest employer of women in the State, most female public servants were either teachers or held ‘routine’ positions of a purely clerical nature. A 1932 regulation allowed women to sit for clerk- typist positions but not other divisions.226 The second restriction on women was the policy that only male employees would be allocated tasks that would lead to advancement up the hierarchy. Third, women could not supervise men.227 Fourth, the Public Service Act 1922, s.51(1)(iii), stated that the Commissioner had power to make regulations in relation to “the terms on which the service of female officer may be dispensed with upon marriage.” The public service regulations of 1923 stated that a woman would forfeit her position if they did not resign when they were married.228 Finally, the Public Service Act Amendment Act 1920 had provided different pay scales for men and women.

The Commissioner had no sympathy for the treatment of women in the service. In fact, Story was apologetic about employing any women at all. However, he did see value in female employees as teachers of ‘lower classes’ and proficient operators of ‘machinery’ in work such as typing, telephone exchanges and accounting machines.229

Full female suffrage did not result in women receiving the same employment opportunities as men, because of public support for the Harvester judgement model of the nuclear family. Story explained the model when discussing the legislative basis of unequal pay: The Industrial Act provides that the basic wage of an adult male employee shall be not less than is sufficient to maintain a well-conducted employee of average health, strength, and competence, and his wife and a family of three children in a fair and average standard of comfort; whereas the same Act provides that the basic wage for an adult female employee shall not be less than is sufficient to enable her to support herself in a fair and average standard of comfort. This Act provides, also, that the same wage shall be paid to person of either sex

225 McCracken 1943 Twenty-Third Annual Report of the Public Service Commissioner, Being the Report for the Year Ended 30th June 1943, Government Printer, Brisbane, para.42. 226 Story J 1933 Thirteenth Annual Report of the Public Service Commissioner, Being the Report for the Year Ended 30th June 1933, Government Printer, Brisbane,1933. 227 Colley 2004, op cit, p.154. 228 Story 1923, op cit, p.4. 229 Story 1933, op cit, pp.28-29.

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performing the same work or producing the same return of profit to their employer.230 (Story’s emphasis)

Within the confines of this model, the service nonetheless provided a good career opportunity for women. Queensland public sector pay rates for women were higher than those proscribed in industrial awards. However, Story noted that raising pay to equal levels would be a serious impost on the state purse. So long, however, as it can be established definitely that female labour in the Crown Service is not being exploited, that the favourable rates of pay for females are being maintained, and that the number of females employed in sections which are common to both males and females is not disproportionate, so long, I think, will the Crown be warranted in opposing, particularly in group positions, generalised claims for “Equal Pay.”231

Women benefited during labour shortages such as during World War Two when married women could return to the service, albeit on a temporary basis. In the 1960s public attitudes to the family and status of women changed and these new beliefs were soon reflected in public service conditions. Equal pay for women began in 1967 with female teachers. Other female staff also received equal pay benefits in the early 1970s.232

In conclusion, the operation of merit was diluted in two ways. First, an age cap was placed on promotion between divisions, probably to increase the promotion opportunities for the talented younger officers. Second, women were entrenched in an inferior position to men. Female public servants were paid less, had to resign when married, and had fewer opportunities for both employment and promotion. Neither of these initiatives was the subject of a public backlash but the staffing shortages of the Second World War necessitated the suspension of employment restrictions.

4.1.2.2 Voters’ Values The average person saw a public sector job as a highly desirable and relatively secure position. The job’s desirability can be demonstrated by public reactions to its unavailability. At the time of the Great Depression, Story noted community complaints that the number of entry positions had been reduced. He said these circumstances were disappointing to the families who had pushed children (presumably boys) through secondary schooling, sometimes at significant personal sacrifice, in the hope of obtaining a public service position.233

230 Story 1936 Sixteenth Annual Report of the Public Service Commissioner, Being the Report for the Year Ended 30th June 1936, Government Printer, Brisbane, p.21. in 1937 (p.26) he wrote that this was in addition to the need for welfare payments for poorer families to provide for their children. 231 Story 1936, op cit, p.22 232 Scott et al 2001, op cit, p.124. 233 Story 1931 Eleventh Annual Report of the Public Service Commissioner, Being the Report for the Year Ended 30th June 1931, Government Printer, Brisbane, p.25.

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In a reflection of the competition for public service positions, Story saw a public service career as a privilege for which bureaucrats should be grateful. He said public officials were rewarded with significant benefits like: permanent jobs; good pay (nowadays); regular fortnightly cheques; recreation, extended, and sick leave conditions which are on the liberal side; short hours; working arrangements which, on the whole are good; Appeals Boards, and so on…Compare with what in the main prevails outside, these privileges are very real privileges and are well worth preserving. Then let us use them discreetly; let us be careful not to abuse them. Appreciation will be shown by good and loyal service; thus can the ethical and the practical commingle.234

The Leader of the Opposition in 1922, William Vowles, said: “There are some public servants who do not realise to the full what an advantage it is to be a public servant to get the regular pay… There are many men walking the streets who would be very glad to change places with some of them and do the work they are doing.”235 Story echoed these sentiments when he talked of the debt owed to the State by those who had received scholarships for their education: “Many of those who join the Service have been holders of State Scholarships; they owe the State much for the help which it has given them. When they enter the Service they have an opportunity of repaying – and the ways which they can repay are manifold.”236

Thus Story tried to instil a culture of service and respect for the public. Public servants were privileged to both serve and be well rewarded for service. Story believed they had a debt to the State that had to be repaid with high quality service.

4.1.2.3 Employment and Promotion The Commissioner was empowered by the Public Service Act 1922 to make regulations in relation to examinations.237 Story made it clear that different education standards would apply to different positions as required for the best performance of the tasks.238 Each division had its own set of qualifications. Under s.18(1) a person could not “be admitted to any division of the Public Service unless he is qualified as prescribed.” However, it was not necessary for a person to sit the exam if they had other qualifications. A person with a degree, diploma or certificate, which was as good as or better in quality that the Senior Public Examination Certificate of University of

234 Story 1926 Sixth Annual Report of the Public Service Commissioner, Being the Report for the Year Ended 30th June 1926, Government Printer, Brisbane, p.25. In 1937 (p.28) he noted the attractiveness of these positions, especially in a post-depression society, and the pressure put on politicians by constituents to help them secure a place in the Crown employ. 235 Vowles, QPD, 28 September 1922, p.2003. Not everyone agreed. Taylor said: “I regard the public service in this way: that if I had a hundred children, I would not put one of them into the public service.” (QPD, 28 September 1922, p.2004.) 236 Story 1921, op cit, p.28. 237 Public Service Act of 1922, s.51(1)(v). 238 Story 1926, op cit, p.14.

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Queensland, could be exempted from the public service examination.239 After World War Two, labour shortages required the development of incentive schemes such as scholarships and cadetships to attract suitably qualified staff.240

The Public Service Act 1922 was the first Queensland legislation to require that government positions be advertised.241 Each vacancy would be advertised in the Gazette allowing officers across the State to apply to be considered for the position. The Commissioner would recommend the person most suitable to take up the position. Even though jobs were openly advertised, only existing officers could apply. Also, appeals by unsuccessful applicants were only available to applicants from within the agency advertising the vacancy, as it was believed that the only person who could make a reasonable case was an officer immediately below the position if they were passed over for promotion.242 The appellant could only win the appeal if they could demonstrate greater efficiency or equal efficiency but greater seniority than the successful applicant.243

The Industrial Arbitration Act 1916 gave the Industrial Administration Court the power to require union membership in an industry. The Theodore government said unions were desirable because, without organisation, the union members would not have the finances or power to pursue an equitable award.244 The Opposition opposed the move as it preferred employees to have the freedom to choose whether they wanted to be union members.245 Ultimately, decisions for and against compulsory unionism relied on questions of ideology and partisan advantage. The ALP received much of its funding from unions and many Parliamentarians were former union organisers. An increase in the number of union members increased the power of the Labor Party. By contrast, the pro- business conservative opposition opposed unions both ideologically and because of the close alliance between the union movement and the Labor Party.

Unionism was promoted through two other enactments. The Public Service Act 1922 allowed public servants who earned under ₤300 per annum to join and form unions without the danger of dismissal or loss of promotion. A public servant could only appear before the Industrial Commission if the Industrial Conciliation and Arbitration Act applied.246 Story did not criticise the arrangement and noted that, while all public servants

239 Story 1923, op cit, p.5. 240 McCracken J 1945, Twenty-Fifth Annual Report of the Public Service Commissioner, Being the Report for the Year Ended 30th June 1945, Government Printer, Brisbane, p.2. 241 S.19 242 Theodore, QPD, 28 September 1922, p.1997. 243 S. 36(2)(a) 244 Secretary for Public Works, QPD, 12 September 1916, p.447. 245 Vowles, QPD, 12 September 1922, p.513. 246 This provision was removed in 1983.

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were required to be a member of a union, some staff had a choice of which union to join.247

The Opposition Leader, Vowles, claimed that employees were forced to join ‘political unions’ even if they were paid over ₤300 and therefore received no benefit from membership. Those who refused risked losing increments or promotions.248 Barnes supported this assertion and gave the example of a Mr Exley who was victimised, in the form of an ‘Irishman’s promotion’ (an sideways move to an undesirable job or location), for standing up against the government over the direction of the service.249 Barnes’ accusation is strange as both increments and promotions were the purview of the Commissioner, not the government. However, Barnes believed that the Commissioner, as good a man as he was, was “harassed by the powers that be trying to direct him in certain directions.” Roberts noted that even union members could be in trouble. Staff who openly criticised government policy would have to face the minister for a dressing down and probably be passed over for promotion.250

The Moore government (1929-1932) was anti-union. The Industrial Conciliation and Arbitration Act 1929 provided that public service unions could not affiliate with a political party. Murphy says that at this time the blue-collar government workers belonged to unions affiliated with the Labor Party, while the white-collar public servants’ unions tended to be non-aligned, even with the Trades and Labour Council.251 In 1931 the Moore Government placed a further restriction on public officials being involved in political activity. The 19 November regulation provided: (a) an officer shall not take any part in political affairs otherwise than by – (i) The exercise of the franchise; or (ii) The contesting of a plebiscite for the selection of a parliamentary candidate; or (iii) Becoming or remaining a member of a political organisation.

The Forgan-Smith Labor government repealed this regulation in 1932.

Union members were likely to support a Labor government because the party was required by its constitution to be amenable to their cause. On the other hand, an anti- union government would not want many unionists in the service because they would be

247 Story 1939 Nineteenth Annual Report of the Public Service Commissioner, Being the Report for the Year Ended 30th June 1939, Government Printer, Brisbane, p.28. 248 Vowles, QPD, 28 September 1922, p.2000. 249 Barnes, QPD, 28 September 1922, pp.2004-2005. 250 Roberts, QPD, 28 September 1922, p.1705. This was not unique to union members or the Labor Government. Under the Moore government public servants perceived that if they complained they would be transferred ‘out west’ as a punishment. (Whitehouse G & Wiltshire K 1987 The History of the Queensland Professional Officers Association, Royal Australian Institute of Public Administration Queensland Division, Brisbane, p.83) 251 Murphy D J 1983 ‘Trade Unions,’ in Murphy D J (ed) The Big Strikes: Queensland 1889-1965, University of Queensland Press, St Lucia, pp.33-46, at p.39.

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liable to inhibit the government’s goal of re-election. Unionists would be closely associated with the Opposition, and could also have been thought to be more likely to reveal mistakes or misconduct and to embarrass the government.

Regardless of the actions of government, the greatest benefits for public servants came from organisational culture rather than union membership. Public sector managers continued to give increments automatically and rely on seniority for promotions. Story tried to stamp out these practices. Increments were only to be paid on the Commissioner’s recommendation subject to Governor in Council approval.252 In his first report in 1921, Story noted that: The awards provide that no person shall be entitled to receive any increase of salary by virtue of the awards unless his conduct, diligence, and general efficiency have been certified by the Public Service Commissioner to have been and to be satisfactory. It is well that the Service should realise that this provision must be made an effective one and that carte blanche certificates cannot be given.253

However, contemporary industrial legislation guaranteed increases in pay independent of a person’s performance. Howatson pointed out that under the 1917 Industrial Agreement: “…an employee could not be paid less than the award minimum so that the absence of efficiency, diligence, and good conduct did not prevent an officer from receiving an increase from a change in the minimum salary of an award classification.”254 Later the Industrial Commission stated that all increments were to be paid without review, thus ending a debate of many decades whether their payment should be subject to stricter oversight of the quality of work performed by the specific employee.255

In 1918, the General Officers Association, a public sector union, complained that promotions were being decided on the basis of merit and patronage rather than seniority. They claimed this policy was unreasonable as it affected the confidence of the fellow workers who could no longer rely on their expectation of promotion.256 Story explained in 1923 that the traditional definition of seniority was still in place: “Seniority” is determined mainly by the relative values of the positions held and the salaries drawn by the officers whose claims are under consideration. Length of service does not enter into the question unless the officers are equal in respect of value of positions held and salaries drawn. 257

252 Public Service Act of 1922, s.20(2). 253 Story 1921, op cit, p.17. At p.25 he makes clear that officers cannot be given further pay increases simply because they have reached to top of their increment scale. 254 Howatson 1888, op cit, p.10. 255 ibid, p.10. 256 Colley 2004, op cit, p.129 257 Story 1923, op cit,, p.6. Seniority still held some importance as steps were taken to preserve the seniority of men who went to war “The interests of “returned soldier officers” are safeguarded. The efficiency of such an officer is defined as that which in the opinion of the Commissioner he would have attained but for his absence on naval or military service. Provision is made whereby the soldier-officer retains the seniority which he had at date of enlistment over any other officer, who,

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Later in 1927 he said: “Promotion depends first upon efficiency…”258 (his emphasis) However, there did not appear to be any mechanism to ensure that public servants met these requirements, instead of ignoring them in favour of more advantageous practices. It would appear that managers found seniority to be the easiest method to judge performance and the most diplomatic tool for dealing with promotion. Seniority effectively removed the need for a manager to make a decision. In the 1940’s Story’s successor, J McCracken demonstrated the durability of this practice when he saw the need to emphasise that seniority was not the final determinant of selection: “If progress is to be achieved in Service administration and real efficiency obtained, the higher qualifications and superior efficiency of the junior officer must outweigh the seniority of the older but less efficient officer.”259 However, the power of seniority was still sufficiently in practice that the Professional Officers Association did not remove its support for the practice until 1975-76.260

Story made an exception to his support for merit. He said a minister should be able to choose his private secretary and that this position should also be exempt from appeals. He believed that staffers have to meet personality as well as skill and knowledge requirements, to work with their minister. As he summarises: “Star Private Secretaries are not manufactured by mass production.”261

In the case of promotions, the Act supported existing staff as against external applicants, with most vacancies to be filled internally: 19. When a vacancy occurs in any department and it appears to the Commissioner necessary to fill such vacancy, it shall, wherever practicable, be filled by the transfer and promotion or transfer or promotion of an officer then in the Public Service.

This section referred to staff within the service not individual agencies. Story pressed for a service-wide perspective rather than agency-focused view of management thinking.262 Story recognised the problem of ‘departmental inbreeding’, or the failure to bring new

during the soldier’s absence on service, got promotion which made him senior to the soldier- officer.” (Story 1923, op cit, p.6.) Similar provisions were provided after WW2 under the Industrial Conciliation and Arbitration Acts (War Service Preference in Employment) Act 1944. 258 Story 1927, op cit, p.41. 259 McCracken J 1942 Twenty-Second Annual Report of the Public Service Commissioner, Being the Report for the Year Ended 30th June 1942, p.3. The following annual report states seniority only matters when the two officers are efficient equally. 260 Whitehouse & Wiltshire 1987, op cit, p.101. Professional staff worked under a promotion scheme similar to that still used by academics. Rather than having to wait for a vacancy in a higher position, they simply had to face a review of their talents each 7 years to progress to a higher salary band. However, this did restrict them from taking senior management positions, all which were classified under the clerical/administration division. (p.102). 261 Story J D 1938 Eighteenth Annual Report of the Public Service Commissioner, Being the Report for the Year Ended 30th June 1938, p.33. 262 Story 1933, op cit, p.26.

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ideas into the organisation, and said it can lead to “stagnation, retrogression, and even actual commercial disaster.” But he opposed the introduction of new blood except as an extreme measure. Rather he believed that existing staff should be sent outside the state to inspect other jurisdictions and bring back new ideas.263 He continued: “Unless for projects which are entirely new, specialists from overseas who are not familiar with our local conditions and viewpoints should be imported only as a last resort.”264 Progressive spirit was so important that officers became afraid of being labelled reactionary.265

Story also reminded staff, especially ‘heads and sub-heads’, to reflect regularly on what they were doing to ensure they had not fallen into a rut. He wanted them to try continuously and improve their work and that of their office.266 Efforts should be made to eliminate cumbersome methods in office procedure and to find economical ways of doing work without loss of efficiency. A system which was good yesterday may not suffice today unless it be adjusted to meet the needs of to-day. Here again well-trained officers may be able to assist, provided initiative is encouraged and helpful suggestions are welcomed.267

Later he repeated this direction saying “[Heads] are also expected to review critically, from time to time, the work of their departments to see whether it is possible to improve methods or to extend with advantage the field of activities; on them devolves the duty of keeping moving as far as may be the wheels of constructive and progressive development.”268

In conclusion, during this period several initiatives were introduced in relation to employment and promotion. Separate exams were introduced for each division in the service. Public sector vacancies were advertised for the first time and made subject to limited appeal rights. The Theodore Labor government introduced compulsory unionism but the Conservatives removed it. Story was unsuccessful in trying to remove automatic allocation of increments and the reliance on seniority for promotions. Finally, Story also attempted to reduce the silo mentality in favour of a sector-wide approach. Each of these initiatives shows the characteristics of Downsian rationality. Most related to increasing the productivity of the public service, but the issue of unionism was relevant to the incumbent governments’ maintenance of power.

263 Story 1927, op cit, p.43. 264 ibid, p.44. 265 Story 1931, op cit, p.24. In 1933 (Story 1933, op cit, pp.27-28) he recognized that the service still fought against those who pushed for change. 266 Story 1927, op cit, pp.44-45. 267 Story 1926, op cit, p.15. 268 Story J 1929 Ninth Annual Report of the Public Service Commissioner, Being the Report for the Year Ended 30th June 1929, Government Printer, Brisbane, p.30.

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4.1.2.4 Subversion A direct form of immediate patronage was the 1922 reclassification of long serving temporary appointees into permanent employees, thus circumventing the selection process.269 The Premier, Theodore, saw the transfer as a “common measure of justice.”270 However, the use of temporary appointments had been an opportunity to give jobs to friends without scrutiny. Under this provision these staff were automatically made permanent.

The Commissioner had to validate all vacancies, advertise them in the gazette, and make recommendations to Governor-in-Council as to who the successful applicant would be.271 He was also required to publish an annual list of all appointments, promotions, transfers and other personnel matters.272 Some commentators saw this as the end of patronage; the Commissioner took over most of the role of making appointments ending “the unfettered powers of ministers and permanent heads who could handle virtually the whole range of personal administration with minimal central oversight.”273 Howatson believed that while a Minister could seek preference, the Commissioner was the only person who could approve it.274 The other provisions of the Act do not support this conclusion.

As noted in the introduction, Cabinet kept control over appointments and promotions despite the introduction of the Commissioner. The Public Service Commissioner could only make recommendations to the Governor in Council, not make decisions himself.275 In addition, s.7(1) of the Public Service Act 1922 allowed the Governor in Council to ignore a recommendation from the Public Service Commissioner, or act of its own accord. In line with the Premier’s reasons, ministers had the power, but delegated the work they had insufficient time to deal with to the Commissioner. The Commissioner would do the research and provide the Cabinet with recommendations for their approval or rejection. However, the Premier denied that Cabinet would override the Commissioner: “The Government, of course, will adopt the recommendations of the Public Service Commissioner. Ministers are not so prone to take on responsibility and unnecessary duties to go against the Commissioner.”276 The Premier may have been correct in relation to routine decisions, but the opportunity was available to intervene in decision making in the interests of the party in office meant it was expedient to do so.

269 S.18(3)(v) 270 Theodore, QPD, 28 September 1922, p.1997. 271 S.19 Public Service Act 1922 272 S.42 & 46 Public Service Act 1922. The 1923 regulation gave permanent heads the power to make minor appointments. 273 Whitehouse & Wiltshire 1987, op cit, p.75. 274 Howatson 1988, op cit, p.9. 275 Public Service Act 1922, s.14. 276 Theodore, QPD, 28 September 1922, p.2007

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Despite these Cabinet powers, McKracken denied that patronage existed in the service: 34. Contrary to belief in some quarters, service appointments are clear of any consideration of patronage either political or otherwise. Patronage at all times and in all services is a prolific breeder of discontent. Staff appointments and promotions are made solely on merit and where two officers are equally efficient then the senior officer is promoted. 36. Appointees to all positions, whether permanent or temporary, should be thoroughly efficient men and women who possess the required experience and, in particular, have a sound knowledge of their own calling or position. 277

It is extremely difficult to test the accuracy of McKracken’s claims. The parliamentary opposition tried to scuttle government denials of wrongdoing. First, Vowles claimed that an official called Dunlop was promoted out of political favouritism, over the heads of longer serving, and higher paid, police magistrates. He said the government relied on the fact that no appeals could be made against the position to ensure it went unchallenged.278 Second, Vowles alleged that the government was not meeting its reporting obligations to Parliament in relation to special appointments. The Premier countered saying that no such appointments had been made, which was not accepted by the Leader of the Opposition.279 Finally, in relation to appeals against appointments, Vowles noted that since the 1920 arrangements were introduced, only one appeal had been upheld by the Board and that that appeal was eventually blocked by the Governor in Council.280

Ministers could still exercise patronage in relation to two areas which were exempt from the Commissioner’s oversight. These were the Governor in Council control over senior appointments and the ability of the Minister for Education to appoint and transfer teachers.281

The Commissioner took over responsibility for discipline. The Premier said “Fortunately, in the Queensland public service, considering the large number of departments and the greater number of officers employed, [offences] are not very frequent…”282 Story said: “…regulations are framed to meet the requirements of the service – and that is as it should be; the individual should conform to the regulation, the regulation should not be adapted to suit the individual.”283 However, the unfitness clause remained and the Act added equally vague words making it an offence to engage in “disgraceful or improper”

277 McCracken 1943, op cit. 278 Vowles, QPD, 28 September 1922, p.2002. 279 QPD, 28 September 1922, p.2000. 280 Vowles, QPD, 28 September 1922, p.2001; Story 1921, op cit, p.17. 281 Story 1923, op cit, pp.3-4; Colley 2004, op cit., p.145. 282 Theodore, QPD, 28 September 1922, p.1999. 283 Story J 1922 Second Annual Report of the Public Service Commissioner, Being the Report for the Year Ended 30th June 1922, Government Printer, Brisbane, p.27.

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conduct.284 The departmental head retained the power to deal with minor offences,285 but the Commissioner could investigate any allegation of misconduct.286 The greatest issue with discipline, like management, was lack of enthusiasm within agencies to take action. McCracken complained that people avoided taking responsibility for bringing offenders to judgement and preferred cover-ups and transfers. As he said: “…there are times when somebody has to be hurt and someone has to do the hurting…”287

In practice, the ministry was ultimately in control of discipline, through Governor in Council approval requirements for disciplinary penalties. The government’s attempts to stamp out the release of embarrassing information demonstrates their determination. In 1936 the Vagrants, Gaming and Other Offences Act was amended to make it an offence for a person to induce a public official to leak the contents of a confidential Bill before the House, in reality Cabinet, approved its publication. This offence arose out of the leakage of contents of the Racecourses Acts and Other Acts Amendment Bill to The Courier Mail. While the clause was never applied and was removed in 1952, neither the Opposition nor the press complained about the right of the government to punish a public official for leaking, rather they only cared that the press should not be inhibited from printing the material once leaked.288

The most significant example of government protection of information was the Creighton Affair. In 1956 the Townley Royal Commission into maladministration in the Lands Department took place. This Commission investigated claims made in The Worker of ministerial misconduct in relations to land dealings. It was revealed at the inquiry that Vivian Creighton, Chairman of the Land Administration Board, had provided the information to The Worker. While the minister involved was charged,289 the Labor Cabinet decided that the whistleblower had to be removed. The Land Administration Act prevented his sacking unless he appeared at the Bar of the Legislative Assembly.

While presenting the case against Creighton in the House, the new minister said this action was taken because Creighton had a “personal antagonism” against the former minister and made false claims in his letters to the journalist in The Worker. Lack summarised these charges as “treachery to Her Majesty’s Ministers, and of unconscionable and unjustified conduct”.290 The minister claimed that it would have been

284 Public Service Act 1922, s.32(1)(vii). 285 Public Service Act 1922, s.32(2). 286 Public Service Act 1922, s.34. 287 McCracken 1942, op cit, para.45-46. 288 Lack C 1961 Three Decades of Queensland Political History 1929-1960, Queensland Government Printer, Brisbane, pp.148-150. 289 His case was thrown out by the Magistrate and he was later re-elected with an increased majority. 290 Lack 1961, op cit, p.455.

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more appropriate for Creighton to advise the Governor in Council, the Premier or the Parliament. In his reply, Creighton pointed out that, he had advised the Premier, via two other ministers, in 1954. He decided to tell the newspaper as the government had not taken any action: “Find me guilty of treachery to Her Majesty’s Ministers if you will, but neither that nor anything you may do will make me guilty of any breach of the higher loyalty which I at all times owed to the public of this State.”291

The government claimed that Creighton failed to meet his duty of loyalty. Predictably, the Opposition supported Creighton’s case pointing out that Cabinet and the Labor Caucus had prejudged him before he faced the Parliament. The Premier, Vince Gair, retaliated pointing out that Creighton had told untruths about the government in his expose and therefore breached the trust of the Government and the people of the State. Interestingly some Opposition members did not support Creighton. Two Liberal and three Country Party MLA’s withdrew from the vote. One of them, Gordon Chalk, noted that he could not support Creighton but that while the Government retained the former minister as a member he also could not vote with them.292

Creighton only had suspicions of corruption. He said he took his story to The Worker because he could see that the Minister was departing from government policy and making decisions which were against the public interest. The question was whether the public official could decide that the actions of the government were not in the public interest or whether that was solely a matter for the government. As Parker pointed out, under the Westminster system, the government is generally secure from censure except when faced with an election. While it is not the role of the public official to second guess the government or to impose their own interpretation of the public interest, under Westminster conventions, an official who disagrees with government actions has no recourse other than resignation. He contended that releasing confidential information would be a breach of trust, especially when, as in this case, the official has not confronted the minister on the issue. The official: …should remain, in his official acts, neutral, anonymous, and loyal to the Minister, exception only where the Minister, despite official dissent and warnings, seems deliberately to be pursing a course involving either departmental inconsistency and favouritism in the treatment of individual citizens, or outright corruption, or bringing the Department and its officials into disrepute.293

In conclusion, the government was able to subvert the ostensibly honest system. This process commenced by the 1923 government fiat transferring temporary staff, previously

291 Creighton quoted in Lack 1961, op cit, p.456. 292 For a full discussion of the debate see Lack 1961, op cit, pp.453-460, or for the full 14 ½ hours of debate, see QPD, Vol. 214 1956-57, p.32 et seq. 293 Parker R S 1965 ‘Public Service Neutrality: A Moral Problem – The Creighton Case,’ in Schaffer B & Corbett D (eds) Decisions: Case Studies in Australian Administration, F W Cheshire, Sydney, pp,.201-224, at p.219.

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appointed by ministers without oversight, into full time positions. Second, Cabinet kept final say on all important decisions and could ignore the Public Service Commissioner or act without his support. Finally, the Governor in Council could control discipline and the vagueness introduced by “disgraceful or improper” conduct provision worked to the government’s advantage by allowing considerable leeway for interpretation.

4.1.3 Conclusion The period of the public service commissioners improved the integrity of the system of the public service administration in Queensland. While ministers retained control over the appointment of senior officers and final decision making power over the public sector, the size of the employment pool removed their ability to become involved in every appointment or promotion. These decisions become the responsibility of a full time commissioner.

The service continued to reflect the provision of full male suffrage but failed to pass on the same advantages to women with the advent of full adult female suffrage. In order to maintain the concept of the nuclear family headed by a male breadwinner, women were only reluctantly accepted into the service. Every female employed was seen as putting a man out of work and depriving a family of an income.

The Commissioners reinforced, what Downs would have regarded as a rational notion, that the public service should produce the greatest benefits for the least investment. They tried to remind officials that holders of secure and well paid public service positions owed a debt to the community that they had to repay with good service. Story was unsuccessful in trying to remove automatic allocation of increments and the reliance on seniority for promotions. Finally, Story also attempted to reduce the silo mentality of individual agencies in favour of a sector-wide approach.

Meanwhile the various ministers continued to retain a position of control over the system. The Commissioner was always under the potential direction of the Cabinet. At the same time as ministers touted the integrity of the Public Service Act 1922, they were acting in their own interest. This self-interest has been demonstrated in examples such as the battle over compulsory unionism and the attempts to ensure government control over embarrassing information.

4.2 Changes during the Bjelke-Petersen years The longest serving Queensland Premier, Sir Johannes Bjelke-Petersen, presents a quandary. During his reign as Premier from the late 1960s to 1987, he introduced significant changes which apparently improved the quality of public service and increased

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the accountability of the government. However, whether or not he was personally corrupt, Bjelke-Petersen presided over corrupt practices. These sides to his character appear contradictory, but an application of Downsian theory helps clarify the situation. Accountability is only a danger if it reduces the chance of re-election; improvements in accountability that do not draw attention to government misconduct do not threaten the chances of that government being re-elected. The ethics regime established during his term as premier would not have discovered the nature of misconduct being conducted during the Bjelke-Petersen years. The Bjelke-Petersen era saw a flowering of corruption within the public sector, endangering the government. Bjelke-Petersen dealt with this by bringing the public sector under the close control of the ministry, controlling the flow of potentially damaging information.

This section will deal with four key Bjelke-Petersen initiatives and issues: • The Public Service Act Amendment Act 1968; • The establishment of the Ombudsman; • Police corruption; and • Criticism of the National Party government.

4.2.1 Public Service Act Amendment Act 1968 The Public Service Act Amendment Act 1968 enshrined the first major changes in Queensland public service management since 1922.294 According to the Deputy Premier, Gordon Chalk, new arrangements were needed because of “increased activity in promoting the development of the State’s economy, expanding government programmes, technological changes, and the growing complexity of public administration.”295 Thus, the government wanted greater efficiency, or more services for less money.

The new arrangements included a three member Public Service Board with the Chair also performing the role of agency head of the Board’s administrative arm. The Board continued the same role as the functions of the former Public Service Commissioner.296 The amendments also provided for reviews of agencies of a “positive cooperative” nature to identify areas where there could be improvements rather than of a “negative inspectorial” nature which looked for faults.

294 Joh Bjelke-Petersen was Premier at the time but was ill the day of the Second Reading Speech, so the Bill was introduced by Sir Gordon Chalk. 295 Howatson 1988, op cit, p.43. 296 Section 7A.

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Many members of public sector unions saw the role of the Board as vague and suspected that it was only a tool of the Cabinet and key select department heads.297 Whatever their suspicions, the ministry made the final decisions over appointments, promotions and discipline.

After the passage of the Amendment Act, the government implemented three major changes to the criteria for merit. First, the Bjelke-Petersen government improved the employment opportunities for women within the Queensland Public Sector. In 1969 the government removed the ‘marriage bar’ which had required female employees to resign when they became married. By 1973 women who held a senior certificate were no longer restricted to administrative and typing duties, and could apply to sit the entrance exam on the same footing as men.298 Second, in 1983 the requirement that union members have a preference for employment in the public sector was repealed.299 Finally, senior officers were removed from the award and their appointments, salary and reclassification were no longer published in the government gazette.300 Their employment arrangements were under ministerial control. The removal of an officer from the award usually increased the flexibility of the appointment but reduced employment protection. However, senior officers were relatively unaffected by being removed from an award, as their remuneration and conditions were far above the awards’ minimum standards. But the government’s decision to end public notification of appointments and terms of employment diminished accountability. Contracts are more useful as a tool for a government to control events if they are not subject to public scrutiny. They provided an opportunity for patronage through undisclosed contractual arrangements hidden behind the veil of privacy or commercial confidentiality. In the Bjelke-Petersen system, the appointments were not even recorded in the government Gazette. Thus the public was not even notified of a contract’s existence let alone its contents.

Contracts have both good and bad outcomes. Contracts provide security for the short term and compensation on termination. But the minister’s control over reappointment provides a strong influence over the officer’s behaviour. This perennial argument relates to the balance between management efficiency and public sector independence. Arguments regarding the fairness of contracts in public sector employment mainly revolved around the loss of security through the loss of tenure as against the managerial perspective of removing a non-performing officer through non-renewal of a contract. However, this argument is only credible in a service in which a person must choose

297 Colley 2004 op cit, pp.172-174. Her conclusion is based on interviews with key players in industrial relations. 298 Queensland Government Gazette, 22 December 1973, p.2089. 299 This purely political step was taken in defiance of a ruling of the Queensland Industrial Commission. (Colley 2004, op cit, p.170) 300 Ibid, p.176.

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between contracts and tenure. Tenure has never existed in Queensland for public servants.

A tenured employee can be sacked only under specific terms usually about misconduct or incapacity. While a Queensland public official could be removed from office for these reasons, they have never been the exclusive triggers for termination. The various pieces of legislation have never provided a direct link between offences and punishment. Thus there has never been a list of offences that result in termination. Consequently, it was possible for staff to have their employment terminated as a punishment for minor disciplinary matters, or alternatively be kept on the payroll despite an egregious offence.301 The existence of a right of appeal against a decision to dismiss an officer may improve protection from arbitrary dismissal, but it is not the same as having tenure. The government has always been able to reduce the number of staff in the public sector. The two most famous instances were during the depressions of the 1890s and 1920s. In this circumstance it could be argued that a contract provided greater protection for an employee, because, at least for the duration of employment, they could only be sacked for breach of contract.

In conclusion, the government corrected the pay and employment limitations on women in the Queensland public service to give effect to a change in the public perception of equality. However, it reducing the power of unions in the public sector and introducing contracting for senior staff to commence its move towards reliance on private sector values.

4.2.2 Ombudsman The first Queensland Ombudsman, or Parliamentary Commissioner for Administrative Investigations, as he was titled at the time, was appointed under the Parliamentary Commissioner Act 1974. The Commissioner was an independent statutory officer who reported to the Parliament and supporting staff of the Office of the Queensland Ombudsman.302 The Office’s roles included investigating maladministration to ensure administrative justice and improve the quality of public administration. The Office could investigate issues on its own motion, or Parliamentary direction, or issues raised by a public complaint. The Commissioner had to determine whether the decision/action was “unreasonable, unjust, oppressive, improperly discriminatory, or based on a mistake of law or fact, or was simply wrong.”

301 It would not be feasible in the resources of this thesis or the passage of time to establish whether such action had occurred. 302 The title was changed to Ombudsman under the Ombudsman Act 2001. The 2001 Act also implemented management and process changes following several reviews of the organisation. It did not make any significant changes to the powers of the Ombudsman.

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Sir David Longland, the Ombudsman in the 1970’s, and former Commissioner of the Public Service Board, saw the office as being very beneficial: The office of Ombudsman has psychological as well as practical value. His office gives the citizen confidence that there exists a watch-dog for the people that will hold the administrator accountable. In short, there is available to an individual with grievance against authority a confidential and impartial agent without personal cost to the complainant, without unnecessary time delay, without the tension of adversary litigation and without the requirement of counsel or the intercession of those who are highly placed.303

Legislation of this type would appear to be irrational because exposure of mismanagement would not assist a government to be re-elected. However, the Ombudsman’s role and power are fundamental limited to ensure it did not interfere with the Bjelke-Petersen government or subsequent administrations. The Ombudsman’s investigative power does not extend to Ministerial or Cabinet decisions, as investigations of this nature would interfere with ministerial responsibility. Thus ministers are immune from the operation of the investigators. Moreover, the Ombudsman can only identify an error and recommend changes to government process; the Ombudsman does not have the power to set aside or alter a decision or even to stay a decision for the duration of the investigation.304

Although the Ombudsman is non-intrusive, the Coalition was wary of its introduction. It took nearly a decade of National-Liberal coalition promises before the government introduced the legislation.305 The Bill was intended to “protect the rights of citizens and the reputation of the Public Service…”306 The government claimed that the Bill responded to an increase in central control of government. They believed that it was no longer practical to rely on the traditional system of allowing parliamentarians to approach the department to address a constituent’s concerns.307 Crawford said the legislation was “… a measure designed to protect the individual, who has, in an increasingly bureaucracy- oriented (sic) society, less and less ability to protect himself,”308 thus implying that the task of providing protection would also be beyond the means of parliamentarians. In

303 Longland Sir David 1977 ‘Public Administration Today,’ extracted in Endowed Lectures 1974- 1979, Royal Institute of Public Administration, Queensland Regional Group, Brisbane, pp.19-23, at p.19. 304 The Ombudsman cannot enforce a recommendation. Historically, there has not been any move to obtain such a power as 95% of recommendations are satisfactorily implemented by agencies and also there is a view that having such a power would add an adversarial legal element to the process. Dixon N 2001 The Ombudsman Bill 2001 (Qld): Research Brief No 2001/28, Queensland Parliamentary Library, Brisbane, pp.18-19. 305 Bjelke-Petersen, QPD, 4 April 1974, p.3607. The initiative was first promised in the 1966 election campaign. In 1968 a parliamentary committee was established to examine the issue. The Premier said the delay occurred because: “Prior to the 1972 election the Government parties were not interested in appointing an ombudsman.” 306 Bjelke-Petersen, QPD,, 4 April 1974, p.3607. 307 Houston, QPD, 4 April 1974, p.3608. 308 Crawford, QPD, 4 April 1974, p.3614.

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practice a compromise has developed under which many constituents take their problem to their local member, who assists them to deal with the Ombudsman’s office to seek a resolution.309 Thus the government was able to present the public with genuine reform. They addressed electors’ concerns without endangering re-election chances.

However, in summary, the government had little to fear from the Ombudsman. Other than the exposure of maladministration, misconduct and crime are not its focus. On the one hand, the Ombudsman’s independence reduces direct interference in his/her role. Being an officer of the Parliament, the Executive has little means of coercing the officer or the officers of the Agency. There was certainly potential for the Ombudsman to embarrass the government through a report, but in a large government, maladministration is rarely fatal to the ministry which can scapegoat line management for the poor performance.

4.2.3 Police Corruption Studies of misconduct in Queensland have focused on the police and politicians as the traditional practitioners of corruption. While this is not the subject of this thesis, police corruption can be seen as exemplifying how corruption comes to be. The clandestine nature of corruption means that no records can establish its existence and studies have necessarily relied upon hearsay. For example, Whitton describes a period in the early part of the century when corruption was the norm in rural communities. Describing the life of the country police officer he said: The pay wasn’t good, but ancillary emoluments were, particularly in the outback, where endemic corruption had an almost oriental dimension: the sergeant got his beef from the grazier, his liquor from the publican, and his walking around money from the illegal (starting price) bookmaker by way of the odds to a nominal five pounds on the winner of the last race in Melbourne.310

After an extended period of Labor Party government in the first half of the twentieth century, the “Green Mafia”, Irish Catholics, had control of the police force. Already there was a strongly entrenched corrupt culture which reinforced illegal practices, as noted in the Fitzgerald Report: In the late 1940’s and early 1950’s, those who were later to become senior Queensland Police officers and senior office bearers in the Queensland Police Unions, joined the Force. It was then a much smaller body. Those impressionable young men became exposed to the practices which then prevailed, including the corruption which some of them joined. All were undoubtedly influenced by the environment and the attitudes which they encountered. The options available to a police officer who wished to continue in the Police Force were limited to accepting that politicians and selected police were not only engaged in corruption but beyond the law. He could either join in if

309 For example see, Horan, QPD, 7 November 2001, p.3457. 310 Whitton E 1989 The Hillbilly Dictator: Australia’s Police State, Australian Broadcasting Corporation, Crows Nest, NSW, p.4.

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invited, or ignore what was occurring and perform his duty as well as possible in the circumstances.311

The Report explained that officers became increasingly cynical because there was no avenue to stop the corruption. When the National Party came to power in 1957 the Police Commissioner, Francis Bischof (a Mason), was an active participant in receiving corrupt payments from illegal gambling operations and prostitution, with the Licensing Branch and Consorting Squad. Fitzgerald recounts that, so strong was the network that an officer who wanted to raid a brothel had to keep it secret within the Licensing Branch to ensure that corrupt officers did not tip off the target.312 Jack Herbert, bagman for many corrupt police, estimated that when he joined the Licensing Branch about half of the officers were involved in the protection system for Starting Price bookmakers, which was referred to as “The Joke”.313 Herbert became the organiser and recruiter in 1964. “Every single officer whom Herbert approached to join in the joke agreed to do so quite willingly.”314 By 1970 Herbert was receiving almost twice his salary in corrupt payments each year.315

Ray Whitrod, the Queensland Police Commissioner from 1970 to 1976, claimed he battled three groups: the Irish, the anti-Irish and the Squattocracy. He said his appointment as a neutral administrator was not seen as a stabilising influence on the constant battles between these groups, but as a lost opportunity for advancement of each of their causes. He also had to deal with Bjelke-Petersen’s personal authoritarianism.316 Whitrod suggests that the National Party benefited from corruption through SP bookmakers’ payments. A portion of the payments were passed to the party as a donation. “If the police controlled the inflow of ‘slush funds’ to parliamentarians, they also strongly influenced voting in Cabinet.”317 He also upset parliamentarians, even those who supported him, when he refuse the time honoured practice of ‘taking care’ of their traffic fines.318

311 Fitzgerald G E 1989, Report of a Commission of Inquiry Pursuant to Orders in Council, Queensland Parliament, p.31. 312 ibid, p.31. 313 ibid, p.32. 314 ibid, p.33; Herbert J & Gilling T 2004 The Bagman: Final Confessions of Jack Herbert, ABC Books, Sydney. 315 ibid. 316 Whitrod R 2001 Before I Sleep: Memoirs of a Modern Police Commissioner, University of Queensland Press, Brisbane, p.141. He notes that the groups lived by the slogan “if you are not with us your against us”. He upset the squattocracy by refusing membership to “an exclusive racing club.” (p.153) He further claims this attitude continued after he left office, as Queensland government officials opposed him being appointed as a researcher at the Australian Institute of Criminology in Canberra (p.166). 317 ibid, p.155. Whitrod does not name the National Party. But given he states that the police influenced Cabinet, one has to assume he believed that they were beneficiaries of this scheme. Whitrod says the network was discovered in 1964, by the Treasurer, Sir Thomas Hiley. He attempted to stop the practice but was obviously unsuccessful. 318 ibid, pp.156-157.

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Whitrod had been hired to implement the recommendations of South Australian Police Commissioner, John McKinna’s report into the Queensland Police. Although Cabinet approved the recommendations, the Premier regularly intervened to hamper Whitrod’s attempts to implement the policy. He said the Premier was particularly interfering when it came to the recommendation for the removal of strict seniority and the imposition of merit selection for promotion within the police service.319

Whitrod also noted that he did not receive support from the public, the press (apart from the ABC) or the independent professional bodies, such as the Bar Association. His key opponents were the Queensland Police Union, made up entirely of members of the Green Mafia, and the Premier. Whitrod alleged that the Union communicated directly with the Premier who subsequently overrode the Commissioner’s decisions in favour of the Union’s demands.320 The Fitzgerald Report backed up some of his claims.321 Whitrod summarises his position by stating: “It became increasingly clear that my code of strict honesty did not have general appeal to Queenslanders, and without a community base I could not win.”322

Chapters two and three of the Fitzgerald Report and the recollections of the former Commissioner of Police presented evidence that Sir Joh was willing to circumvent accountability and honesty to meet his rational Downsian goals. In particular, he secured personal advantage through private deals and undisclosed conflicts of interest, and was able to conceal actions which were breaches of government policy and potentially criminal.

4.2.4 Other criticism The Fitzgerald Report did not say that the public service was corrupt but outlined an argument that there was a highly politicised public service which needed to be reformed.323 Similar criticisms come from the Opposition and academic analysts.

319 ibid, p.139. Seniority meant that most officers ended their careers on at least an Inspector’s salary. The advantage of the system was that the various factions could not complain when one of their opponents was promoted and it also meant that honest officers were able to move up the ranks without interference. (pp.152-153) Officers used to receive “gifts” from various people in the community. This supported by corruption as those below them watched what they would get with the knowledge that, should they act accordingly, they would receive the same presents at their retirement. 320 ibid, p.148. His initiatives in Fortitude Valley were ineffective. He claims part of the reason for the failure was because uniform officers knew that the local member Don Lane, supported their “inaction”. 321 See Fitzgerald 1989, op cit, pp.35-46. 322 Whitrod 2001, op cit, p.140. At p.144 he notes that even the Police Christian Federation and the International Police Association refused to become involved political questions. He blames this on the supineness of Queensland’s rural culture (pp.158-159). 323 Fitzgerald 1989, op cit, pp.129-131.

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The most often referenced source for this assertion is Peter Coaldrake’s Working the System: Government in Queensland, which was written before the 1989 change of government.324 Coaldrake outlined several criticisms of the pre-Goss public sector covering both Bjelke-Petersen and Ahern. First, outsiders were rarely employed within the system. Coaldrake saw this lack of new blood as the creation of a closed shop. Second, Coaldrake complains that length of service, or seniority, was the primary means of advancement. Third, Coaldrake says that “talented” young men were selected for the fast track. He avoids direct allegations of favouritism but clearly states that preference in advancement is given to those who have worked in a ministerial office. Some advanced extremely fast “even allowing for the talent of the employees.” Fourth was Cabinet’s approval of all appointments down to middle management. Coaldrake did not allege patronage had taken place but suggested Cabinet should have taken the opportunity to correct the non-advertisement of positions. Finally, Coaldrake complained officials did not advocate changes which would threaten their relationship with the minister tying their own success to that of the government. This was the phenomenon identified by Fitzgerald as politicisation.325

The other main source of criticism of the pre-Fitzgerald public service was the Labor Party platform on Public Sector Reform, Making Government Work: Public Sector Reform Under a Goss Government, which was written in cooperation with another academic, Glyn Davis. According to this document, not only was there political interference in the public sector, and therefore a breakdown of officials’ ability to provide full and frank advice, but the organisation itself was long overdue for structural reform and coordination.326 … a Goss Labor government will herald an end to patronage and cronyism and a return to professionalism, the reintroduction of merit as the only principle of recruitment and promotion, along with restructuring of departments to ensure greater efficiency and effectiveness.327

They claimed politicisation of departments, cronyism, and no understanding of the difference between “politics and administration” thus risking the objectivity and neutrality of the public service. 328

324 Coaldrake P 1989 Working the System: Government in Queensland, University of Queensland Press, Brisbane. ; cf: Hede, A 1993 ‘Managerial and Equity Reform of the Public Service,’ in Stevens B & Wanna J (eds.) The Goss Government: Promise and Performance of Labor in Queensland, MacMillan Education Australia Ltd, Melbourne, pp.87-105, at pp.100-101. 325 Coaldrake 1989, op cit, pp.71-81 326 Goss W 1989 Making Government Work: Public Sector Reform Under a Goss Government, Australian Labor Party Queensland, Brisbane. 327 ibid, p.1. 328 ibid, p.3.

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4.2.4.1 Closed Shop The closed shop criticism identified a loss of benefits to the public through lack of opportunities for innovation within the public sector. Coaldrake said staff felt that the agency was their employer rather than the government. This built “strong loyalties to their organisation and colleagues.”329 But he did not explain why these loyalties are a negative aspect of service. Second, he said staff became compartmentalised in their agency. Life became predictable and they “had a clear sense of what the State Government expected.”

The argument can be criticised on two points. First, allowance has always been made for the entry of external persons and the provision of new ideas through temporary external transfers of staff. New ideas were introduced to the sector by sending current staff to visit other organisations, especially those overseas, and through employment of external staff when new skills were required. Giving existing staff exclusive access to internal promotional opportunities supported a policy of ensuring loyalty.330 However, Coaldrake presented two pieces of evidence supporting his claim that the Queensland public service was a closed shop. First, outsiders were rarely employed within the system. Appointments other than from high school and university graduates were discouraged. Internal rules excluded positions from being made available to external applicants. Second, Queensland did not recognise the accrued entitlements of new staff from other public services.331 But these are methods of introducing new staff not new ideas. The provision of one is not contingent on the provision of the other.

Second, Coaldrake’s argument against the closed shop contradicts his own demands for responsiveness. This period marks the beginning of a long debate over public service responsiveness, which still continues in Queensland today. The core of this issue is that the public sector should be responsive, that is, do what the public wants, by carrying out the will of the elected government. Senior officials who will not obey the government should be removed and replaced with responsive officials who will work cooperatively with the government. Staff should effectively and efficiently meet the demands of the ministry. It is contradictory for Coaldrake to support responsiveness yet oppose the attitudes a closed shop produces, namely, strong loyalty and meeting government expectations. These attributes appear to constitute responsiveness, and therefore, should be regarded as a good outcome.

329 Coaldrake P, Davis G & Shand D 1992 ‘Public Sector Reform in Queensland,’ in Nethercote J et al, (eds.) Decision Making in Queensland Government, Federalism Research Centre, Canberra, p.11. 330 See Story 1927, op cit, p.43-44, in which, under the heading “Departmental Inbreeding” he discusses the problem of a closed shop and suggests: “Far-seeing concerns meet the situation by sending their principals aborad periodically to see the progress elsewhere and to keep them in touch with late ideas and fresh thought.” 331 Coaldrake 1989, op cit, p.73.

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Coaldrake argued that closed shops resulted in poor cooperation between agencies.332 Wanna agreed that there was a “high degree of parochialism and traditionalism characterising the Queensland public service”333 Neither of the authors provided evidence supporting their conclusions. However, if they are true, they also contradict Coaldrake’s later support for decentralised decision making which would isolate agencies and reduce uniformity.

When he became Premier, Wayne Goss said his government had to bring in officers from other jurisdictions and the private sector to re-energise the public sector. This was necessary because: “The Government inherited a public service that was moribund and had serious problems in terms of inefficiency, morale and so on.”334 He gave no evidence of how this judgement was reached, nor how bringing in new staff will improve efficiency or morale.

In conclusion, Coaldrake claimed that the ‘closed shop’ was endemic under the National Party and that this policy was detrimental because staff would become too close to their ministerial employers. This allegation was not well founded in that the closed shop did not restrict employment but had some foundations in relation to the introduction of new ideas. Coaldrake’s complaints about the relationship between staff and ministers reflected his own policy of building responsiveness in the service.

4.2.4.2 Seniority Coaldrake complained that length of service, or seniority, was the primary means of advancement. Coaldrake’s opposition to seniority was based on the belief that it may take one person longer to learn something than someone else, and the fast learner should be promoted faster. However, there are two problems with this thesis. First, Queensland seniority was based on salary rather than time. As Story explained in 1923: “Seniority” is determined mainly by the relative values of the positions held and the salaries drawn by the officers whose claims are under consideration. Length of service does not enter into the question unless the officers are equal in respect of value of positions held and salaries drawn.335

Second, seniority was only one consideration in appointments and then, at least officially, was not paramount. The first section of this Chapter highlighted many of Story and his successor, McCracken’s, statements that merit rather than seniority was the criteria for promotion: “If progress is to be achieved in Service administration and real efficiency

332 Coaldrake, Davis & Shand, 1992, op cit, p.12. 333 Wanna J ‘Trust, Distrust and Public Sector Reform: Labor’s Managerialism in Queensland,’ Policy Organisation and Society, Winter 1992, Special Trust Issue, p.79. 334 Goss, QPD, 29 March 1990, pp.982-986. 335 Story 1923, op cit, p.6.

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obtained, the higher qualifications and superior efficiency of the junior officer must outweigh the seniority of the older but less efficient officer.”336 This suggests that continued application of seniority resulted from public sector line managers practices, rather than government policy. If this is the case, then further law restating the pre- eminence of merit would have little effect when the problem was always one of implementation rather than policy.

4.2.4.3 Favouritism Coaldrake then contradicted his own claim of the supremacy of seniority, when he alleged that “talented” young men were selected for the fast track. He refers to forty-five former ministerial staffers who had received senior appointments. He claimed that some advanced extremely fast “even allowing for the talent of the employees.”337 Coaldrake said these advances were made possible by the ability of the Governor in Council to waive the need to advertise senior appointments.338 Coaldrake’s argument implies that the appointments were undeserved.

The selection of people for fast track promotion is hardly a sign of patronage if it is based on talent and necessity. At this time the Goss government’s version of an exclusive ministerial staff separated from the public service did not exist. Staff were transferred from their normal position within their agency to the minister’s office. If they performed well they were marked for further advancement. Appointment to a minister’s office was not dependent on party membership.

Coaldrake and the Opposition proposed as a solution to this alleged problem the introduction of ministerial staff distinct from the departmental staff whose tenure was only for the duration of their minister’s appointment. Appointments made by ministers rather than the department, provided opportunities for patronage. More importantly, they would have a direct vested interest in the success of their minister. This is the same employment arrangement that Coaldrake complained about under the National Party and said needed to be removed.

Coaldrake’s case for favouritism is weak. He appears to have relied on suggestions and inferences to support his case rather than adducing direct evidence.339 He would later support the introduction of ministerial appointments, replicating the issues that were at the centre of his complaints.

336 McCracken 1942 op cit, p.3. The following annual report states seniority only matters when the two officers are equally efficient. 337 Coaldrake 1989, op cit, pp.73-75. 338 ibid, p.76. 339 The failure of Coaldrake to prove favouritism should not be read as proof that it did not occur. Nonetheless, substantive evidence of favouritism has not been presented in the public arena.

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4.2.4.4 Patronage The power of patronage has already been established in this chapter. Coaldrake was correct in his assessment on that point. However, he only demonstrated an avenue existed for patronage but did not prove it had occurred. However, other authors then relied on his book as evidence that patronage was rife under the Nationals. For example, Wanna340 uses Coaldrake as a source to support his accusation of public service corruption. When referring to Goss government changes made, Wanna said the new Labor government policy “entailed dismantling the previous system of interpersonal trust relations based on patronage, and replacing it with a system based on impersonal relations where abstract rules and conditions of service shaped the public sector culture.”341 Wanna claimed that the National Party had operated patronage in the same manner as medieval kings: establishing a vested interest in the success of their masters to build loyalty: Under the previous bureaucratic culture, trust relations and cooperation between administrators and the government were premised on familiarity and patronage and on the understanding that overt risks (e.g., poor or embarrassing decisions) would be mitigated by political protection (risk-defensiveness). The new managerialist reforms instead were intended to encourage trust and commitment in the abstract systems of management based on formal procedures and rational calculations.342

Wanna provided no evidence for this claim.

The 1989 Labor Party platform on Public Sector Reform343 claimed there was political interference in the public sector and therefore a breakdown of officials’ ability to provide full and frank advice.344 Once again, no evidence was provided in support of the allegations.

Coaldrake said under the pre-Fitzgerald system officials shied away from advocating proposals which could threaten their relationship with their minister thereby linking their own success to that of the government.345 He then discussed collusion between ministers and their staff to rort expenses, inferring from this that public servants would have known of the misuse of funds but nonetheless approved the expenditure. He claimed this resulted in a “conspiracy of silence” to conceal evidence of malfeasance from other officers and auditors. He alleges acquiescence was quid pro quo for career advancement, as public officials tie their fortunes to the National Party’s reign which was

340 Wanna 1992, op cit. 341 ibid, p.74. 342 ibid, p.79. 343 The policy was written in cooperation with another academic, Dr Glyn Davis. 344 Goss 1989, op cit. 345 Coaldrake 1989, op cit, pp.71-81

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in turn underwritten by electoral rorts known as the ‘gerrymander’.346 Again, this assertion is unsupported by evidence. It is highly likely that this is true of any government. Public officials are no more likely to imperil their career prospects than anyone else.

In a later article Coaldrake alleged that staff were willing to simply do ‘what the minister wants’ to back up his claims of politicisation.347 Two problems exist within this argument. First, he provided no evidence in the article that this attitude existed other than sourcing his own earlier unsupported allegations in Working the System. Second, if it were true that public officials carry out ministers’ directions then it is difficult to see what was unethical. In the same article, Coaldrake proposed that the work of the Senior Executive Service “had a political dimension.” While members of the Senior Executive Service should not become politically active, a “highly developed professional sensitivity and responsiveness to the policy directions of the government of the day is in our view a legitimate, even desirable, aspect of merit for most positions at the SES level.”348 According to Coaldrake then, staff were to determine the difference between doing what the minister wanted and being responsive to the government’s policy directions. Coaldrake gave no guide to assist public servants making this casuistical distinction.

The ALP policy document proposed that a Labor government would “herald an end to patronage and cronyism and a return to professionalism, the reintroduction of merit as the only principle of recruitment and promotion…”349 It claimed that departments became politicised because politicians did not understand the distinction between political and administrative roles. Specifically, if politicians can influence appointments within the agencies it will lead to nepotism and cronyism. At another time Goss said “we have inherited a public sector that is a disgrace in terms of the effects of political meddling in administrative matters that should be the preserve of managers.”350

Wanna claimed that before the 1990s public officials hid behind professionalism in a manner reminiscent of an episode of Yes Minister: He said officials privileged specialists, discredited non-specialists and subordinates, sustained power relations and the mystique of authority and “patronage and traditionalism were the main basis of organisational commitment.” Consequently, professionals in departments were not responsive to government demands and “monopolised” policy.351 Once again, no evidence was

346 ibid, pp.77-80. 347 Coaldrake P & Whitton H 1996 ‘Is There Still a Need for a Career Senior Executive Service?’ in Weller P and Davis G (eds.) New Ideas, Better Government, Australian Fulbright Papers: 4, Centre for Australian Public Sector Management, Brisbane, pp.187-198, at p.191. 348 ibid, p.196. 349 Goss 1989, op cit., p.1 350 Goss, QPD, 6 November 1990, p.4376. 351 Wanna 1992, op cit, p.80.

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provided to support these allegations. Also, if it is correct that officials monopolised policy, it also follows that they were not under the influence of politicisation.

Claims of politicisation included transferring staff who belonged to the ALP or otherwise attacked the government. It was claimed that Martin Tenni, as Education Minister, would demand the removal of teachers he did not want in this electorate, and interfere with promotion and transfer.352 Labor politicians who left Parliament were barred from returning to the public service.353 Similarly, under the Crown Employees Act 1958, the government had the option of re-employing an officer who resigned their position to sit as a candidate in an election. Howatson says that Mal Colston “experienced difficulty obtaining re-employment” after running as a failed ALP senatorial candidate in 1974.354 Most common was the claim that you needed a ‘Green Card’, reference to the colour of the National Party membership card, if you wanted to get anywhere in the public sector. As Edmond complained: Before 1989, I received numerous calls from public servants who wanted to tell me of their frustration with a system that meant only National Party members could aspire to top jobs and that mainstream career public servants were overlooked constantly for promotions… I have not heard them calling for a return to the bad old days, when the green card was king and corruption ruled, when talent was replaced with bullyboys and apprehension of change was replaced with wholesale fear of retribution.355

Other examples of claims of the National Party government’s politicisation included that Quangos were established so they could be filled with National Party appointments,356 that Bjelke-Petersen used to move “discredited” senior staff out of front line positions,357 and that during the Joh years: “The Public Service became demoralised and intimidated, and innovation was at a premium.”358

Many claims were made that Bjelke-Petersen practiced patronage and also discriminated against officers who opposed his policies or belonged to the wrong political party. The allegations are numerous and appear well supported by, among other sources, the Fitzgerald Report. However, Coaldrake’s reasoning as to why the appointments were inappropriate reflects the reasons why he would later support a policy of responsive appointees to senior positions.

352 Power, QPD, 17 November 1994, pp.10450-10451. 353 Sullivan, QPD, 17 November 1994, p.10457. 354 Howatson 1988, op cit, p.38. 355 Edmond, QPD, 5 Septermber 1996, p.2536. See also Schwarton, p.2550. 356 Hayward, QPD, 29 March 1990, pp.938-945. 357 Innes, QPD, 29 March 1990, pp.945-950. 358 Wiltshire K 1992 ‘Reform of the Bureaucracy: An Assessment,’ in Hede A, Prasser S & Neylam M (eds.) Keeping Them Honest: Democratic Reform in Queensland, University of Queensland Press, pp.261-275, at p.262.

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4.2.4.5 Summary Coaldrake made several criticisms of the National party government. First, he claimed that the Queensland public service was closed to new ideas. This allegation was baseless: the closed shop restricted employment but not the introduction of new ideas. Also the complaints he made about relationships between staff and ministers appear to do no more than echo his own preferred policy of building responsiveness in the service. Second, Coaldrake claimed that seniority defined by time served was the main critereon for promotion. This criticism misrepresents the nature of seniority which was based on salary rather than time. It also ignored the policies and legislation that made it clear that promotion was based on merit. Finally, he alleged that politicisation was common in the Queensland public service under the Bjelke-Petersen government. The allegations are supported by later evidence. In relation to favouritism, however, he relied on suggestions and inferences to support his case rather than direct evidence. He later supported the introduction of the type of ministerial appointments he complained of in relation to Bjelke- Petersen. His complaints against politicisation also seem contradicted by his support for responsiveness.

4.2.5 Conclusion During the Bjelke-Petersen years the government made mistakes so egregious they that led to public examination of the administration of government. The National Party’s subsequent loss of the 1989 election provides evidence to support the thesis’ assertion that rational governments need to disguise wrongdoing if they want to improve their chances of re-election.

Sir Joh Bjelke-Petersen had commenced his term as Premier in a rational manner by instituting changes to make it appear that action was being taken to improve accountability: the improvements in employment equity and the establishment of the Ombudsman. However, the Ombudsman could only investigate maladministration, and was not in a position to uncover the type of corrupt behaviour the police and ministers conducted. Nor was the Ombudsman empowered to make decisions.

The Fitzgerald Report found on the basis of voluminous evidence that Bjelke-Petersen was willing to circumvent accountability and honesty to meet his (rational Downsian) goals. The police took the extreme rational position of improving their own benefits through corrupt receipt of bribes and illicit services and the Premier used his knowledge of these practices as a lever to secure the support of the police service. It was irrational for the National Party to allow the activities to continue without restraint. They grew so blatant that the public did not need a watchdog organization to reveal that corrupt activity was being undertaken. The public then acted rationally to secure their self-interest,

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putting an end to the behaviour that undermined the integrity of government by terminating its tenure through the ballot box.

The Fitzgerald Inquiry established that some police and ministers were corrupt. It did not establish that similar corruption was widespread in the public service. Nonetheless, academics and the Opposition made allegations of corrupt dealings between the government and the public service.

Coaldrake unfairly criticised the National Party Government for operating a ‘closed shop’ public service. The closed shop restricted employment but not the introduction of new ideas. Also he criticised close relationships between staff and ministers despite his own support for a similar policy. Second, Coaldrake mistook the nature of seniority as a factor of time rather than salary even though there were clear policies and legislation on this point. Coaldrake also alleged that Bjelke-Petersen had politicised the service but relied on suggestions and inferences to support his case. Coaldrake’s criticisms of politicisation appeared to also contradict his support for responsiveness as a desirable attribute in public service. Thus Coaldrake failed to support his criticisms with sound argument or evidence.

4.3 Fitzgerald Inquiry The Fitzgerald Report supported the recommendations of the Savage Report saying they were in line with modern management theory. Fitzgerald’s only criticisms were that some government positions were exempt from advertisement, appeals from appointments were limited and Governor in Council’s approval was required for senior appointments.359 Hede notes that reform of the latter practice was unlikely due to the need for a referendum to remove the requirement from the constitution.360

In May 1987, the Acting Premier, the Hon Bill Gunn, announced the formation of an inquiry into the allegations of corruption made in The Courier Mail and on the Four Corners program, ‘The Moonlight State’. Due to fortuitous absence of the Premier, the more virtuous personalities involved in the establishment of the inquiry were able to ensure that it had the scope and powers to be successful.361 This was not the first inquiry

359 Fitzgerald 1989, op cit, pp.131-132. 360 Hede 1993, op cit, p.101. No state referendums have succeeded in Queensland since 1910. 361 Fitzgerald 1989, op cit, pp.2-3. The terms of reference were even expanded on two occasions. Beattie (1996 The Window of Opportunity: The Fitzgerald Experiment and the Queensland Criminal Justice Commission 1987-1992, unpublished thesis, QUT) discusses in detail the political interactions which led to the establishment of the Inquiry, and makes a point of showing the determined efforts by many National Party ministers to expose the corruption. As he notes at p.43: “The appointment of Fitzgerald [a non-political choice]… is clear evidence that at least these ministers wanted a ‘fair dinkum’ Inquiry. Admittedly, not all ministers did, but a majority did.”

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into corruption in the Queensland police force, but it was the first not to be restricted by tight terms of reference. The Inquiry’s success was partly the result of its broad terms of reference, which the government twice extended following requests from Fitzgerald.362

The Fitzgerald Inquiry did not examine the public sector outside of the Queensland Police Force. Nonetheless it made general statements about how ill-equipped the sector was to identify or prevent corruption: The main object of this report and its recommendations is to bring about improved structures and systems… Many of those who have been involved, and whose misconduct is continuing, will never be detected or punished even by a permanent body, but they are less important than the pattern of which they form part, and which must now be changed.363

Fitzgerald later went on to say: Not only were wrong decisions made, but some are tainted by misconduct. That has been amply demonstrated by the evidence before this Inquiry. It has also clearly emerged that the structures and systems which exist and the practices and procedure which have been followed are not adequate to prevent or detect those errors and offences when they occur.364

The Inquiry’s recommendations relate to the examination and reform of the system rather than findings of guilt on the part of individuals. The investigation and charging of the latter were left to the Special Prosecutor, Doug Drummond QC. No charges were brought against any public servants outside the Queensland Police Force. The primary recommendations for reform were for the establishment of a Criminal Justice Commission (CJC) to investigate and research crime and misconduct and an Electoral and Administrative Review Commission (EARC) to examine the administrative structures in the state and recommend reforms. These bodies were themselves to be watched over by statutory Parliamentary committees.

But academic and media reactions exaggerated the findings. A contemporary article in The Bulletin said: “The corruption unearthed by Fitzgerald was on a scale unprecedented in Australia…”365 Coaldrake, Davis and Shand said: “Tony Fitzgerald came to question both the behaviour of the ruling National Party and the very legitimacy of the system which kept them in power.”366 It would be more accurate to state that Fitzgerald felt the system of government lacked the reforms of administration other jurisdictions had already implemented to improve accountability. Fitzgerald identified political and bureaucratic

362 Beattie 1996, op cit, pp.45-46. 363 Fitzgerald 1989, op cit, p.8. 364 ibid, pp.130-131. 365 Roberts G 1993 ‘Back on the Same Old Beat,’ The Bulletin 1 June 1993, p.30, extracted in Beattie 1996, op cit, p.49. 366 Coaldrake, Davis & Shand 1992, op cit. It is worth noting that when the article was written, all three authors were employed as Commissioners in the Public Sector Management Commission under the Goss Labor Government.

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vested interests opposed to reform.367 Consequently, his two mechanisms for accountability and reform, the EARC and CJC, would be independent of both the government and the bureaucracy.368

On a community level the Inquiry succeeded in ending public complacency about corruption. A complacent public can still care about the honesty of their public officials. However, they may cynically disbelieve that anything would or could be done to address corruption. The Inquiry also confirmed the possibility of corruption at a higher level than many Queensland voters may actually have believed existed.369 The evidence given in public to the Inquiry exposed the practical need for the modernisation of administrative law and procedures in a manner which the previous government had rejected as unnecessary. As Brereton notes: “The Inquiry… changed the way in which many Queenslanders viewed their government and the Queensland Police Service, altered the political complexion of the State and served as the stimulus to wide ranging institutional reform.”370

Nethercote was more critical and felt that Fitzgerald only dealt with the public sector in passing, leaving the issue for EARC to address. He noted: This really confirms a broad impression that Fitzgerald only has a tenuous grasp of the nature of public administration and its place in the machinery of government. His treatment betrays little sign that he has any significant concept of the respective roles of ministers and officials; the functions of cabinet, ministers and departments in decision-making and management; nor of appropriate administrative and personnel practices which could promote the values of ethics, integrity and fairness in government.371

Given that the Executive was not part of his terms of reference, Nethercote’s critique is unfair. Coaldrake, Davis and Shand similarly explain that the public sector escaped significant recommendations in the Report.372 Fitzgerald, however, recognised the limitations time and resources placed on his inquiry. The scope of work he defined for the Electoral and Administrative Reform Commission (EARC) included many topics relating to public administration.

367 Fitzgerald 1989, op cit, p.7. 368 Beattie 1996, op cit, p.58. 369 According to Beattie (ibid, p.37) this included many Cabinet colleagues of ministers who admitted corruption. 370 Brereton D 2000 ‘Improving Standards of Integrity in the Public Sector: The Queensland Experience,’, 1st International and 7th National Conference by the Korean Association for Corruption Studies, ‘A New Paradigm for Preventing Corruption in the New Millennium: a Comparative Perspective’, Seoul, South Korea, p.1. 371 Nethercote J 1990 ‘Reform of the Bureaucracy – An Overview,’ ’ in Prasser S, Wear R & Nethercote J (eds.) Corruption and Reform: The Fitzgerald Vision, University of Queensland Press, Brisbane, pp.212-219, at p.217. 372 Coaldrake, Davis and Shand 1992, op cit., p.4.

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Nethercote373 said the Fitzgerald criticism was restricted to part of the police and a small number of ministers. Public administration was “relatively untouched”374 The community felt that the service was politicised. Coaldrake375 when a Commissioner of the Public Service Management Commission noted: In the collective mind of the community the reputation of the Queensland public sector was sullied by the revelations before the Fitzgerald Inquiry. For the vast majority of public officials any association with the questionable practices revealed before Fitzgerald was both without foundation and deeply hurtful. But it was nevertheless an association which the public service as a whole had to endure, at least in the short term.376

He later contradicted this assessment, claiming the public service was corrupt.377 Wanna378 used Coaldrake as source to support an accusation of public service corruption. These bodies, particularly the boards of Suncorp, QIDC and the Queensland Events Corporation, had been filled with supporters and confidants of the National party… The replacements were not known for the closeness to the Labor party (many had actually been office-holders under National governments in earlier years) but rather for their competence and likely ability to do the job.379

Wanna failed to provide evidence supporting these claims.

The following chapter will discuss the major changes that influenced the public sector ethics of bureaucrats rather than politicians. Consequently, some important reforms, such as the development of a parliamentary committee system will not be canvassed. Thus the Fitzgerald Inquiry identified the corruption that had been happening in the 1970s and 1980s. It took a scandal to bring about public recognition that change was both necessary and possible. However, the nature of the corruption uncovered related to police officers and politicians rather than line public servants.

4.4 Conclusion During the twentieth century, Queensland governments continued to reflect rational practices in administration, that is, ministers continued to place their own interests before those of others.

373 Nethercote 1990, op cit. 374 ibid, p.214. 375 Coaldrake P 1991 Opportunities and Digestive Difficulties Associated with Queensland’s Public Sector Reform Agenda, Royal Institute of Public Administration Australia North Queensland Seminar, Townsville, 29 November 1991, reproduced in Davis G 1993 Public Sector Reform under the First Goss Government: A documentary Sourcebook, Royal Australian Institute of Public Administration, Brisbane, pp.137-145. 376 ibid, p.137. 377 Coaldrake & Whitton 1996, op cit. 378 Wanna 1992, op cit, pp.74-82. 379 Weller 1991, op cit, p.202.

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The period of the Public Service Commissioners improved the integrity of the system of Queensland public administration in line with rational public demands. The size of the employment pool meant in practical terms they could not become involved in every appointment or promotion. These decisions became the responsibility of a full time commissioner. However, ministers retained control over the appointment of senior officers and final decision making power over the public sector. Thus they could still manipulate appointments in their own interest. Meanwhile ministers retained control over the system. The Commissioner was always under the direction of the Cabinet. During Sir Joh Bjelke-Petersen premiership, the role of public service supervisor was given to a Board and then distributed to CEO’s as the number of public servants grew. But at the same time as they spoke of the integrity of the Public Service Act 1922, ministers were acting in their own interest. This self-interest has been demonstrated through examples of the battle over compulsory unionism and the attempts to ensure government control over embarrassing information, as the Creighton case epitomised. No watchdog bodies were established that could have interfered with ministerial activity. Nonetheless, the government introduced the Ombudsman and the Financial Administration and Audit Act 1977 to appear accountable.

The service continued to reflect the provision of universal male suffrage but failed to pass on the same advantages to women with the advent of full adult female suffrage. In order to maintain the concept of the nuclear family headed by a male breadwinner, women were nonetheless reluctantly incorporated into the service. Every female employed was seen as putting a man out of work and depriving a family of an income. These policies were not changed until there was a shift in the public support for equal treatment for women in the 1960s. Queensland was very quick in reflecting these new values in public sector employment practices. Thus it could be argued that change was driven by the need for electoral success.

The public service commissioners tried to ensure that the public sector produced the greatest benefits for the least investment. They tried to remind officials that holders of secure and well paid public service positions owed a debt to the community that they had to repay with good service. Story also attempted to reduce the silo mentality in favour of a sector-wide approach. But this had little effect on the rational attitudes of the service, for example, Story was unsuccessful in trying to remove automatic allocation of increments and the reliance on seniority for promotions.

But rationality was not practiced universally. Irrational behaviour arose through lack of restraint in the pursuit of rational goals. The unrestrained self-interest of the police and ministers resulted in the exposure of illicit activity and the Fitzgerald Inquiry, which

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brought about the end of the specific practices covered by its terms of reference and the introduction of new reforms and watchdog agencies which will be discussed in the next chapter.

Other parties’ attempts to extend the characterization of corruption to the public service did not succeed. Clear evidence was not provided to support the arguments as had been the case with police corruption, and their critics did not have a consistent case to support their allegations. The next chapter will discuss how the change in government in 1989 gave the critics the opportunity to introduce the changes they had been seeking. But it required that they justify the new regime in association with the Fitzgerald suite of reforms.

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Chapter 5 Post-Fitzgerald Public Sector Reforms

The post-Fitzgerald Report era was a period of major change in relation to the organisation of the public sector. The motivation for change was the desire to catch up with the reforms taking place in other jurisdictions and ‘modernise’ the Queensland public service. At the core of these changes, not surprisingly, were notions of greater efficiency. The instigators of reform insisted that their reforms would create greater productivity more efficiently.

Decentralisation of decision making and the creation of a Senior Executive Service (SES) were the two themes of reform. The National and Liberal parties supported the former as a means of emulating the flexible management practices of the private sector. CEO’s would be able to run their agencies like a stand alone business with no central Board or Commissioner making management decisions. The ALP supported the SES as a specialist management group who could move between agencies as required to reveal their managerial wisdom. Both programs were sold to the public on the basis of greater efficiency for no new investment. Both also presented opportunities for patronage. In the long run, each side of the House saw the benefits in the other’s program and the government is now run on a decentralised basis with an SES.

The key point of discussion in this chapter is not their intended strategies but the parties’ poor standard of debate about key issues. A reader of Hansard could be justified in assuming that very few people understood what they were talking about. Most of the ‘innovations’ for which credit is claimed are either pre-existing provisions simply repeated in new legislation or refer to processes that do not exist. The other notable theme is the demonstrable hypocrisy of the parties not only in their failure to live up to their claims but their cynical presentation of counter-arguments in debates that they have no intention of supporting themselves.

More than ever before, the parties enter a game of smoke and mirrors. As we noted in Chapter 1, if a government was genuine about the legislation being a significant part of a reform package, and they supported this package, they would ensure an understanding of what they were implementing, avoiding hypocritical actions that undermine the policy, and ensure that public servants understood the legislation, and that it was being implemented and carried out in accordance with the spirit of the Act.

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These points will be examined in turn in relation to three periods of change: the National Party government after the rule of Sir Joh Bjelke-Petersen, the Goss Labor government, and the Coalition government from 1996-1998. The current Beattie Labor government has not made many changes to the public sector regime and thus will be dealt with briefly at the end of the chapter.

5.1 National Party Post Bjelke-Petersen After the resignation of Sir Joh, the remaining government members sought to distance themselves from the perception of corruption. Their anti-corruption reforms will be discussed in chapter 7. However, the National Party continued with Sir Joh’s intentions of reforming the management of the public sector. Before resigning, the former Premier had instigated a review of the public sector to determine ways of improving efficiency and effectiveness. The review was not completed until the new Premier, Mike Ahern, had taken office. Sir Ernest Savage headed the committee conducting the review, which led to the committee’s report being commonly referred to as the Savage Report.

This section will deal with the Savage Report and its recommendations. It will then discuss the legislation the government implemented to give effect to most of the Report’s recommendations, namely the Public Service (Board’s Powers and Function) Bill 1987 and the Public Service Management and Employment Act 1988.

5.1.1 The Savage Report In 1987 Sir Ernest Savage chaired a review of the Queensland public service. His report, the Public Sector Review, or the Savage Report, focused on the efficiency of the public sector in Queensland. It took place in the afterglow of the UK’s Thatcherite and US’s Reagan reforms and reflects the same free market values. The report promoted privatisation, smaller government, and decentralisation (greater financial and strategic autonomy of line agencies). As the report explains: The Committee believes that by accepting the Recommendations of this Report not only will the productivity of Statutory Authorities and the Public Service be considerably increased, but the Public Sector will become more efficient, progressive and flexible to cope with the changing trends affecting the community and the demands of the Government.380

As a significant part of the decentralisation agenda the Committee recommended that the management and organisational services role, conducted by the Public Service Board, be abolished and performed by private sector consultants.381 The reduced role of the Board was reflected in the Report’s recommendation that a part-time Board with a rotating membership of three Permanent Heads replace the existing full-time Board.

380 Savage E 1987 Public Sector Review - report, Public Sector Review Committee, Brisbane, p.iv. 381 Savage 1987, ibid., recommendation 35.

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The central mechanism to administer flexibility was the recommendation to shift human resource matters from the Board to the individual CEO’s. The Public Service Board had had central control of all appointments. Under the Savage formula there would be a centralised recruitment system of base grade clerical staff, but individual agencies would conduct their own selection process and have the ability to appoint casual and part-time positions. Consequently, CEO’s would have almost all power over appointments and the new part-time Board would only provide guidelines on recruitment and selection to agencies. The former public service commissioner, J D Story, opposed this very situation. He felt that the benefits of a generic system and cooperation over-rode the gains of decentralisation. Writing in 1921 he said: The Public Service is a Federation of Departments; it is not a kind of pre-war [WWI] Balkans containing several separate and independent States, each with its own supreme governing head, its own race, its own laws, its own policy… Uniformity may be irksome at times, but it tends to prevent chaos and resultant discontent, and thus to secure departmental cosmos.382

Similarly, the next Commissioner, J McCracken, writing in 1954 about the tendency of some agencies to treat themselves as a distinct entity, noted: It was to avoid this that the Public Service Acts were passed providing for the administration of the Public Service as one unit with uniformity as far as possible in conditions respecting recruitment, employment, promotion, administration and industrial matters and relations. It cannot be stressed too strongly that all Departments and Offices should inter-act and form part of a complete Public Service to give the widest possible community service as efficiently and effectively as possible.383

Thus they both believed that centralised control better served the public as it was more efficient by ensuring uniformity and, consequently, was more effective. As we will see, both sides of politics now saw this model as a form of inefficient dictatorial control.

The Savage recommendations also appear to have been a reversal of the early twentieth century efforts to shift control of appointments away from individual CEO’s and ministers to a central body to defeat patronage. Conversely, the Report recommended the creation of contracts for senior officials to reduce the likelihood of patronage, though how this effect would result is unclear. First, given that tenure is supposed to ensure an officer is protected from the fear of failing to be reappointed if they do not please their masters, the imposition of temporary contracts would certainly appear to be a retrograde step. Contracts expose public servants to manipulation via revocation of the contract and refusal of renewal. Long term tenure is replaced with temporary protection for the term of a contract. The value of contracts depends on the environment into which they are

382 Story 1921, op cit, p.24. 383 McCracken J 1954 Public Service Commissioner Queensland: Fifty-Fourth Annual Report, Being the Report for the Year Ended 30th June, 1954, Government Printer, Brisbane, p.3.

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introduced. Contracts are worse than tenure under a fair system, as an officer with genuine tenure would be safe from all dismissal except by disciplinary action. Conversely, a contract is better than a full-time ongoing, but non-tenured, position because for the duration of the contract they cannot be sacked without compensation. As the report assumes officials have tenure, it is difficult to see how it reached the conclusion that contracts reduce patronage. Second, short term contracts would increase opportunities for patronage as the regular expiration of contracts allows for new appointments. Contract staff who are out of favour have no right of renewal and a more desirable candidate can fill their position.

The Report once again restated the denial of the use of seniority in the public service. Promotions were to be based solely on merit and follow a standardised process. The Report also proposed an individual merit process through recommendation 55: “That a performance appraisal system applicable to all Public Servants, be developed and introduced as soon as possible and be incorporated into the proposed Salary Administration System upon its implementation.” Rather than central supervision of the actions of units or agencies, which would cease with the move to devolution of power, supervisors would assess individuals on the individuals’ own performance. This recommendation did not propose the introduction of a merit system as such a system was already in place. The Report simply proposed a new mechanism to determine merit within the workplace.

The Report also recommended that: “the Government adopt a code of conduct to be used as a guide for Public Servants in Queensland.” This recommendation was not made because of a perceived breakdown in integrity. Rather it was acknowledged that the “great majority” of employees were ethical, but the public deserved to be made aware of the guidelines of their conduct, in the same manner as most professional bodies and technical associations.

The Committee therefore considers that there should be a clearer delineation of what is expected of Government employees and that this be achieved by the adoption of a code of ethical conduct which should be published for the benefit of existing employees, for the orientation of new staff and for the information of the public.384

In summary, the Report sought to improve the quality of the Queensland public service through decentralised management, use of contracts for senior staff, a more efficient merit system and the publications of a Code of Conduct. It is difficult to judge the validity of the recommendations as the Report is short on reasoning. As Thornton noted in his review of the Report, no balanced arguments or justifications are provided for either the

384 Savage 1987, ibid., p.59.

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pro-private sector management style the participants assumed to be necessary, or the recommendations which result. Similarly, while many submissions and interviews were conducted, their contents and influence on the report are not elucidated.385 Consequently it is difficult to assess the value of the recommendations. The government largely implemented the recommendations and they also had the support of the Liberal Party.386

Not all the Savage recommendations were given effect, although some were rushed into place. Government ministers and senior officers of the Premiers Department and Treasury sought the removal of the Public Service Board.387 It was abolished before legislation was prepared to establish a replacement system for the Board’s functions.388

5.1.2 Public Service (Board’s Powers and Function) Bill 1987 The Public Service (Board’s Powers and Function) Bill 1987 was introduced as an interim measure in 1987 to cover the period before the accepted recommendations of the Savage Report could be implemented. As the Minister for Employment, Small Business and Industrial Affairs, Vince Lester, stated in his Second Reading speech, the Bill was intended as part of a streamlining process under which: “there would be opportunities for more flexibility for staffing and, indeed, enhancement of the public service generally.”389 The members of the Public Service Board had already resigned and the Bill was intended to allow some transitional arrangements before the new more comprehensive public service Act being passed.390

The Opposition Leader, Warburton, said the Board had been removed because of an attack from the Treasury and Premier’s Department. Warburton quoted an un-named source within the Queensland government as saying: “We managed to kill off the Public Service Board. We now want to see it through to the bitter end by being in absolute control of the legislation.”391 He did not explain why the Treasury would want to remove the Board or why it wanted control over the legislation. The story also seems unlikely given that under the system of administrative arrangements, the public sector legislation did not fall within the Treasury portfolio. The government did not answer this attack.

In a later speech, Mike Ahern, who would be the new Premier, made it clear that the Public Service Board had been an object of bureaucratic obfuscation.

385 See Thornton H 1988 ‘The Savage Report: Public Sector Reform Queensland Style,’ Canberra Bulletin of Public Administration, no 55, June 1988, pp.84-88. 386 The Liberal Leader, Sir William Knox, stated that: “It is the most refreshing report I have seen on the administration of this State.” (QPD, 20 November 1987, p.4703) 387 Warburton, QPD, 18 November 1987, pp.4700-4701. 388 Warburton, QPD, 18 November 1987, pp.4700-4701. 389 QPD, 18 November 1987, p.4544. 390 These primarily related to the introduction of optional early retirement. 391 QPD, 20 November 1987, p.4700-4701.

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…the Public Service Board was not an agency of good management but, rather, an excuse for mismanagement. If a Minister were to ask a departmental head, “why is that happening?”, he would reply, “Because the Public Service Board decided that that is what should happen.” If a Minister said, “Why don’t you fix that problem?”, the departmental head would reply, “For a year we have been asking the Public Service Board to fix that up and they haven’t got around to it…392

Thus he believed the allocation of power to CEO’s would remove the excuse of blaming the Board for poor performance.

In summary, the Public Service (Board’s Powers and Function) Bill 1987 was an interim measure to cover the period between the transfer of the supervision of the public sector from the Public Service Board to a new body. Despite Opposition allegations of Machiavellian plots, the government claimed that it wanted to remove the obfuscation of the old system and replace it with a more flexible style of management.

5.1.3 Public Service Management and Employment Act 1988 The Savage recommendations that were accepted were finally put in force in the Public Service Management and Employment Act 1988.393 The Minister for Finance, Brian Austin, introduced the Bill and promised it “will usher in a new and exciting era in public service management.”394 Private sector management methods would be introduced to modernise the public sector to deal with tighter funding regimes and higher productivity demands. As the Minister said: “A more businesslike, efficient and responsive public service complementing a strong private sector is essential if Queensland is to successfully respond to the challenges of the future.”395 These goals would be achieved by giving CEO’s more autonomy in management of their agencies, making public servants more accountable, highlighting management and performance issues and increasing flexibility. The Act brought in the most significant changes since 1922 including decentralisation and a return to uniformity through a Commissioner, but no enforcement powers.

Austin asserted CEO’s would perform better because the combination of greater power and direct responsibility would give them the flexibility to make coal-face arrangements that best suited the agency’s needs, as well as removing the safety net of tenure to make them more accountable. The achievement of this “fundamental principle of modern management” would be tempered by the appointment of a Public Service Commissioner,

392 Ahern, QPD, 29 March 1990, pp.964-968. 393 The Public Service (Board’s Powers and Functions) Act 1987 was enacted as an interim measure while the broader legislation was being prepared. This gave powers to the new Board which replaced the Public Service Board. 394 Austin, QPD, 19 April 1988, p.5983. 395 Austin, QPD, 19 April 1988, p.5985.

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supported by the Office of Public Service Personnel Management (OPSPM), with power to maintain some consistency across the sector. The coordinating (but not controlling) Commissioner could address Story and McCracken’s concern in relation of retaining uniformity and prevention of a silo culture, while still maximising flexibility.

The Act also included principles by which the CEO’s were to manage their agencies and employ staff to act as guidelines. 6. Public Administration. The management and administration of the public service shall be directed towards :- (a) maintaining excellence, objectivity, impartiality and integrity in the formulation and delivery to the Government of Queensland of information and advice to assist in the processes of making decisions by Government; (b) maintaining standards of excellence in service to the community; (c) implementing the policies and priorities of the Government of Queensland responsively and responsibly; (d) reviewing and improving the efficiency and effectiveness with which service are provided to the community; (e) maintaining a proper nexus between responsibility and the authority required to discharge the responsibility and accountability for the proper discharge of responsibility; (f) deploying and utilizing resources to the maximum of their effectiveness.

7. Personnel management. Personnel management within the public service shall be directed towards achieving the following principles: - (a) processes for selecting persons for appointment and appointment of person to or within the public service to the directed towards and be based upon a proper assessment of the merit of the applicants; (b) officers to be treated fairly and not to be subjected to arbitrary or capricious acts or decisions; (c) officers to be accorded equal opportunities, having regard to their qualifications and callings, to secure promotion and advancement; (d) officers to have reasonable access to training and development, of self and skills, and to be employed in employment, where possible having regard to its availability, appropriate to the respective capacities; (e) officers to be provided with safe and healthy working conditions; (g) officers to be remunerated at rates that are commensurate with the responsibilities undertaken by them.

The principles of public administration and human resources management have remained intact to the present day incarnation of the legislation. Later Acts have expanded upon them but kept the same spirit. While they are meant to be a guideline for behaviour, and presumably were intended to be used in concert with the system of performance planning and review, they were not tied to any process in the Act. The Opposition supported both of these sections but doubted they would be given effect.396 The absence of any mechanisms for the implementation of the principles makes it reasonable to suspect that they were not seriously regarded as a fundamental tool of management. When the ALP took government they took no steps to more effectively incorporate the principles into management practice.

396 De Lacy, QPD, 20 April 1988, p.6235.

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Austin outlined eight major ‘changes’ in the legislation although most were simply reorganisations of existing powers and policy. First, all appointments and promotions would be based on merit.397 The Act did not introduce a methodology of defining, implementing or supervising such a system. Nor did it give an insight into Parliament’s intention other than the “principle” under s.7(a) that merit will be the determining factor in selecting staff for appointment and promotion. The Act also provided no sanctions for the failure to abide by this principle, but the government could honestly say that it had ‘legislated’ for merit selection. The provision was simply a restatement of a century old Queensland government policy and cannot be described as a new initiative.

Second, in line with the Savage recommendations, CEO’s would be placed on contract so that good service could be rewarded and bad performers removed.398 There is a misnomer in this proposal: CEO’s could always be removed. No Queensland legislation had provided for tenured employment in the Service.399 There may have been a belief among public officials that they had tenure, but it would have been reliant on organisational culture rather than law. The provision of contracts did make it easier, although more expensive, to remove a CEO; they could have their contract terminated and paid out at the convenience of the government. So this was merely a more efficient means of controlling CEO’s rather than the removal of tenure.

Third, CEO’s would have the ability to take action against non-performers within their agencies, as all non-contract promotions would have a six month probationary period, presumably allowing time to determine the suitability of the candidate and to encourage performance.400 Previously, probation only applied to entry level employees on their first appointment. This was a good innovation which provided another avenue to ensure promotion on merit. In Ludwig v Hill401 the various elements of efficiency were listed as either proven or natural aptitude to perform the duties of the position, good conduct meaning not breaching regulations or otherwise being reprimanded, proven diligence in application to their duties and a consideration of work output. These characteristics are well represented in the Principles of public service management and employment in the new Act. However, with no avenue for appeal on their decisions termination of a

397 Austin, QPD, 19 April 1988, p.5984. 398 Austin, QPD, 19 April 1988, p.5984. Public Service Management and Employment Act 1988, s.14(1)(b). 399 Colley L 2005, ‘How Secure Was That Public Service Job? Redundancy in the Queensland Public Service,’ Labour History, no.89, pp.141-157. Colley provides a comprehensive coverage of the lack of tenure in Queensland, but fails to establish that tenure was ever intended to be part of the Westminster civil service. 400 Austin, QPD, 19 April 1988, p.5984. Public Service Management and Employment Act 1988, s.23. 401 Unreported decision of the Queensland District Court, discussed by Howatson 1988, op cit. pp.82-83.

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probationer’s appointment may have been used as a tool of manipulation. For six months probationers were vulnerable to unfair treatment without recourse.

Fourth, Austin said the OPSPM would establish a performance appraisal system, as rec.55 of the Savage Report recommended, for all staff.402 While this would be another step in the defeat of seniority, the Act did not implement the system or outline what it would entail. Once again, it is unclear what notion of performance would be used, but presumably the principles in ss.6-7 would guide it. The success of the system was contingent on the OPSPM carrying out the minister’s intent and could not be claimed as an initiative under the Act.

Fifth, CEO’s would have the power to control their department’s strategic direction, administration, finances, recruitment and personnel.403 In other words, all the Board’s previous powers would now be devolved to individual CEO’s. An associated earlier legislative change had already allocated direct responsibility for the financial operation of each department to the permanent head. The Financial Administration and Audit Act 1977 made each director-general an ‘accountable officer’ who had to manage and report on the income and expenditure of their agency to ensure efficiency, reduce “waste and extravagance” and provide value for money.404 The new OPSPM had an advisory and not supervisory role. So now, not only were CEO’s given full powers over human resource matters, but they did not have any detailed reporting responsibility on the performance of this discretion, except their normal hierarchical responsibility to their Minister. Hede observed that this created a diametrically opposite public service culture to that which had previously existed. In Queensland, the fully ‘hands-on’ approach of the enforcement-oriented Public Service Board was replaced in 1987 with the completely ‘hands-off’ approach of the largely ineffectual Office of Public Service Personnel Management. The Goss government inherited a fragmented public service comprising departmental ‘diaspora’ with no central core and with a rapidly disintegrating bureaucratic soul.405

While Hede did not provide evidence to support his conclusion, the potential for such a result is clear in the legislation.

Sixth, staff would be able to interchange between agencies.406 The Governor in Council held the power to make such transfers but could delegate them to a Minister or other

402 Austin, QPD, 19 April 1988, p.5984. 403 Public Service Management and Employment Act 1988, s.12. Austin, QPD, 19 April 1988, p.5984. 404 Prasser S 1985 ‘Efficiency Auditing in Queensland,’ Australian Journal of Public Administration, vol.XLIV, no.4, pp.354-361. 405 Hede 1993, op cit, p.102. 406 Austin, QPD, 19 April 1988, p.5984.

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officer in a department.407 The minister did not explain why this would be desirable and the Act did not require CEO’s or ministers to approve of such moves. Once again, this is not a new initiative as transfers were already possible under previous legislation.

Seventh, disciplinary powers would be given to CEO’s and all cases would have access to an appeals process.408 The actions which could lead to discipline were unremarkable. However, they still contained the “unfitness” clause. The section also makes it an offence to fail to comply with the terms of any Code of Conduct approved by the Governor in Council.409 The disciplinary action could include: “dismissal; reprimand; forfeiture or deferment of a salary increment or increase; reduction in the officer’s level of salary; a deduction from the officer’s salary of an amount not exceeding $100.”410 But no table linked sanctions and corresponding charges which could ensure uniformity of punishment across agencies. The major innovation of this clause was the removal of direct ministerial involvement in discipline. If a minister wanted to see a person was disciplined they would now have to rely on their CEO to take the action.

The new Act provided for a Code of Conduct and principles of public administration and human resources management. The Code was rather sparse in its provisions compared with current codes. It restated general Westminster principles and other key values including serving the elected officials by effective and efficient achievement of government goals, integrity, political impartiality, respect for persons and justice and equity in dealing with internal or external people.

It then goes on to describe proper conduct for treating other staff members, standards of dress, use of alcohol and drugs, use of official resources and following lawful directions. The bulk of the Code deals with handling conflicts of interest and making public comments.411 The problem with the code was that CEO’s did not promote it or bring it to the attention of all public officials.412 It is not clear why there was no broad circulation, however, given that the Savage report noted that the purpose of the Code was public information of standards already applicable within the system rather than a process of instituting a new code of behaviour, internal circulation and education may not have been seen as necessary. The lack of awareness could also be a result of the failure to implement the legislative requirements to educate staff.

407 Public Service Management and Employment Act 1988, ss.16-17. 408 Austin, QPD, 19 April 1988, p.5985. 409 Public Service Management and Employment Act 1988, s.29 & s.4(1). The Opposition supported the elimination of additional punishment for a public servant who had committed an indictable offence. (De Lacy, QPD, 20 April 1988, p.6235) 410 Public Service Management and Employment Act 1988, s.29(3). 411 Queensland Government 1988 Code of Conduct for Officers of the Queensland Public Service, Brisbane 412 EARC 1992, op cit, para.4.24.

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Lastly, redundancy provisions would be introduced to assist the reorganisation of agencies to best suit the needs of the department.413 The power to reduce the number of staff within an agency has always existed, but this Act shifted the power from the Governor in Council to the CEO.414 This clause prompted complaints that it ended tenure for public officials. However, as previously argued, no Queensland public sector legislation has ever provided for tenure. While there have been provisions which required the termination of an officer’s employment due to factors such as bankruptcy, all governments have had the power to reduce staff numbers or sack staff without relying on discipline provisions.

The ALP opposed the introduction of contracts, introduction of retrenchment and what they saw as the reduction in the independence of the public service.415 During the Second Reading debate the Opposition Finance spokesperson, De Lacy, said: “…this legislation… strikes at the very heart of what people in the Labor Party believe in. We cannot support it, and it is our intention to oppose it as strenuously as we can.”416 Less than two years later the Opposition formed a new government. While they changed the nature of the supervisory body, the OPSPM, they left intact each of the provisions De Lacy had “strenuously” opposed.

In conclusion, the Public Service Management and Employment Act 1988 shifted power of public sector administration from the ministry to the CEO’s, under the supervision of the Commissioner. Of Austin’s eight ‘new initiatives’, only probation, decentralisation, performance appraisal and extension of discipline to CEO’s, were new. The provision of the principles of management did not appear to have been genuine. The claims of protection of tenure and the need for contracts were spurious. Ministers could still intervene when necessary to give effect to their own desires, although, admittedly, it was now more difficult. Ministers had also increased their control of the most important staff, that is, senior appointees, through the operation of contracts. The only power ministers had lost was access to minor appointments as a means of rewarding the ‘soldiers’ from the party. The next government would rectify this situation through the creation of a separate ministerial staff.

413 Austin, QPD, 19 April 1988, p.5985. Public Service Management and Employment Act 1988, s.28. 414 Public Service Management and Employment Act 1988, s.12(1)(o). 415 De Lacy, QPD, 20 April 1988, p.6235. 416 De Lacy, QPD, 20 April 1988, p.6234.

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5.1.4 Conclusion Savage recommended the reflection of private sector flexible management style in the Queensland public sector. The core reform would be decentralisation of the management to allow each CEO to operate their agency in the most efficient manner they could without unnecessary bureaucracy or obfuscation from central bodies like the old Public Service Board. The rationalisation of the recommendations can be seen in the desire for greater output with the same resources. Savage believed that increased independence of management would reduce bureaucracy and improve productivity. The National Party government gave effect to the spirit of the Savage Report recommendations in the Public Service (Board’s Powers and Function) Act 1987 and the Public Service Management and Employment Act 1988.

The Public Service (Board’s Powers and Function) Bill 1987 was an interim measure that abolished the Public Service Board but did not introduce initiatives. The Public Service Management and Employment Act 1988 gave power of public sector administration to the CEO’s of each agency to institute the Savage recommendations for more flexible management.

The government used the opportunity to depict itself as a reforming government. However, half of its supposed initiatives were already in place under previous legislation. The minister depicted the government as improving integrity through providing principles of management and protecting tenure, but both proposals lacked enforceability. The ministry controlled senior appointments and increased their power over the holders of these offices with the introduction of contracts.

5.2 Goss Government In December 1989 the Labor Party took government after more than two decades in Opposition. This section will examine the Labor policy on public sector administration, the introduction of the Public Service Management Commission, the Public Sector Legislation Amendment Act 1991 and the new government’s application of merit.

5.2.1 Labor Policy While we can never know for certain the reason for electoral results, it is a reasonable proposition that the cause of the change of government was Justice Fitzgerald’s inquiry into corruption. As a consequence of this inquiry and the recommendations which followed, there was an expectation that the new government would address the ethical lapses of the past.

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Ethics was not the only topic upon which change was demanded. As we have seen, the National Party government had also been unpopular among academic commentators. Strong cases could be made that it was paternalistic and did not promote accountability. Reforms were necessary at all levels of government to bring it into line with administrative changes in other jurisdictions. Some of these changes were fundamental for a democratic government such as allowing access to information, and others related to fashionable management trends, such as the introduction of market based forces into the public sector.

Among this enthusiasm, a case was made for a review of the ethics of the public sector. This line of action appears to have been based on the connection between smoke and fire; if cases of corruption could occur then a person could assume that the system must have been faulty. Although Fitzgerald did not directly implicate the public service, accusations were made that the whole service was corrupt. These appear to be based on assumptions, anecdotes and speculation. The ALP were happy to clearly state that the public service was corrupt. For example, Foley stated that, “… the canker of corruption extends well beyond the police force.”417 In response to this concern the Electoral and Administrative Review Commission conducted a review of the nature of public sector ethics resulting in a systemic approach to public sector ethics.

The ALP won the 1989 election on a platform of honesty and integrity. The poor record of the party in this regard from the first half of the century had been forgotten and the absence from office for many decades meant that the taint of corruption could not be attached to any of the contemporary Labor MLA’s. Credit is due to the new government in following the Fitzgerald inspired process. Within four years Queensland introduced administrative law and governance changes that had taken at least a decade in other jurisdictions. This success can partly be credited to the fact that the Fitzgerald Report had obtained almost Biblical authority and no one wanted to be seen to oppose the substance of any reforms arising from it. The arguments that arose during this period were not over the validity of the reforms but rather how far the final product departed from Fitzgerald’s intent or the recommendations of EARC.

In its pre-election policy statements, the ALP said it would remove the domineering Public Service Boards, return tenure to all staff below SES, and end contract employment. Labor wanted a return to ‘professionalism’. As Goss said, without a respect for boundaries between public service roles and politics, “inefficiency, nepotism and, ultimately, corruption can follow.”418

417 Foley, QPD, 23 October 1990, p.4122. 418 Goss 1989, op cit, p.10.

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The Labor policy was, however, lacking in detail as to the manner in which the previous system was faulty and how their reforms would be implemented.419 This is not unusual because, as Weller observed, Opposition parties’ policies are not generally concerned with the “administrative feasibility” of its implementation, or with the coherency of their policies when viewed as a whole.420 Goss’ principal advisers were his personal staff and a small group of academics, with the practical experience of up to two decades of research and writing on public sector management and reform and with experience at both federal and state level and overseas. The reason for using academics was simple: they were the only people outside the public service who had the necessary expertise and whose services were available free.421

The Opposition tried to show that the ALP’s reformist zeal disguised more of the same patronage and politicisation that had been at the core of the Inquiry’s interest, for example, Fitzgerald, a National Party MLA and no relation to Fitzgerald QC, said in 1994: In 1989, when the Premier was Leader of the Opposition, he said in this House— "What worries me is that, when people have a professed commitment to reform and to weed out corruption only when it is convenient and popular, will that commitment disappear when it is no longer convenient?" He further said— "This is the Premier that uses 'openness' and 'accountability' in every sentence. Unfortunately he does not demonstrate openness and accountability in every Act." Those words should send a chill up the Premier's spine, because his own words now serve as a damning indictment of his Government's thin facade of openness and accountability.422

This section will discuss the theory and justification of reform, the reforming legislation, and the application of merit.

The change of government resulted in a reversal of some of the changes introduced after the Savage Report. An SES was introduced, and strategic public service control was once again centralised, this time under the Public Sector Management Commission (PSMC), but in a more arm’s length manner than under the Public Services Boards.

In conclusion, Labor entered government carrying a public expectation that it would reform the ethical culture and systems of the Queensland public sector. The Party had campaigned on the platform of returning integrity to government, but its policies related to structural management reforms instead of ethical regimes. Griffith University academics developed its policies to make Queensland mirror the public sector reforms in other

419 Hede 1993, op cit, p.89. 420 Weller P 1993 ‘Evaluating the State Government: Reform is in the Eye of the Beholder,’ in Stevens B & Wanna J (eds.) The Goss Government: Promise and performance of Labor in Queensland, MacMillan Education Australia Ltd, Melbourne, pp:12-22, at p. 16. 421 Weller 1991, op cit, p.194. 422 Fitzgerald (NP) QPD, 17 November 1994, p.10509.

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jurisdictions. They had to be characterised as complementing the Fitzgerald Reform agenda.

5.2.2 Public Service Management Commission The Labor government claimed that the PSMC would be complementary to the CJC and the EARC constituting a third arm of reform to complete the picture. “The PSMC will guarantee that reform will not stop with discrete legislative initiatives but will be carried through the entire public sector with a series of integrated structural reforms.”423 According to the Commissioners of the PSMC, its role included review of government agencies, introducing the SES, merit and equity protection and establishing consistent management standards. They justified the PSMC’s establishment on the basis that a Public Service Board of some sort was needed to perform centralised roles such as collecting statistics.424

The Opposition did not share the government’s support for the PSMC and disagreed with the characterisation of it as part of the Fitzgerald agenda. Borbidge complained that the Commission was designed to subdue the public service: The Bill is not a Fitzgerald initiative… This legislation, conceived in the corridors of the Griffith University, owes its existence to the desire on the part of the Labor Party to subdue the public service – the public service that the Labor Government despises, distrust and detests, but which, in reality, is the only good stable structure that the Government has going for it. The government would sooner take advice and riding instructions from unelected and unaccountable academics… rather than from experienced, competent and dedicated senior public servants who are ready and willing to serve the duly elected Government of the day.425

The Commissioners of the PSMC, Coaldrake, Davis and Shand, two of whom drafted the ALP policy, appear to have agreed with the Opposition when they pointed out in 1992 that Fitzgerald offered no reform of the public service, just the broader governance issues.426 Goss responded to the Opposition claim saying that while Fitzgerald did not mention the initiative, it was clearly a ‘fellow traveller’ with the other reforms: “Any sensible reading of the Fitzgerald report and any sensible assessment of what has been revealed in this State over the last few years would indicate that those circumstances would inevitably lead to this kind of reform.”427 The Premier did not provide any substance to validate his reasoning.

423 Goss 1989, op cit, p.8. 424 Coaldrake, Davis & Shand 1992, op cit, pp.7-8. 425 Borbidge, QPD, 29 March 1990, p.952-957. 426 Coaldrake, Davis & Shand 1992, op cit, p.4. 427 Goss 1990, op cit

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The Commissioners saw the PSMC as a response to the Public Sector Management and Employment Act 1988 which, they alleged, resulted in fragmentation and necessitated more centralised control. But their claims appear contradictory as, in the same article, the Commissioners vilified the “central personal controls” of the old Public Service Commissioners like Story, and later complained that decision making under the previous government was too centralised.428

The government’s determination to tie the PSMC to Fitzgerald could have been an attempt at legitimacy. There seems to have been an element of embarrassment on the part of the reformers that Queensland had not ‘kept up with the Joneses’ in administrative reform without any evidence that the Joneses had made reasonable decisions. Other jurisdictions had pursued managerialism with vigour and Queensland was being left behind. The fact that Queensland escaped the public sector entrepreneurialism driven financial disasters that occurred in the Victorian, South Australian and West Australian governments in the mid to late 1980’s, is not mentioned.

The PSMC was established as promised and from April 1990 to December 1991 completed reviews of 16 of the 18 departments, as well as a review of the structure of public service employment. The reviews were carried out through a process of public consultation, but the final reports were confidential submissions to Cabinet with only summaries being made publicly available.429 This form of reporting was not transparent and was indicative of a return of control to the ministry.

After the review process all incarnations of the PSMC were to have a passive role with occasional forays to “facilitate” rather than supervising or enforcing change. The arm’s- length management style relied on agency self-reporting rather than supervision.430 Thus the PSMC was not the same as the old Public Service Commissioner. It had no direct control and was only a review body. While many commentators applauded the new body, Wiltshire said the new arrangements made the system too complex.431

The PSMC’s coordination role was effective in the sense that it produced sector-wide generic standards for core policy areas. For example, a goal of the new Government was that it would ensure “that the Westminster principles of talent and merit become the only criteria for selection and promotion in the public service.”432 As noted above, merit was a

428 Coaldrake, Davis & Shand 1992, op cit, p.12. 429 Hede 1993, op cit. pp.90-93. 430 Hede 1993, op cit, pp.102-103. 431 Wiltshire K 1990, ‘Improving the Queensland Public Sector: The Potential for Reform,’ paper presented to the National Conference of the Centre for Australian Public Sector Management, Griffith University, 6 July 1990; cf. Weller, op cit. 432 Goss 1989, op cit, p.8.

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principle of s.7(a) of the Public Service Management and Employment Act 1988. But the PSMC went further and introduced uniform selection processes. Merit will be discussed in more detail later in this section.

Questions can be raised about the independence of the Commissioners. Wanna claimed that “[The PSMC] was initially headed by three commissioners, young and ambitious reform advocates who had no vested interests in the previous administrative order.”433 However, two of the Commissioners, Coaldrake and Davis, were the same academics who had provided the policy development support to the under-resourced ALP Opposition. As we will see, the Opposition identified their appointments as a target for government criticism.

In conclusion, the PSMC was not a Fitzgerald initiative but the new government claimed that it was an associated reform. No reasoning was provided as to how the new Commission was associated with the vision. The Commission was designed to increase central control and succeeded in performing a strategic review of the service. However, the government could not use the creation of the PSMC as a method of gaining kudos for making the service more honest and accountable.

5.2.3 Public Sector Legislation Amendment Act 1991 The Public Sector Legislation Amendment Act 1991 introduced the Senior Executive Service (SES) model into Queensland. The model provided for a core group of ‘expert managers’ who could move between government agencies providing their skills as required. They were the epitome of a cooperative government, ideally belonging to the public sector and not to an individual agency, giving them a government wide focus. The system had been in operation in the US since the 1970’s and in other Australian jurisdictions, including the Commonwealth Government, since the 1980’s. Mackenroth said “The development of a Senior Executive Service responds to the increasing demand for high quality modern public sector leadership.”434 He did not say where the demand originated or why the existing management was insufficient.

The Act spells out the purpose of the SES as follows: 10B. The Senior Executive Service is established to promote the efficiency and effectiveness of the public sector by attracting, developing and retaining a core of mobile, highly skilled senior executives who are responsive to government, industry and community needs.

Nothing in the Act related to either ‘attracting’, ‘developing’ or ‘retaining’ SES officers. The Act did introduce the Public Sector Management Standard, the PSMC developed, into the

433 Wanna 1992, op cit, p.75. 434 Mackenroth, QPD, 22 May 1991, p.7752.

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Public Service Management and Employment Act 1988. These principles would “require personnel management practices that ensure equity across public sector agencies.”435 Additional SES specific principles accompanied these standards. 10D.(1) The following management principles apply to the Senior Executive Service – (a) merit and equity are to apply to the recruitment and selection of senior executives; (b) senior executives are to be encouraged to – (i) develop a public sector wide perspective; and (ii) continue their executive development; and (iii) develop their skills through their assignment within and between units of the public sector; and (c) performance planning and review forms the basis of the assessment of work performance and executive development decisions.

Once again the Act does not “require” the SES to comply with any of the principles. Note that it is the responsibility of the SES officer to provide their own development, unlike the obligation on the Government to train the other staff and the claim under s.10B that the public service would develop the executives. Assuming s.10D as the more specific provision takes priority, then SES officers are more like private contracting consultant managers than public servants. They are specialists in public service management and, while appointed under the Public Service Management and Employment Act 1988, the government does not support them except through remuneration.

The Act also provided that SES had tenure, as long as they had a “satisfactory work performance”, were not a CEO, or did not sign a contract.436 In a later debate, Schwarten claimed that only people with tenure would provide frank and fearless advice.437 It is not clear how he saw the role of CEO’s. All CEO’s were contract employees since the Public Service Management and Employment Act 1988. But what did tenure mean? There never was a time when Queensland public officials were protected from being sacked. All legislation has been silent on this point. Sections 12(1)(o) and 28 of the Public Service Management and Employment Act 1988 still applied, which meant that a CEO could sack their staff. Therefore the non-contract staff did not have tenure. SES officers were also excluded from industrial awards and agreements.438

The Minister foreshadowed the extension of contracts which further reduced SES security. The Government recognises, however, that there will be some circumstances where contract employment below the chief executive level is appropriate. Contracts therefore will be available for those who occupy positions of a short-

435 Mackenroth, QPD, 22 May 1991, p.7752. 436 Section 15A. 437 Schwarten, QPD, 5 September 1996, pp.2549-2950. 438 Section 15D.

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term or one-off nature, or who otherwise would prefer a limited term of engagement within the Queensland public sector.439

The Opposition criticised the creation of the SES. While the 1987 Savage Report said the SES was still experimental, by 1991 the Opposition were happy to say that it had been a failure in other jurisdictions.440 Goss, on the other hand, said it was “best practice” and should be introduced in Queensland.441 First, the Opposition relied in part on the Savage Report’s rejection of the initiative. In recommending against its introduction Savage said: “The Committee considers that such a service could be seen as an elite corps, and to ambitious officers who did not reach its ranks, it could act as a disincentive and as such could prove counter-productive.”442 In 1996, when the Labor Party was back in Opposition, Schwarten, an ALP member, effectively raised the same argument, this time against the Coalition government. He said new scales about the SES would stop attracting good people to the public service as they would see their career “truncated at about the AO8 level”.443 Regardless of who put it forward, the argument is without substance. No staff were excluded from the SES. Theoretically, anyone with the necessary qualifications could obtain a position on merit. There is no evidence that a person’s chance of promotion was any better or worse whether senior positions were classified as SES or operated under a different system.

Second, the Opposition claimed that the SES was “a recipe for politicisation”.444 Lingard said: “The SES not only allows for ongoing manipulation of the career service concept but also encourages elitism, cronyism and a club environment in the upper levels of the public service which, once begun, will take years to eradicate.”445 Harper said the SES officers could be obtained from outside the service and would probably be “puppets of the Labor party”.446 Harper’s conclusion is based on the premise that the ALP was using SES as a method of cronyism.447 Cooper agreed that the SES and CES were a “blue print” for politicisation and resulted in “the installation of an elite corps of whiz-kids, where no outsiders [from the corp], even with the right credentials, have a ghost of a chance of getting into the action”.448

439 Mackenroth, QPD, 22 May 1991, p.7753. 440 Harper, QPD, 29 May 1991, p.8084. See also Wiltshire 1992, op cit, pl.268. 441 Goss, QPD, 19 May 1991, p.8094. 442 Public Sector Review Committee 1987, Public Sector Review Report, Queensland Government Printer, Brisbane, p.54. See Beanland, QPD, 29 May 1991, p.8089. 443 Schwarten, QPD, 5 September 1996, p.2549. 444 Harper, QPD, 29 May 1991, p.8085. 445 Lingard 1990, op cit, 446 Harper, QPD, 29 May 1991, p.8085. 447 This was denied out of hand (without evidence) by Coaldrake (Coaldrake & Whitton 1996, op cit. p.196) 448 Cooper, QPD, 29 March 1990, pp.478-488

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Coaldrake, the Public Sector Management Commissioner championing the SES model, denied that this was the case, but did not give any evidence to support his claim. In practice it was no easier to appoint a person to the SES than to any other position; all were subject to merit selection and their positions advertised, and appointments noted, in the Government Gazette. Also people from interstate could always apply for Queensland jobs. The only difference was the new government’s recognition of time served, which removed a previous disincentive for people to shift from another jurisdiction to the Queensland state government. The only advantage ministers held under the new process was that the Governor in Council, rather than CEO’s, appointed SES. Nonetheless, the Opposition believed that internal staff would not have an equal opportunity for the positions. Harper claimed that the Government wanted people with “politically based” skills, and the internal staff with workplace based skills, would be excluded.449

The Opposition also attacked the underlying concept that a content free manager could be effective. Harper spoke in favour of the traditional notion that a person needed time in an organisation to be a good manager and could not simply be moved on a regular basis to new areas and be expected to produce high quality work.450 Lingard said there is no large group of people who can be successful content free managers. He continued that even if the short stays in individual offices was beneficial to the SES, constant managerial change would be disruptive to the agencies “which gain little continuity of decision- making or commitment to long-term programs by officers looking forward to their next promotion.”451

It can be argued that the SES system was logically flawed. First, it reduced expertise in the public sector. Under an SES system, managers did not need content knowledge. Low ranking staff, likewise did not need content knowledge as they were new to the field. This left middle managers and specialists as the sole repositories of corporate knowledge and technical skill. However, many position descriptions from Queensland Government agencies allow outsiders to even take these positions if they can demonstrate the “ability to rapidly acquire” knowledge about the field. Consequently, it was possible to have an area in which no one possessed strong content knowledge in the field under administration. The Opposition latched onto this flaw and said the re-employment of many of the long term staff removed after the change of government backed up their claim that the service could not operate effectively. As Borbidge pointed out: It should be noted that some of those who were made redundant have been re- employed as consultants to provide the necessary expertise that came from experience that the politically correct could not offer. This Government said that there would be no redundancies; it got rid of people; the politically correct messed it up so

449 Harper, QPD, 29 May 1991, p.8086. 450 Harper, QPD, 29 May 1991, p.8087. 451 Lingard 1990, op cit,

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much that the Government had to re-employ those made redundant as consultants to help bail it out, when the Government said that there would not be any redundancies in the first place. What a shambles!452

The second flaw is the fact that the SES concept could have been implemented under the Public Service Management and Employment Act 1988 without the creation of an exclusive class of staff. The SES had three characteristics namely mobility, expertise in management and a sector wide perspective.

Under ss.16-17 of the Public Service Management and Employment Act 1988, staff could already be transferred between agencies. The 1991 legislation did not provide any additional mechanism for the movement of SES officers. No provisions were needed, or provided, to make expertise and management selection criteria, as agencies could already set the selection criteria for each position within the service. If a position was to be the equivalent of an SES it just needed the criteria to match. Finally, nothing prevented any staff adopting a sector wide perspective. Note that Story had been promoting the concept in the 1920’s. More particularly, nothing ensured that SES officers would adopt a sector wide perspective. Thus the legislation did not create a new type of staff member or new arrangements, it simply established a title. The only new initiative was the policy that SES would be content free management specialists.

It is possible to conclude that the creation of the SES was partly a political stunt. There has not been any review of the success or failure of the SES project in Queensland.453 Any review would be difficult as there were no benchmarks for measurement of success. Just as the government had not identified the deficiencies that the SES would correct, there are no criteria for reliable measurement of the improvements in management or administration that may have been brought about following the introduction of the SES. The failure to provide such an evaluation system is evidence of the insincerity of the introduction of the policy. But it was also a guarantee of success. The government could claim an improvement in public sector management in the safety of knowing that there was no mechanism which could prove they were wrong.

The sincerity of the National and Liberal Party Opposition to the policy must also be in doubt, as no action was taken to remove the SES when they took government.

5.2.4 Merit Goss said no definition of merit was provided in legislation because that would be confusing. Thus it was better to have an ordinary meaning. But Coaldrake provided a

452 Borbidge, QPD, 17 November 1994, p.10448 453 This excludes the arguments raised in Coaldrake & Whitton 1996, op cit., which was not a review as much as a restatement of earlier arguments provided by the PSMC.

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definition nonetheless: “’merit’ is the capacity of an applicant to best perform the tasks and duties of a position, having regard to state selection criteria and assuming a fair process.”454 He opposed the use of seniority as a measure of merit. Coaldrake believed, correctly, that time in the job was not an indicator of skill or aptitude. He acknowledged that meritorious appointment had been policy for many years but claimed it was being ignored. While he might have been right in practice, he was wrong on reasoning. First, he said previously seniority was the sole criterion of merit. This was not correct as has been spelt out many times above. Second, he thought that seniority related to time served, but as we have seen, in Queensland it was always a factor of salary level.

Coaldrake established a new system of meritorious appointment. All vacancies in the Queensland public sector would be advertised in the Government Gazette. Anyone would have the opportunity to apply in writing for an advertised position. A panel would then short-list applicants and carry out a further process, including an interview with a selection panel, which scored applicants on their aptitude for the position. The candidate with the most points would be offered the position. This was not the first merit selection process in Queensland, but was the first operated at all levels of management rather than by a CEO or central Board.

But the process was not foolproof. A government could circumvent the merit process. First, they could simply bypass it, appoint who they want, and weather the storm of controversy. Cooper also pointed out that seven new Directors-General were appointed without advertisement of the positions. The new Housing Commissioner had ALP ties. He was the former Housing Commissioner of the Wran and Unsworth governments and then a political staffer for the Federal Labor Minister for Housing. He was given leave from the former position to work for the Queensland ALP in the election. For example, Santoro, the Liberal MLA, said: Some of the current crop of chief executives are just faithful Labor Party stalwarts. I give as examples Craig Emerson, Leo Keliher and, of course, Dick Persson.455

Alternatively, the government could conduct a merit selection process and rely on the relative anonymity of the winning candidate to disguise lack of qualifications for the job. The preferred candidate would still win the selection process on points but inflated claims could be made regarding their merit.

454 Coaldrake P 1991, ‘Opportunities and Digestive Difficulties Associated with Queensland’s Public Sector Reform Agenda,’, reproduced in Davis G 1992, Public Sector Reform Under the First Goss Government: A documentary Sourcebook, Royal Australian Institute of Public Administration, Brisbane, pp.137-145, at p.139. 455 Santoro, QPD, 17 November 1994, p.10454.

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Just as seniority had been used in the workplace against government policy, Coaldrake’s intentions could likewise be ignored. Most significantly he said too heavy a reliance on the interview panel process would only mean the employment of the best interviewee, not the best person for the job.456 Unfortunately, 95 percent of interview panels rely solely on written applications and interviews. To his credit he said the PSMC’s merit selection process was not perfect but was more likely to find the best candidate than other methods. Also to ensure the best chance for internal staff it was up to departments to nurture their talent.457

Merit was intended to apply to all levels of government including ministerial offices. Despite the guidelines for applicants stating that selection is based solely on merit, the Opposition claimed that all successful applicants came from the ALP or a union.458 Gunn claimed that not only were all the old staff of Ministerial Offices removed, but a “verbal instruction” was given that no one from the old government, including all the administrative staff, could be re-employed in a Ministerial Office.459

Despite relying on merit, the Labor Party government was still subject to claims of patronage. The ALP was able, unlike its predecessors, to rely on the introduction of the merit selection process as an excuse for all appointments. By claiming that a merit selection process was conducted, the government put their opponents on the back-foot as they, in questioning the process, also question the integrity of the system and the members of the panel.

The Opposition agreed that the process was meritorious but there was a hidden criterion. During the debate on the Public Sector Legislation Amendment Bill in 1990, the then Leader of the Opposition, Russell Cooper said “Merit is not free-standing. A referee from the party, or indeed a party ticket – and most certainly a union ticket – are pre-requisites for working close to this Government.”460 He outlined specific examples of cronyism within the new government.

First, Cooper pointed to Dr Glyn Davis, who was conducting the review of public service under the PSMC, and was architect of the ALP policy platform on the issue. Cooper said Davis and Dr Pat Weller, also from Griffith University, advised the Opposition on reforms on machinery of government matters.461 He complained that Davis had also worked with parliamentary counsel on the Public Sector Management Commission Bill 1990 instead

456 Coaldrake 1991, op cit, p.140. 457 Coaldrake 1991, op cit, p.141. 458 Cooper, QPD, 20 March 1990, pp.478-488 459 Gunn, QPD, 27 March 1990, pp.694-696. 460 Cooper, QPD, 20 March 1990, p.487 461 Cooper , QPD, 20 March 1990, pp.478-488

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of the briefing coming from a department. Innes, the Liberal Leader, also questioned the appointment of Dr Davis as coordinator of the PSMC implementation unit, stating that he had little public service experience.462 Similarly, many cried cronyism at the appointment of Prof Peter Coaldrake to the PSMC.463 He was described as a Labor Party member from the 1970’s until the 1980’s, and of using his pre-election media presence to support the ALP. The Opposition believed that, as PSMC Commissioner, Coaldrake was a pawn of the Party.464 Goss replied that in the 1986 election the previous government had used Coaldrake as an expert in their campaign.465 Borbidge was more general and targeted the new staff from academia: “the merry band of Griffith University and ex-Griffith University intellectuals who, unelected and unaccountable, are effectively running the Government of this State.”466

Coaldrake had criticised the previous government for accelerated advancement of some staff in the ranks. But the new government could be equally suspected of the same process. Two examples which should have raised Prof Coaldrake’s ire were Kevin Rudd and Dr Craig Emersen. Both were political staffers in their early 30’s, with limited public sector experience, who were made CEO’s of departments; positions which require significant managerial experience.467 Each is now a member of the Federal Labor Shadow Ministry.

Cooper went on to claim that even attendants of the Parliamentary chamber have been demoted because of perceived political allegiance.468 The Opposition checked all published appointments against lists of Labor members.469 Grice also claimed that other institutions had been politicised including the CJC which was “stacked” with Labor lawyers.470 The raising of issues of potential bias is a valid and necessary part of the parliamentary process. However, the government rarely responded to the allegations. On an occasions when the government did react, Labor MLA, Terry Sullivan, claimed that if there were cases of cronyism in the current government, the appointments were justified because the Joh government sacked employees who belonged to the ALP.471 In other words, Sullivan proposed that preference for party members was justified to balance out the bias against them under the previous government. If this was allowed to stand, and other government members did not reject it, then it is an inverse spoils system; rather

462 Innes, QPD, 29 March 1990, op cit 463 Cooper, QPD, 30 March 1990, p.1056, & 6 November 1990, p.4377. 464 Harper, QPD, 19 February 1991, p.6133-6134. 465 Goss, QPD, 6 November 1990, p.4377. 466 Borbidge, QPD, 29 March 1990, pp952-957. 467 See for example, Harper 1991, op cit, p.6135; and Beanland, 29 May 1991, p.8090. 468 Cooper, QPD, 20 March 1990, pp.478-488 469 Sullivan, QPD, 17 November 1994, p.10457. 470 Grice, QPD, 17 November 1994, p.10486. 471 Sullivan, QPD, 17 November 1994, p.10457.

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than appoint friends out of favouritism appoint them as a compensation for past wrongs done to them. Of course this scheme would validate a reciprocal application of the policy when the government were to change again.

The Labor government claimed that all their appointments were on merit. Some academics backed these claims. Weller, when retrospectively discussing the design of Making Government Work472, said the aims of the PSMC included depoliticising the public sector, applying the merit principle and establishing the SES and CES.473 Several CEOs were unaffected by the changes, but there was a need for some appointments. All those taken from within the service – and all but one were – were appointed on the basis of their perceive ability… Certainly in these CEO appointments there was no consideration of political affiliation or party service. (emphasis added)474

No evidence was provided for this claim and it would be difficult to imagine how it could be tested. Weller also provided authority for the notion that partisanship in appointments is not politicisation as long as ministers replace CEO’s with another to develop a better working relationship, or, in today’s parlance, find a person that is more responsive.

Another academic commentator, Wanna, said the PSMC wanted to end the “closed shop mentality” of the Qld public service.475 As Wanna explained: Labor’s reform program was founded on the need to dis-assemble the familial basis of trust assembled over decades under non-Labor governments. It was not an attempt to capture the state and ‘politicise’ it with its own Labor sympathisers (or initiate a witch-hunt to depoliticise it from its National party orientations). Rather, the government sought to redefine the social relations extant in public bureaucracies hoping to make them more responsive to new priorities and political objectives.476 (emphasis added)

Weller’s argument seems to be contradictory. He claims the previous government’s relationship with its staff had to end because they worked too closely with their ministers, but the new system would involve staff being ‘responsive’ to what their ministers wanted. The only apparent difference between the two systems is which ministers were being served.

The Opposition also criticised the Goss government for appointing close associates to government boards. Beattie, speaking in 1996 as the then Opposition Leader, questioned some of the complaints about Labor appointments.

472 Weller P 1991 ‘Transition to Government,’ in Whip R & Hughes C (Eds) Political Crossroads: The 1989 Queensland Election, University of Queensland Press, Brisbane, pp.191-206. 473 Weller 1991, op cit, p.195 474 Weller 1991, op cit, p.201. 475 Wanna 1992, op cit, p.78. 476 Wanna 1992, op cit, p.79.

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Let us look at what the then Deputy Leader of the Opposition [Borbidge] said. He attacked Judy Carne because she was in some way associated with Peter Carne—her husband. He attacked Imelda Bradley because she was in some way associated with Gerard Bradley—they were married. That was Judy Carne's only sin—they were married. Yet this Premier thinks there is something wrong with that.477

What was ‘wrong’ was the pre-existing recognition in the Financial Administration and Audit Act 1977 and the Public Serviced Management and Employment Act 1988 that a benefit for a spouse was still a benefit for initial person.

The Opposition also made claims of direct politicisation in the form of line public servants being asked to involve themselves in the political decision making process. The clearest example the Opposition provided was in relation to the ‘Hiner Affair’. This extended investigation resulted from a whistleblowing incident centred on allegations that the government intentionally shredded paperwork that would have proved its guilt. The National and Liberal Parties claimed to have an agenda from a meeting between a Minister, Anne Warner, and her senior departmental staff in which they were asked to provide her with an assessment of the political fall out of the matter. A perusal of the agenda shows that it was a political meeting. The second item on that agenda after "Meeting commences with Minister" says it all—"Election issues". In parenthesis at the end of the agenda were these words: "need ministerial response to concept of 'family package' and marginal seat issues for the department"… The Minister was engaged in the blatant politicising of her department, or is it that the entire senior executive service is a Labor bastion and there is now no distinction between carrying out Government policy and doing political work?... That was not all. Also on the agenda was "Issues politically damaging". 478

Beyond specific cases such as the Hiner Affair, the Opposition saw a theme in politicisation, which Harper characterised as being based on ‘political correctness’ as a benchmark of success. The Opposition did not make clear what ‘political correctness’ meant. It appears they were referring to support of the ALP rather than the current use of the term in relation to overcaution for fear of causing offence. Harper said compliant and politically correct staff replaced experienced, but unbiased, public officials. Harper alleged that the favoured few would either serve well and be rewarded with preselection and a career in politics, or they would leave before anyone uncovered their incompetence.479 The Liberals agreed; Beanland complained that ‘good staff’ were being replaced with: …young, preened, party-politicised managers, the bulk of whom have come from outside the State… It wants a public service comprised of ALP minders and supporters. It wants people who will say “yes” to whatever proposition the

477 Beattie, QPD, 5 September 1996, p.2520. 478 Harper, QPD, 17 November 1994, pp.10446-10477. See also Santoro at p.10456. 479 Harper, QPD, 17 November 1994, p.10477.

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Government suggests, and who will provide the Government with advice that is in accordance with it philosophical leanings.480

While it is difficult to prove cronyism, and the Opposition claims are nothing more than allegations, there is evidence of vindictiveness. In 1990 several CEO’s and senior officers lost their positions. Decisions of this nature are not unusual during a change of government. If a new minister so desires, the departmental head, and possibly other senior officers, can be removed from their positions. But conventionally the officers would then be given other jobs at senior rank elsewhere in the agency. In Queensland this did not occur in many cases. The Leader of the Opposition claimed that seven CEO’s were removed “because they had been loyal servants of the previous regime…” Cooper said the officers did not expect to remain in charge of their departments, but they did expect that the Government would respect the well-established tradition followed by previous incoming Governments in this country.” That is, they would remain in their departments working in the same field but not have regular contact with the Minister.481 Instead these former CEO’s and many other senior officers were sent to accommodation in Normanby as part of what was titled the ‘Correspondence Unit’. Each officer retained their levels but had no work, no telephones or desks for the first three months, and no job descriptions.

The Opposition complained of the establishment of what they called “the Normanby Gulag”. They claimed that the Government tried to cheat these officers out of payments for their contracts. The Opposition said the Government did not want to provide redundancies. Allegedly the officers had to bide their time while waiting for a payout; if given long enough to wait, many would resign out of frustration.482 The Leader of the Liberal Party, Angus Innes, described the Gulag as inhumane. Innes said if the government could not afford to ‘buy out’ the officers’ contracts, then they should have been given meaningful work.483 They were deliberately put in a place with no staff, no equipment and no job… I think it was wrong to find non-jobs, hoping that the people themselves would buckle and resign… I do not think it is honest to try to deliberately create a psychological climate in which the person is treated so badly that out of self- respect he is forced to resign. 484

Cooper went further and claimed that vindictiveness was not restricted to the most senior as “dozens, and perhaps hundreds, of public servants have been placed in areas where they have virtually nothing to do.”485 He said junior staff of previous ministerial offices

480 Beanland, QPD, 29 May 1991, p.8088. 481 Cooper, QPD, 20 March 1990, pp.478-488. 482 Cooper, QPD, 20 March 1990, pp.478-488. 483 Innes, QPD, 29 March 1990, pp.945-950. 484 Innes, QPD, 29 March 1990, p.948. 485 Cooper 1990, QPD op cit,

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including stenographic staff, have been downgraded and humiliated.486 Harper added that across government, apolitical public servants who served the State well are being purged.487 Harper backed up his claim by pointing out that: One day in this House during question-time, the Premier was heard to indicate his personal conscious and self-conscious belief that public sector appointees of the former Government were somehow politically tainted. That was an unwarranted, gratuitous reflection on the impartiality of career public servants.488

Cooper said the purge was possible due to the positive regard in which the new government was held. Even public officials looked forward to a new beginning: Instead, they found a regime that was not just utterly ruthless but at least initially, in the first flush of victory, sufficiently sophisticated to appear with a sharing, caring face. Those who fell for that were soon exposed to the public Dr Jekyll and the private Mr Hyde.489

External commentators also criticised the ‘purge’. Wiltshire said the decision had a serious negative effect on the service: “The new philosophy has been the justification used to shuffle very large numbers of public service positions and people in a manner suitable to a newly elected government.”490 Wiltshire further alleged that the policy resulted in loss of professionals because they did not have “something nebulously defined as ‘management skills’”,491 loss of institutional memory,492 and a drop in public sector morale to record levels.493 But he did not provide detailed evidence to back up his claims

These activities were legal under the Public Service Management and Employment Act 1988. But they undermine the spirit of the legislation and policy statements of the government. They must raise doubt about the government’s commitment.

The Opposition took notice of the drop in popularity of the Government among the strong voting group of public officials. In 1990 Santoro warned: … public servants will not forget the shabby manner in which this Government dealt with the many loyal and dedicated public servants, from the rank of director downwards, upon its election in December last year. The Normanby Gulag will not be forgotten by those who were unjustly moved sideways in the hope that they would quietly and quickly go away.494

Consequently, when they took power in 1996 they set about trying to regain this voting block to their own side.

486 Cooper 1990, QPD op cit, 487 Harper, QPD, 29 March 1990, pp.960-964. See also Harper at 19 February 1991, p.6134. 488 Harper, QPD, 29 May 1991, p.8084. 489 Cooper, QPD, p.10505 490 Wiltshire 1992, op cit, p.264. 491 Wiltshire 1992, op cit, pp.270-271. 492 Wiltshire 1992, op cit, p.271. 493 Wiltshire 1992, op cit, p.272. 494 Santoro, QPD, 6 November 1990, pp.4502-4503.

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In summary, the PSMC introduced a uniform merit selection process for line managers to use when appointing and promoting staff. This was the first such system in Queensland. The system was not perfect and a disreputable panel could undermine it, but it seems to have worked in most situations. The Government depicted itself as relying on merit but the Opposition presented evidence to the contrary. Many staff were appointed outside the merit process and seemed to have relationships with the ALP. The government defended these appointments on the basis of having a need for responsive senior officials. The Opposition also criticised the ‘purge’ of senior staff who had worked for the previous government. Despite regularly raising this issue, the government rarely responded.

The Labor government had acted rationally. It had introduced a system that professed and practiced merit selection. But it had not always practiced the application of merit when it came to removing staff of the former regime and in promoting or employing loyal public servants. Thus it appeared accountable and ethical, which it could hardly avoid when compared with the scandals associated with the National Party, and was able to still conduct unethical practices without fear of electoral reprisal.

5.2.5 Conclusion Labor entered government characterised as both the ethical alternative and the harbinger of integrity in the system. From a policy perspective it was unprepared for this role. Fortunately, the previous government had already put in place the foundations of the Fitzgerald reform agenda. The ALP simply had to characterise its own policies as being complementary to that agenda to convince the public that the government was acting in their interest.

The Goss government had four policy goals including the return of tenure, the creation of the Public Sector Management Commission, the establishment of the SES, and ending contracts. The government did nothing to provide tenure and no steps were taken in legislation to change the existing status of employment under the Public Service Management and Employment Act 1988. The PSMC increased central control and succeeded in performing a strategic review of the service. The SES, whether a valid concept or not, was an unnecessary piece of legislation as it was possible to carry out the same program under the Public Service Management and Employment Act 1988. Contracts remained under the Goss government. Consequently, in six years the government only implemented two of its policy goals, those being the establishment of the PSMC and the SES.

While the PSMC was successful in fulfilling its role and functions, the SES lacked substance. An observer could measure the performance of the Commission by reading

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its functions under the Act and checking whether they had been carried out. For example, the PSMC was intended to review government agencies and completed such reviews on all but two departments. On the other hand, no list of tangible goals accompanied the establishment of the SES. The initiative was intended to improve management but there were no benchmarks by which this could be measured and judged. On the balance, the government was not very serious about achieving a high quality and ethical public sector, but it did have a suite of policies which it could present when asked to show it was acting towards this goal.

The support for appointments on merit was a principal policy in the presentation of integrity. However, while the policy applied to the routine positions within the service, the government was able to avoid the policy. It appointed people associated with the party and excluded those it suspected of having close ties with the National Party government. The Labor government maintained the control over appointments that had existed since the Public Service Act 1922, but had the added benefit of a public assumption that government was ethical that diverted attention away from questionable practices.

5.3 Borbidge Government 1996-1998 The Borbidge National-Liberal Party Coalition took power in 1996. Part of their campaign had been an attempt to obtain the support of the many disgruntled public servants. It is not surprising then that a major reform of the new government was the revamping of public service legislation. The new legislation was an attempt to both regain the faith of government employees and to return to the reform agenda commenced in 1988, and its focus on commercial ideals and market forces and away from centralised bureaucracy.

The members of the Coalition were more expedient than consistent. Once in government they did nothing to give effect to their demands of a return to values and tenure, the advancement of good service for the public, and the rectification of complaints they had made about Goss Government legislation. The SES remained, albeit in a modified format, and some CEO’s were replaced. However, the new government did abolish the PSMC and replace it with a Public Service Commissioner.

This section will examine the new legislation and the government’s performance. It will conclude with a brief discussion of the actions of the current Labor government.

5.3.1 Public Service Act 1996 According to the Premier, the Bill was introduced to correct a “cumbersome and costly procedural-oriented public service where results-oriented activities by line departments

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were often frustrated by too little authority and too many process requirements”495, namely the reporting to the PSMC and its authority. His goals were: ƒ more effective provision of goods and services; ƒ more efficient and flexible utilisation of resources; ƒ improvements in the accountability and responsiveness of the public service to the policy objectives of Government; ƒ increased openness and accessibility of decision-making processes for the community and the work force; ƒ and the creation of a highly skilled work force, with both management and workers committed to the achievement of specified objectives.496

While presumably the management flexibility would bring about the first two goals, Borbidge did not explain how the provisions of the Act achieved the last three goals.

The Public Service Act 1996 replaced the PSMC with a modified Public Service Commissioner structure. CEO’s retained their powers, but had to abide by the Commissioner’s guidelines and work under the Premier’s supervision.

As with every piece of recent Queensland public service legislation, the reason for the new legislation was the need to enable the public sector to operate effectively in the “rapidly changing world”. These changes included less money for expenditure and greater public demand for service.497 However, the Act did not include new provisions that would address the needs of this new world.

The first initiative under the Act was the provision that CEO’s were given the ability to determine not only how many non-SES staff the agency needed, but the level at which their jobs should be classified; a power the Cabinet or the Governor in Council formerly held. The Premier did not explain how this was meant to create greater cooperation between agencies.498 However, Borbidge could not claim to have improved the service as there was effectively no change on the provisions of the Public Service Management and Employment Act 1988.

Second, the Premier pointed out that SES officers would progressively be moved to 5 year contracts outside the awards and other industrial provisions about other employees. This is only a new policy not a component of the Act. No provisions provide for the mobility of SES officers. Also the SES had already been removed from awards and industrial jurisdiction, under s.15D of the Labor government’s Public Service Management and Employment Act 1988. Beattie, the Leader of the Opposition, said increasing contracting, which he claimed would be possible at any level of the public

495 Borbidge, QPD, 25 July 1996, p.1954. See also Simpson, 5 September 1996, p.2551 496 Borbidge, QPD, 25 July 1996, p.1954. 497 Grice, QPD, 5 September 1996, p.2530. 498 Borbidge, QPD, 25 July 1996, p.1955.

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service, would be a means of politicising the public service staff or contracts would be vulnerable to ministerial influence.499 Briskey further claimed that all CEO’s would be disadvantaged under contracts with the Premier. He did not explain how. He went on to say that this meant that there could no longer be any independent public servants as this relationship would politicise them.500 Just as under the Goss government, the argument ignored the fact that CEO’s were under contract and would therefore have been equally vulnerable.

The Opposition also claimed that the Bill had the ability to undermine industrial protections of public servants.501 Briskey claimed that public servants would lose their rights to industrial relations if they were placed under contract. He said the ability of the Public Service Commissioner to make any position a contract position would make the situation worse.502 SES officers already had no access to awards or industrial relations under s.15C Public Sector Management and Employment Act 1988. Also the Governor in Council could already declare a position to be a contract position under s.19(3). As Harper pointed out in the debate: “In other words, right now the Governor in Council has the power to declare, in effect, almost all the Public Service to be employed on a contract basis…”503 The argument is hypocritical as Labor had not changed any of these provisions while in office. Also, the number of SES on contracts had doubled to 10% of SES staff from 1993 to 1995 under Labor.504

The government pointed out that staff would have more security under a contract in the new system as the Public Service Commissioner would control contracts as opposed to the current version where there was no restraint.505 The Commissioner would also be able to issue directives to assist CEO’s through uniform processes without the old system of requiring central decision making.506

The third Opposition complaint was that the SES 1 level was to be disbanded and split into a new SO1 and SO2 ‘Senior Officer’ band. The government said this initiative would reduce the number of people who would be SES and thereby also reduce the numbers open to contracting. The new system was intended as a means of ensuring greater tenure as well as cutting costs as the new SO positions would not receive some of the perquisites associated with the SES such as cars. Harper predicted that almost half of

499 Beattie, QPD, 3 September 1996, p.2519. 500 Briskey, QPD, 5 September 1996, p.2528. 501 Bligh, QPD, 8 August 1996, 2230. 502 Briskey, QPD, 5 September 1996, p.2527. 503 Harper, QPD, 5 September 1996, p.2539. 504 Harper, QPD, 5 September 1996, p.2540. 505 Fitzgerald, QPD, 8 August 1996, p.2241. 506 Fitzgerald, QPD, 8 August 1996, p.2241.

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the officers would become Senior Officers and have tenure.507 Bligh complained that the creation of the SO1 and SO2 was sexist: Of course, the other effect of removing the SES1 classification is that which it will have on the gender balance in the Senior Executive Service. Currently the female members of the SES are concentrated in the existing SES1 level. I understand that the transition arrangements of the Bill preserve the jobs of all the people who are currently in those positions and that that will not change immediately. But make no mistake; the effect of this is to lower the glass ceiling.508

Bligh’s argument is simply a play on terminology. No women would lose their positions, no rules about admission to the SES changed and the women were paid the same and could still progress to the SES.

The government also raised the return of “experience” as a criterion. All honourable members are aware that over the past six years we went from a selection process based significantly on seniority to one based almost entirely on academic qualifications. Time and time again experienced and well-respected public servants were turned down in favour of individuals who had no experience but who looked good on paper because of their academic qualifications. Significantly, the Bill uses the term "experience" not "seniority", and it is aimed at ensuring that experienced people, no matter what their field of experience, can be selected. But it does flag that this Government places a premium on hands-on experience and a proven track record of results.509

However, this had no effect on the selection guidelines.

In the same manner as the previous Opposition before them, the ALP claimed that the change of government brought about a period of uncertainty for the public service resulting in fear and low morale.510 The ALP accused the government of having a “hit list” of alleged Labor supporters who would be removed from the public service as soon as the Coalition took office. They stated that hit lists destroyed a person’s reputation: “It is not just an attack on their professional standards, their competence and their ability to do their job; a list even refers to somebody's personal life. It does not get any smuttier than that.”511 The Opposition tried to avoid allegations of hypocrisy. Schwarton gave examples of known National Party acolytes whom the ALP had not sacked during its term of office.512

Bligh said: “The Premier took Government and removed a significant layer of competent and able people who did their job with integrity because he knew that they would not do

507 Harper, QPD, 5 September 1996, p.2538. 508 Bligh, QPD, 8 August 1996, pp.2239-2240. 509 Fitzgerald, QPD, 8 August 1996, p.2241. 510 Bligh, QPD, 8 August 1996, pp.2238-2239. 511 Beattie, QPD, 5 September 1996, p.2520. 512 Schwarton, QPD, 5 September 1996, p.2548.

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his bidding.”513 But Bligh’s claim was not valid given that the role of a public servant is to do the bidding of the government to the extent that they receive reasonable and legal directions. If a public official refused to comply with this requirement and also refused to resign their position, then the government would be justified in moving or removing them. The ALP had itself championed appointments based on responsiveness to the needs of the Government of the day.

The Coalition government’s new appointments were mostly senior executives from the late 1980’s who had been removed from office in the 1990-1991 reorganisation. The Opposition labelled the re-appointees “a trusted band from Dad's Army—a motley yet reliable crew of doddering cronies who can be absolutely relied upon to do their master's bidding.”514 Once again, it could equally be possible to praise them as being responsive. However, Bligh continued: “The same crew that was identified by the Fitzgerald Commission of Inquiry as the corrupters of public administration in the 1980s are back in their cosy positions as the lap-dogs of a corrupt National Party Government…”515 The allegations were untrue. Fitzgerald made no findings of widespread corruption in the public service outside the Police Service, and did not name any of the returning senior officers as having anything to do with the misconduct the Inquiry identified. Despite this fact, Beattie continued the theme saying that the government wanted to return to the “good old days” which, he said meant the “corruption-riddled 1980’s.” 516

Under s.27, the Premier’s function, as opposed to obligation, under the new scheme was assessing management practices and advising “departmental Ministers” of good practice to promote “effectiveness, efficiency, economy and appropriateness”. Thus it appears he could only provide advice leaving Ministers in control of their own departments. The Act gives the Premier interventionist powers. The mechanism for supervision under s. 28 allowed the Premier to request a CEO to report on any aspect of the Principles of service in Part 3 (explained below) in relation to their agency within a time period the Premier specified. If the Premier so desired, he could appoint a person to conduct such a review under s.29. This reviewer need not be from the department, or even from the public sector. The only publicised reviews under s.29 have been the review of the Office of the Director of Public Prosecutions, the then Public Service Commissioner conducted, and a consultant’s review of Queensland Health.

513 Bligh, QPD, 8 August 1996, 2232. 514 Bligh, QPD, 8 August 1996, 2233. 515 Bligh, QPD, 8 August 1996, 2233; see Grice, QPD, 5 September 1996, p.2530-2531, who responded to these claims. 516 Beattie, QPD, 5 September 1996, p.2522. Allegation of cronyism included the creation of an SES 3 job for long time National Party researcher Wendy Armstrong. (Beattie, QPD, 5 September 1996, p.2522) As it turns out this was a temporary appointment and the job level was determined by the use of the ALP introduced job classification methodology. (Grice, QPD, 5 September 1996, p.2531)

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The Labor Party claimed that the Act gave the Premier too much power over CEO’s. Bligh said the Premier could override CEO’s decisions, presumably through the Cabinet process.517 She said giving greater individual power to CEO’s the Premier had become more of a personal autocrat. Bligh did not explain how the diffusion of power to others constituted an increase of personal power, nor how the CEO’s had greater power than under the previous legislation. Cabinet has always had the power to override the decisions of public officials. The Westminster system ensures that this is the case as the officials, excluding statutory officials, are only agents of the Ministers and do not have full executive authority. The Premier was already the employer of the CEO’s under the Public Service Management and Employment Act 1988. The Governor in Council determined the terms of the contract and the Premier signed them as “representative of the Crown”. Thus Harper was correct in saying that: “The provision in the Public Service Bill naming the Premier simply recognises the existing constitutional practice.”518 The Opposition should have pointed out that the power of the new Commissioner would reduce the freedom of CEO’s. The government countered that the checks on the authority of the CEO’s would primarily arise from the new powers and functions of the Public Service Commissioner.519

Later in the debate, Bligh contradicted her earlier argument when she complained that the Public Service Commissioner and a CEO could conspire to change the nature of employment, despite being the ‘puppets’ of the Premier.520 Beattie pursued the same counter-argument when he pointed out that that the Premier would actually be a “captive” of his CEO’s, and be unable to do anything to override their bidding.521 Schwarten extended this line of argument by claiming that ambitious senior officers were the originators of this Bill.522 Thus there was incongruity on the part of the individual and several Opposition speakers.

Some Opposition members become disoriented when discussing the power they claimed that Premier would obtain. For example, Briskey provided the following contribution: This Bill allows the Premier to ignore the Parliament, his departmental heads and his Ministers. The changes proposed in this Bill totally ignore the longstanding tradition of the separation of powers. In future, there will be no need for Ministers. All that will be required is cardboard cut-outs. In many cases, cardboard cut-outs would be a vast improvement. The Premier will also be given the power by this

517 Bligh, QPD, 8 August 1996, pp.2236-2247; Briskey (ALP), 5 September 1996, p.2526. 518 Harper, QPD, 5 September 1996, p.2541. 519 Fitzgerald, QPD, 8 August 1996, p.2241. 520 Bligh, QPD, 8 August 1996, p.2238. 521 Beattie, QPD, 5 September 1996, p.2521. 522 Schwarton, QPD, 5 September 1996, p.2548 – “My experience in this place leads me to believe that the people who are behind this are an adviser, Mr John Sosso, and Mr Kevin Martin. Their hands are right through this.”

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Bill to direct the chief executive to make public servants redundant or redeploy them.523

Wells added a new angle to the criticism of the Bill. He pointed out that the Premier’s ability to review the employment and personnel decisions of CEO’s gave Queensland an American ‘spoils system’ of appointments. The Spoils System gives the President the power to appoint personally 1500 senior officials. This power results in a partisan bureaucracy with each senior officer’s future tied to the success of the President. Wells said even though the Public Service Commissioner was a statutory officer, his contract would effectively place him under the Premier’s control. Wells continued that this provision would in turn neuter the Ministers who would no longer have any control over their CEO’s. The latter would recognise the Premier as their real master and report directly to him. …all CEOs will be the Premier's creature as a result of these arrangements. They will report to him and they will be administered by a Public Service Commissioner who will be in his thrall, and the Premier, not their Minister, will be the other party to their contract…524

Curiously, Wells said the provision would make it more likely that an incoming government, presumably a Labor government, would take advantage of the provisions and replace the “hand picked” staff of their predecessor with their own. “What this Bill does is institutionalise discontinuity… The Westminster tradition of an independent Public Service receives its deathblow in this Bill.”525 Wells’ argument can be criticised for overlooking the system of “cleaning house” the ALP established in 1989, and the power of a new Labor government to ignore temptation and repeal the relevant sections of the Act.

In response to Wells, Harper argued that the new Bill would reduce politicisation. First, he said the Commissioner could issue directives and guidelines in relation to contracts, which would promote “a level playing field and a transparent process.” Second, the increase in tenured positions and its reliability would reduce temporary employment and use of contractors, which was an unscrutinised means of patronage.526 However, although tenure was not an option under Queensland legislation, the Act did not provide for either of these initiatives. Each was contingent on action being taken after the Act was commenced.

In summary, the purpose of the Act was to improve efficiency. The government returned to the Public Service Commissioner model but as a coordinator not manager. The control

523 Briskey, QPD, 5 September 1996, p.2528. 524 Wells, QPD, 5 September 1996, p.2541. 525 Wells, QPD, 5 September 1996, p.2541; see also Schwarten, p.2548-2549. 526 Harper, QPD, 5 September 1996, p.2540.

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of public service employment administration remained with the CEO’s but was increased to extend to the SES. All SES officers were moved to contract employment, and the reclassification of the SES 1 staff into non-SES Senior Officers halved the number of SES officers. The Premier was also provided with a formal mechanism to review agencies.

5.3.2 Discipline Section 87 provided the means for disciplining staff and is once again a repetition of the Public Service Management and Employment Act 1988; in this case s.29. The disciplinary power lay with the Director-General who could take action if an officer had: (a) performed the officer’s duties carelessly, incompetently or inefficiently; or (b) been guilty of misconduct; or (c) been absent from duty without approved leave and without reasonable excuse; or (d) contravened, without reasonable excuse, a direction given to the officer as an officer by a person with authority to give the direction (whether the authority derives from this Act or otherwise); or (e) used, without reasonable excuse, a substance to an extent that has adversely affected the competent performance of the officer’s duties; or (f) contravened, without reasonable excuse, a provision of this Act or a code of conduct.

A ‘code of conduct’ includes a code approved under the Public Sector Ethics Act 1994 or “any Code of Conduct, or other rule, policy or guideline, by which the authority has established a relevant standard of conduct.”527 Misconduct means “disgraceful or improper conduct” either in an official capacity or in an officer’s private life in a way that will reflect on the public service, which is effectively the same as the terms of s.4 of the Public Service Management and Employment Act 1988. Briskey challenged the validity of the extensive power provided under this section. Part 6 of the Bill is scandalous, too. The employing authority may discipline an officer if the authority is reasonably satisfied that the officer has been guilty of misconduct. Misconduct is defined as— "(a) disgraceful or improper conduct in an official capacity; or (b) disgraceful or improper conduct in a private capacity that reflects seriously and adversely on the public service." What is "disgraceful or improper conduct in a private capacity"? Who decides? Will this Government get Rona Joyner in to decide? I would not be surprised.528

Under s.88 there is no list of offences and corresponding punishments. The CEO can give any punishment that he or she “considers reasonable in the circumstances”, subject

527 Directive No 9/96 - Code of Conduct 528 Briskey, QPD, 5 September 1996, p.2529.

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to the Act and directives of the Commissioner.529 Under ss.3 the section provides the following examples of disciplinary action: (a) terminate the officer’s employment; (b) reduce the officer’s classification level and change the officer’s duties accordingly; (c) transfer or redeploy the officer to other employment in the public service; (d) forfeit or defer a remuneration increment or increase of the officer; (e) reduce the level of the officer’s remuneration; (f) impose a penalty on the officer of not more than the total of 2 of the officer’s periodic remuneration payments; (g) direct that a penalty imposed on the officer be deducted from the officer’s periodic remuneration payments; (h) reprimand the officer.

Under s.89, an officer liable to be disciplined can be suspended if “the proper and efficient management of the officer’s department might be prejudiced if the officer were not suspended.” In disciplining an officer the CEO must apply the principles of natural justice, except in the case of suspension on full pay.530

This system continued the disciplinary powers that existed under the Public Service Management and Employment Act 1988. CEO’s and ministers retained the power to make unrestrained disciplinary decisions based on vague offences with no guidance on sanctions.

5.3.3 Conclusion In summary, the purpose of the Act was to improve efficiency. The government returned to the Public Service Commissioner model but as a coordinator not manager. The control of public service employment administration remained with the CEO’s but was increased to extend to the SES. All SES were employed by contract, and SES 1 were reclassified as non-SES Senior Officers. The Premier was also provided with a formal mechanism to review agencies.

This system continued the disciplinary powers that existed under the Public Service Management and Employment Act 1988. CEO’s and ministers retained the power to make unrestrained disciplinary decisions based on vague offences with no guidance on sanctions.

529 To date no directives have been issued in relation to discipline. 530 S.90, Public Service Act 1996

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5.4 Beattie Government During the debate on the Public Service Bill 1996, Peter Beattie, then Opposition Leader, gave a commitment to make sure all appointments complied with merit. I table that letter, and I give that clear commitment in the record of this Parliament. The commitment given by me today and on previous occasions by the Opposition spokesperson on these matters, Anna Bligh, is very clear. We will return to the merit-based selection process that was instituted under a Labor Government, which is a fair and appropriate way to promote public servants.531

Labor took this to an extreme when they re-employed, without a selection process, CEO’s whom the Borbidge government had sacked. Beattie claimed that the return of these officers was valid, as the people in question had been selected on merit before the change of government and therefore did not need to be examined again.

Yet again, none of the issues the Labor Party raised while in Opposition were either amended or repealed once they took office.

However, when Beattie formed government, ministerial staff were excluded from the merit process via a directive of the Public Service Commissioner.532 Merit was also excluded from the employment of base-grade clerks and secondments.533 Other exemptions from merit can also be obtained from the Department of Industrial Relations for: a) Organisational restructuring; b) To implement machinery of government changes; c) Progressional arrangements for staff; d) Conversion of temporary staff to permanent public service positions at the same level; e) Extension of temporary employment on projects where specific skills are required (eg IT projects); f) Closed merit selection processes for pools of casuals or temporary employees to apply for permanent part-time or full-time positions; or g) To address one-off staffing anomalies.534

These exemptions are broader than the abilities the ministry in the 19th Century possessed. The government can also use the system of taking on consultants to reward staff. Consultants are paid in accordance with a contract arrangement.535

531 Beattie, QPD, 5 September 1996, p.2520. 532 Directive No 1/04 – Recruitment and Selection, cl.6.12 533 Department of Industrial Relations 2002, Best Practice Guidelines for Maximising Employment Security, Department of Industrial Relations, Brisbane, p.7. 534 Department of Industrial Relations 2002, op cit, p.7. 535 Department of Industrial Relations 2002, op cit, pp.9-10.

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The Department of Industrial Relations still refers to “tenure” positions, but does not define them. The Public Service Act 1996 says that all employment is either by tenure or contract: 69 Basis of employment—tenure or contract (1) Appointment as an officer in a department is on tenure unless— (a) it is decided that the appointment may be on contract for a fixed term; and (b) the chief executive declares it to be available on contract for a fixed term.

The Act does not define “tenure”. It would be fair to conclude that under the Queensland Government the word no longer means: “a period of office or employment that terminates, possibly subject to certain conditions, only on resignation or retirement.”536 The Office of Public Service directive on retrenchment illustrates this conclusion. The directive states that: 5.1 A retrenchment package may only be offered to tenured public service employees in exceptional circumstances with the approval of the Public Service Commissioner.537

Theoretically, if they had tenure, they could not be retrenched.

5.5 Conclusion This chapter dealt with the period from the commencement of the Fitzgerald Inquiry until the present day. Despite the conclusion of the Inquiry setting a public expectation for a higher standard of public administration, governments continued to act according to Downsian rationality by placing their own interests in advance of the public interest.

The period began with the publication of the Savage Report into the public sector. The Report recommended management changes that would introduce a private sector flexible management style. The recommendation was rational from the public’s perspective as it would result in greater efficiency within the public sector. Management was taken out of the hands of a central authority and given to the CEO of each government agency. Savage, and the National Party government, believed that increased independence of management would reduce bureaucracy and improve productivity. The National Party government passed the Public Service (Board’s Powers and Function) Act 1987 to remove the Public Service Board, and gave effect to the Savage recommendations in the Public Service Management and Employment Act 1988.

The government enthusiasm may have been a result of their rational beliefs in the benefits the passage of the legislation bring them. The Act allowed the government to appear to be bringing about public sector reform, but it did not address the ability of ministers to interfere in the management of appointments and promotions. Half of the

536 MacQuarie Concise Dictionary, third Edition. 537 Office of Public Service 1998, Directive 2/98, Retrenchment.

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claimed initiatives were already in place under previous legislation. In the final analysis, the removal of a central body reduced oversight and accountability and improved the influence of Cabinet over the public sector.

Labor took government on a platform of honesty and reform but many of the changes they introduced left open the opportunity for abuse. The need to be seen to implement the Fitzgerald reform agenda drove the government’s agenda. Their own goals to reorganise the management of the public sector were also implemented but were characterised as being a part of the same agenda. Labor returned to a centralised model with the establishment of the PSMC. But this body did not have the detailed powers of its predecessors and left human resources decisions in the hands of the CEO’s and ultimately the ministers. The PSMC was, however, successful in meeting its goals as a reviewing and coordinating body without management responsibility over agencies. The most significant line management outcome was the introduction of a universal merit selection policy, which, while not being perfect, provided what the public would regard as a rational means of determining and reviewing appointments. Labor also introduced the SES. However, this initiative was without substance as the legislative amendments to the Public Service Management and Employment Act 1988 did not change policy but simply added a new category of staff. No means was provided for evaluating the success or failure of the initiative. In the balance, the Labor government did very little to change the nature of public sector management. It left the Public Service Management and Employment Act 1988 in place and did not give effect to most of the complaints it had made about the Act when in Opposition. Consequently, ministers retained power over employment and public sector management.

The National-Liberal Coalition presented itself as a government that would return tenure to the public sector. They passed the Public Service Act 1996 on the basis of major reforms to the management of government agencies and a general improvement in efficiency. They replaced the PSMC with a new, less powerful, Public Service Commissioner, reduced the size of the SES, and placed the remaining SES officers on contracts. Otherwise the Act simply restated the provisions of previous Acts while presenting them as new initiatives. This system also continued the disciplinary powers that existed under the Public Service Management and Employment Act 1988. CEO’s and ministers retained the power to make unrestrained disciplinary decisions based on vague offences with no guidance on sanctions. Thus there was no substantive difference between the powers under the 1996 Act and its predecessors.

The Beattie government did not introduce any amendments to the Public Service Act 1996 to address the fundamental concerns it raised in the debate on the Bill. The current

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government has extended the range of exemptions from merit selection to the broadest range since 1863 and therefore greatly widened the ability of ministers and CEO’s to make direct appointments. Thus after a decade and a half of “reform” the powers over the public sector have less oversight and independent control than they did in 1922. The Labor and Coalition governments of the period have done little to improve accountability but consistently presented their actions as being more accountable than their predecessors.

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Chapter 6 Code of Conduct

The Electoral and Administrative Review Commission (EARC) was established to help Queensland reach the standards of administrative reform that had occurred in most other Australian jurisdictions; these included areas of governance and administrative law, such as freedom of information and judicial review. Scott said EARC’s main role was to ensure laws enabling judicial review of public decisions and protection against discrimination protected citizens from the power of the State.538 Less ideologically, it could be said the public would be protected from incompetence and laziness through accountability and mechanisms of review and correction.

The development of an ethical regime for the state government was a vital project for the restoration of administrative law and good governance in Queensland. Unfortunately, the evidence available does not demonstrate a rigorous approach to the development of the system. This chapter will show that low standards and confusing arguments resulted in a poor foundation for the ethics regime. The EARC Report’s findings, reasoning and conclusions are difficult to follow and lack a logical argument. In the end it largely restates the pre-existing situation. The government accepted the recommendations in substance, if not form, with little question. Also, the debate in Parliament was uninformed and missed the crux of the Bill. In fact, it was a lack of diligence, a consequent ethical obligation of the system, which brought about the result. Finally, after a decade there has not been a review of the system. The outcome is valuable, if not as effective as originally envisaged.

This chapter will discuss the EARC’s reform process in relation to its review of Codes of Conduct for public officials. It will commence with a brief overview of the Commission and its purpose. A more detailed coverage of its investigation into Codes will follow. Next the chapter will examine the output of this work namely the Public Sector Ethics Act 1994 and what it meant for the public service in Queensland. This section will be followed by a review of the reasons discussed in Parliament for the legislation and the flaws the Opposition identified.

6.1 Electoral and Administrative Review Commission The Electoral and Administrative Review Commission Act 1989 created the Commission whose role was to review the nature of government in Queensland. EARC completed twenty-six reviews. It operated from March 1990 to September 1993 when it was closed

538 Scott R 1995, Westminster or Yesminster?: senior public servants and the ambiguity of accountability, Inaugural Lecture, Faculty of Arts, QUT.

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down following a recommendation from the Parliamentary Electoral and Administrative Review Committee (PEARC).539 Despite recommendation A 2 of the Fitzgerald Report proposing that EARC be an “enduring independent process”, the PEARC had previously recommended that it be abolished when its “work was complete”.540 The Chair and Commissioners resigned their positions on 20 September 1993 and the legislation was repealed in the Parliamentary Committees Act 1995. There is a suggestion of hubris in the PEARC’s supposition that EARC had considered all that needed consideration in relation to administrative reform in Queensland.

A strength of EARC that is often overlooked is the integrity of its research and consultation process. The process began with the Commission’s initial research into the area. A discussion paper was subsequently published for public comment. The Commission took public submissions and held hearings and seminars. EARC published a report giving recommendations to government. Finally, the Parliamentary Committee overseeing the work of EARC then repeated the process.

The government reviewed EARC’s and PEARC’s recommendations and took them to Cabinet for consideration and possible implementation. Queensland Government Departments, had already provided submissions and had an exclusive forum in the Cabinet submission process to re-present their views and criticise others. However, this is a minor matter and there is no evidence of any significant departure which can be drawn specifically back to the machinations of public agencies. Stevens and Wanna credit the success of EARC, and its sibling the CJC, processes as: “Unlike government, the commissions sought public input and tended to approach issues from a technical and usually ‘best practice’ viewpoint, rather than an expedient or politically acceptable stance.”541 EARC’s independence made this possible and its reports to Parliament, rather than to Cabinet, improved opportunity for public debate and scrutiny.

Stevens and Wanna suggest that most of the reforms resulting from the EARC process should be credited to Fitzgerald rather than the Goss Government whose initial policies did not coincide with the agenda.542 On the other hand, the ALP policy had been developed over an extended period of time commencing before the final Fitzgerald Report and was unlikely to be able to predict Fitzgerald’s recommendations. Ransley argues that the Government took the option of largely implementing the EARC

539 Preston N & Sampford C 2002 Encouraging ethics and challenging corruption : reforming governance in public institutions, Federation Press, Annandale, NSW, p.109. 540 PEARC 1992 Report on the Review of the Electoral and Administrative Review Act, Queensland Parliament, Brisbane, p.67. 541 Stevens B & Wanna J 1993 ‘The Goss Government: An Agenda for Reform,’ in Stevens B and Wanna J (eds.) The Goss Government: Promise and Performance of Labor in Queensland, MacMillan Education Australia Ltd, Melbourne, pp.1-11, at p.7. 542 See Stevens and Wanna 1993, op cit.

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recommendations as part of its intention to be a reforming administration.543 The EARC process resulted in a fairly strong regime of fundamental administrative legislation that improved on the inadequacies of government Fitzgerald identified.

This section will discuss EARC’s work on the Review of Codes of Conduct for Public Officials. The section will begin with a discussion of the Inquiry, an examination of the arguments provided for the need for a Code, the ethics system EARC recommended and the ethical obligations.

6.1.1 Code of Conduct Inquiry EARC’s decision to review the issue of codes of conduct for public officials was based on recommendation A 10 (c) of the Fitzgerald Report, which stated: This Commission recommends that: 10 the Commission [EARC] implement and supervise the electoral and administrative reforms recommended in this report, and including: (c) formulation of codes of conduct for public officials.

It was not EARC’s nature to either ‘implement’ or ‘supervise’. But, it did research the issue and make recommendations. EARC provided the following explanation of its intention in addressing this exercise: 2.5 This Issues Paper is not primarily concerned to identify either a list of unacceptable or improper practices, or particular forms of official misconduct or public corruption, and seek public support for prohibiting them on pain of some punishment. It endeavours instead to identify, for consideration and discussion, a set of distinctive obligations which can be regarded as inherent in the concept of “public office”, and which, if properly understood and accepted, could serve as a meaningful guide and ethical standard for the conduct of officials and the judgement of others.544

Thus EARC’s goal was to develop ethical obligations to act as a guide. EARC regarded a Code of Ethics as covering specific duties and obligations of employees, while a Code of Conduct encapsulates the values upon which these duties and obligations are based.545 If this information is read with para.2.5 in mind it can be concluded that EARC wanted a broad set of positive guidelines which would characterise the type of behaviour expected of public officials, not be an enforceable list of provisions outlining unethical acts.

In the Issues Paper, EARC stated that ethical questions were too vague for sets of rules or laws to resolve.546 If this is true, there would be no value in producing anything more than a statement of ethical principles. But ethical principles on their own would serve little

543 Ransley J 1993 ‘Legal and Administrative Law Reform,’ in Stevens B and Wanna J (eds.) The Goss Government: Promise and Performance of Labor in Queensland, MacMillan Education Australia Ltd, Melbourne, pp.106-116. 544 EARC 1991, Issues Paper No.15 – Codes of Conduct for Public Officials, EARC, Brisbane. 545 ibid, para. 2.9. 546 ibid, para.3.21.

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purpose if they were not reflected in the rules of minimum standards of behaviour and if there was no sanction to enforce them. Ultimately agencies developed Codes of Conduct which form the basis of disciplinary action.

The normal EARC consultation process described above was undertaken in the investigation of Codes of Conduct including publication of an Issues Paper,547 holding public hearings, taking public submissions and the publication of a Report.548 EARC’s initial research before the Issues Paper included a survey of Queensland public officials, excluding politicians, to discover their understanding of and attitudes towards the 1988 Code of Conduct and ethics generally. The results of this survey informed the Issues Paper and need to be discussed in detail.

The survey was conducted in May 1991 with the following purpose: (a) to assess the extent to which the Code of Conduct for Officers of the Queensland Public Service is available to, and known to and used by, officials. The survey was particularly directed at those officials who might be expected to use the Code in connection with their official duties; (b) to identify particular ethics issues which are of concern to officials; and (c) to assess the extent to which officials are aware of, and comply with, the principles which underpin the Code of Conduct.549

At para.1.9 of the Issues Paper, EARC stated that 170 staff “were involved” in the survey. Appendix B of the same document contradicted this statement. The Appendix explained that 113 people were sampled, of which only 66% responded to the survey. These points raise some issues about the validity of the survey. First, paragraph 1.8(a) states that the survey was directed at specific persons, which implies a lack of randomness. EARC did not explain whether these persons were chosen at random from a larger target category, or whether the surveyors simply sent it to people they knew to have some dealings with ethics. Second, disregarding the claim of 170 persons, the final sample of approximately 70 responses is not statistically significant and would have a very wide margin of error. Therefore, the results of the survey were not a reliable indicator of service-wide attitudes or knowledge.

The survey had three problems with its content. First, respondents were asked to indicate, for example, how “ethical problems” are resolved in their office, even though no definition of ‘ethics’ was provided.550 Second, the survey included ethical scenarios with

547 Ibid. 548 EARC 1992, Report on The Review of Codes of Conduct for Public Officials, EARC, Brisbane. 549 EARC 1991, op cit, para.1.8. 550 Question 16.

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the intent of discovering how the respondents would have acted. But the questions were so vague that no ‘right answer’ would be available as a benchmark to measure responses. Consequently, it would be hard to see how any meaningful data could be gathered from these questions. Finally, while para.1.8 outlines a broad hypothesis which was to be tested, there is no explanation of how the results were interpreted to produce conclusions. Despite these problems the survey did contain good specific questions in relation to particular activities such as cronyism and financial corruption.

In the end, very little of the data from the ten pages of questions were used in the Issues Paper. The major findings referred to the lack of staff awareness of the 1988 Code of Conduct, despite a requirement that CEO’s ensure staff were instructed in the contents of the Code.

EARC wanted broad guidelines but departments wrote Codes of Conduct. The standard of the quality of research conducted in the Report was low. The document is confused and contradictory. No logical arguments support its major conclusions. The following sections will explain in detail how these flaws existed in the argument for the need for a new code, and the ethics system.

6.1.2 The Need for a New Code EARC’s argument that a Code is a mandatory requirement is confusing. This section will analyse aspects of the argument. First, it will summarise their arguments in relation to inadequacies of the Westminster Principles. Second, the section will discuss EARC’s requirement for consideration of public requirements and personal ethics.

6.1.2.1 Inadequacies of the Westminster Principles The Report dealt with the issue of “[h]ow public officials should use their powers or influence and the resources available to them and, more generally, the duty of trusteeship owed by all public officials…”551 This led to a definition: “Administrative ethics” in this Report therefore refers to the desirable standards by which elected and appointed public officials ought to use the powers, influence and resources of their official positions, and the duties and obligations characteristic of various categories of public official in the context of a democratic and responsible system of government.552

This issue dealt has been discussed at regular intervals in Queensland history. However, EARC believed the issue needed to be addressed again because of new developments that challenged the Westminster method of ensuring compliance with these goals. Under the Westminster system public servants are responsible to a Minister, who is responsible

551 EARC 1992 op cit,, para.2.3. 552 ibid, para.2.8

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to the Parliament, which is responsible to the people via the ballot box. But EARC said this process was inadequate to the task in the modern public service. In the Commission’s view, most attempts in Westminster democratic systems fail to provide standards for acceptable conduct of officials which are meaningful, consistent and usable, generally because they do not acknowledge that the application of standards of administrative ethics to particular circumstances depends on an interaction between functional (administrative), professional and personal ethics.553

Thus EARC recognised three categories of ethics relevant to the public sector: administrative, professional and personal ethics. EARC provided an argument in support of this claim but it lacks clarity and the three categories are not synthesised into a cohesive argument. Fundamentally, the Commission never made clear exactly what its use of the term ‘professional ethics’ meant or how they were to be distinguished from administrative ethics.

The Report attempted to demonstrate a conflict within the Westminster system, between “the public and private loyalties of public officials.”554 The Issues Paper said the Westminster principles were under attack from: the introduction of Senior Executive Services with their emphasis on ‘corporate management’ responsibilities, together with the increasing emphasis on accountability and responsiveness; risk management; freedom of information; merit protection; program and resource management; performance pay; corporatisation; and quality client service…”555

EARC did not explain why these factors threatened Westminster values. The Issues Paper stated that this undermining of Westminster principles removed a core set of values and, therefore, made the personal ethics of public officials, especially senior officers, even more important. But, the Report did not explain why this was the case.556 The Report provides no new evidence to support the assertion that the Westminster system is inadequate, other than reference to the “duplicity” of Sir Humphrey in the television series Yes Minister.

First, EARC argued that an official under the Westminster system could not ‘blow the whistle’ on the government, in the absence of some recognised system of whistleblowing.557 The Report gives the Creighton case discussed in Chapter 4 as evidence that such action was not allowed. This argument is weak. Creighton would not have been able to go to the press under the Whistleblowers Protection Act 1994 (see next chapter). Also, Westminster principles do not prevent bona fide whistle blowing.

553 ibid, para.2.46 554 ibid, para.2.50. 555 EARC 1991, op cit, para.3.13. 556 ibid, paras.3.4-3.11. 557 EARC 1992, op cit, para.2.53.

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Creighton was dismissed because there was no law to protect him. Thus Westminster Principles do not prevent whistleblowers, they are just silent on the point.

Second, the Issues Paper and the Report both refer to the Westminster system’s incompatibility with the Wilsonian proposal that Ministers make policy and public servants simply implement it. This is a reference to the future President of the United States of America, Woodrow Wilson’s, 1886 essay, in which he stated that politics and administration should be kept separate.558 Over time this statement was re-interpreted into the notion that the Executive should develop policy and the administration should implement policy. The ALP, and later EARC, held the view that any overlap of functions was somehow a corruption of the system. They ignored the fact that Wilson was a 19th century scholar in the United States. It was never his intention that his proposal be applied to the Westminster System and it is unlikely that the reinterpreted version would apply to the US government.

EARC did not explain why the thoughts of an American academic working under a non- Westminster system would be relevant to this discussion. Neither the Issues Paper nor the Report explained how the system should be changed to take account of Wilson, or how the concept would affect public sector ethics. In the end it did not matter as everyone except EARC ignored the Wilsonian issue.

While its own surveys showed that most public officials agreed with the Wilsonian model, EARC dismissed this response as merely “the prevailing view” rather than a reflection of reality. The relevant question in the survey was unreliable, as it asked respondents to agree or disagree with the Wilsonian proposal, rather than indicating whether they thought it was more correct than an alternative. Thus EARC was incorrect in drawing the conclusion that the Wilsonian model is the prevailing view. EARC contradicted itself in the Issues Paper in which it supported R S Parker’s list of the features of the Westminster system. Parker stated that Ministers and public officials are each involved in policy, and administration, with the final decision in both areas resting with the Minister.559

EARC confusingly summarised its proposals by saying that ethical obligations “…should be based on fundamental Westminster principles and that the interaction between an officer’s personal values and functional obligations should be recognised.”560 So in summary, the Report argued: 1. Westminster principles were inadequate for the modern public sector; 2. We should follow the Wilsonian model;

558 Wilson W 1886, The Study of Administration. 559 EARC 1991, op cit, para.3.6. 560 EARC 1992, op cit, para.3.1.

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3. But we need to protect Westminster principles from incursions; and 4. Ethics should be based on Westminster principles. It is difficult to see how these points could be reconciled.

6.1.2.2 Public Expectations EARC distinguished between a public official acting in their private life and their actions in their official capacity.561 Referring back to the definition of administrative ethics, the Report noted that there was no settled view of what these standards ought to be. The Report developed a Code based on community expectations of what public sector ethics should be, to resolve these issues.562

EARC saw public expectations as important for two reasons. First, in their view, ethics derive from community mores. EARC believed that public sector ethics should be based on the public expectation of how the public service should perform its role. This leg of the argument was sound. Second, EARC identified a logical obligation to serve the public trust arising from three sources: the position of public officials, including the character of an individual’s position, professional expectations of a public official and their personal ethics. The Commission considers that any public sector Code of Conduct needs to observe three overlapping criteria for “the public interest”: an elected government’s mandate and government policy, professional judgement, and personal ethical standards (to the extent that these reflect prevailing community standards). The Commission considers that any Code of Conduct must reflect the significant relationships among these criteria and in the context of the general principle that public office involves a public trust for which respect by office- holders is fundamental to democratic government.563

This proposition, according to EARC, leads to the recognition that a public official is a trustee of the public interest.564 The second leg of the argument was not sufficiently explained in order for it to be supported logically.

But the Commission did not explain how “professional judgement, and personal ethical standards” were relevant to policy development. However, a clue comes from a reference in the Issues Paper to Caiden.565 He said public servants must take responsibility for their actions instead of simply following orders.566 EARC did not pursue this issue or make it clear that they thought officials should take responsibility for their actions and not hide

561 ibid, para.2.4-2.5. 562 ibid, para.2.20. 563 ibid, para.2.82. 564 ibid, para.2.36-2.47. 565 EARC 1991, para.3.14. Reference to Caiden 1983, pp.160-161. 566 EARC did not mention outcomes or responsibility, except in relation to responsible government, instead relying on the “personal standards of an appointed official”. (EARC 1992, op cit, para.2.85.)

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behind the facelessness of bureaucracy. Further, EARC did not explain how concepts of responsibility were to be incorporated into their scheme of ethics.

The Report discussed the importance of recognising the coexistence of “professional and personal value systems”. It is difficult to differentiate these value systems as no clear definition was provided of either set of ethics. EARC placed some reliance on Finn’s public submission. Finn described a difference between the official’s role as employee of the government, with a duty to obey their employer, and the fact that every public official is also a member of the public, with a similar duty of serving the public interest.567 While both the elected government and the public servant are required to act in the public interest, public servants face a dilemma when they perceive that the actions of the government no longer serve the public interest. But the Report did not try to resolve this dilemma nor include any recognition of it in the final recommendations.

EARC kept returning to the point that an official’s personal ethical standards are subjective. But reliance on subjective beliefs seems incompatible with the role of the unbiased public official especially when the public servant’s personal beliefs conflict with government policy. EARC rejected the consensus of opinion in the submissions that the personal ethics of officials was separate to their workplace ethics. The Commission believed that ethics designed for the workplace would be insufficient to resolve some issues and would limit ethical thinking. EARC said personal ethics stand as a form of review of the internal ethics of the organisation to test the validity of arguments and as a source of new insight. Refusal by an organisation to admit the relevance or legitimacy of the individual’s personal ethics denies the possibility of discussion and compromise. It also denies the moral autonomy of the individual, and rules out the chance of hearing moral insights other than its own.568

Personal ethics also provide a trigger to identify unethical behaviour. In the Commission’s view, the ethical climate of an organisation benefits when officials are not expected to “leave their personal ethics at the door” when they come to work. Personal ethics, grounded in and consistent with a particular culture and value-system, provide an essential framework for evaluating an organisation’s practices and values from a viewpoint outside the organisation, thereby preserving a crucial form of accountability to the community which, in the case of public bodies, sustains and “owns” them.569

EARC said some test would be needed to ensure that the community values were complied with, when it recommended: …Codes of Conduct… recognise a legitimate role for an official’s personal ethical standards as a test of “rightness” of an action and the necessary inter-

567 ibid, para.2.57-2.61. 568 ibid, para. 2.88 569 ibid, para. 2.89

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relationship between functional obligations (including employment obligations) and personal ethics.570

It followed this recommendation with a reference in para.2.91, to a ‘rightness test’ which was provided in the draft Bill contained in an Appendix to the Report. This test is as follows: cl.14(2) Having regard to the obligation under subsection (1), an appointed public official - (b) must ensure that any conflict that may arise between the official’s personal interests and official functions is resolved in favour of the public interest.

But this clause does not provide the type of test EARC implied, because cl.14 only relates to conflicts of interest. Conflict of interest involves a decision making process where the possibility of obtaining a personal benefit influences a person, rather than the use of personal ethics to review actions. Presumably, EARC means that personal ethics, grounded in community values, would be a benchmark for the public interest against which actions or decisions of public officials could be measured.

Later in the Report, EARC said public officials should also use their professional ethics in their daily interpretation of situations and the code, in undefined “appropriate circumstances.” While EARC recognised that the elected representatives define the public interest, they said officials should use their professional ethics “to the extent that they are broadly consistent with the values of the community” to interpret their Code.571 But elected officials decide what is in the public interest. EARC did not provide a mechanism for resolving conflicts between their own perception of the public interest and the elected government’s interpretation.

Presumably, professional ethics can fall into the same trap. They are unlikely to be a sound reflection of the ethics of a pluralistic society. Also, we still have the problem that if a public official makes judgements based on professional values then they would subvert the elected official’s prerogative to determine the public interest.

EARC said officials should give priority to their employment relationship with the government, but should seek a compromise when there would be a clash between the intentions of their employers and their professional ethics. This compromise should be based on the Minister’s right to determine the correct course of action.572 But surely if the Minister has such a power, and the power is given recognition and precedence, there will not be any compromise. The public servant is not in a position to compromise graciously with the ministers. They did however say: “Officials are not bound to follow official

570 ibid, para.2.90. 571 ibid, para.3.72-3.73. 572 ibid, para.3.76-3.80.

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instructions which are clearly unlawful or immoral. An official has an obligation to test what appears to be an unlawful official instruction against the higher moral or religious/ethical/human rights standards adopted by the community.”573 However, if an instruction is illegal it should not be followed regardless of the public servant’s morals. Also EARC gave no instruction what a public servant should do in practice if faced with what they regard as an immoral policy.

In summary, EARC recognised that public officials make decisions which affect the lives of ordinary citizens, and have a stewardship of the public resources.574 Their view of administrative ethics was limited to officials acting in the public interest and like other professionals, public officials should “subordinate their own personal interests to those of their clients, the profession and the community at large, and to act in accordance with those other interests.”575 EARC said a person should judge public policy based on their, undefined, professional and personal ethics, to the extent that they coincide with the consensus of belief in the community. But they did not explain whether such a consensus can exist in a pluralist society. The Report said personal ethics played an important role in the proper interpretation of a code, but they made an insufficient argument as to why this is the case and left the issue as an impractical aspirational statement with no means for its implementation or interpretation.

6.1.3 Ethics system In contradiction with their earlier statement that Codes of Conduct were insufficient to deal with ethical issues, EARC later stated that an effective code required both a statement of principles – a Code of Ethics – and specific provisions setting out acceptable behaviour in certain scenarios – a Code of Conduct. EARC proposed that Codes of Ethics on their own would not provide a guide for dealing with an individual case of a breach, and a Code of Conduct without a philosophical background could not give managers the ability to deal with new situations the provisions did not cover.576

EARC said a Code of Conduct could be either heavily proscriptive or aspirational. The “Justinian Code approach” of trying to provide specific provisions for every offence, was used in the United States and resulted in too much complexity and regulation. Alternatively the “Ten Commandments model” provided broad statements of behaviour but did not assist managers in deciding whether a specific instance of behaviour was unethical.577

573 ibid, para.3.83. 574 ibid, para. 2.2. 575 ibid, para.2.7 576 ibid, para.2.99-2.100. 577 ibid, para.3.13-3.19.

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The Report said the need for a formal code rested on the “cultural pluralism and the pace of change in our society”, but failed to explain why. It added that “while government has no business regulating an individual’s morality, Codes of Conduct for public officials have a valuable role to play in restoring and maintaining community confidence in public management…” but once again did not explain why.578

EARC settled on a code that stated fundamental principles, covered generic ethical rules for all public officials and also provided agency specific adjuncts. The latter was seen as important in providing ‘ownership’ of the code and would allow the experienced staff to amend or make additions to meet their own needs.579

It was recommended that Codes of Conduct were more constructive and therefore preferable to Codes of Ethics. The view taken by the Commission is that Codes of Conduct, properly structured, supported and implemented, have the potential to serve a number of useful purposes, and that governments and administrations have an obligation to develop, promulgate and live by such codes.580

In the end, the Report recommended that a formal Code of Conduct be developed, but did not determine whether it should be Justinian or a form of Commandments.

6.1.4 Ethical Obligations EARC recognised that while there was general agreement on the need for public administrative ethics, there was no consensus as to their nature or how they should be assessed.581 The Report set out to develop what became the ethical principles contained in the legislation. The fundamental ethical obligations EARC recommended and which were incorporated in the Public Sector Ethics Act 1994, were: • Respect for the law and the system of government; • Respect for persons; • Integrity; • Diligence; • Economy and efficiency.

EARC said the principles were developed to reflect the role of public officials as trustees of the public trust within a Westminster tradition.582 The origin of the five ethical

578 ibid, para.3.28. 579 ibid, para.3.42-3.44. 580 ibid,para.3.27 581 ibid,para.2.13 582 ibid,para.2.63

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obligations is not explained other than it was developed after examination of “the Queensland Code, numerous other codes and the relevant literature.”583 Corbett congratulated Queensland for the inclusion of ‘respect for persons’ as an ethical principle which moved away from the “minimalist” work of other Australian jurisdictions.584 What Corbett failed to notice, and EARC failed to acknowledge, was the great similarity between the EARC ethical obligations and the key values of the 1988 Code, namely: • Serving the elected officials by effective and efficient achievement of government goals; • Integrity; • Political impartiality; • Respect for persons; • Justice and equity in dealing with internal or external people.

EARC recognised the guiding principles were vague aspirational statements and did not need to be specific.585 The Commission intended that the Codes would spell out standards of conduct to restore or maintain community confidence as well as assist new recruits and existing staff in problem solving. If management did not publish codes for staff, management would be held accountable.586

EARC made detailed recommendations in relation to the content of generic provisions. These conformed to the 1988 Code in relation to treating other staff members, standards of dress, use of alcohol and drugs, use of official resources and following lawful directions. In fact, the Code gave similar emphasis to the areas of conflict of interest and public comment.

Thus EARC largely reintroduced the existing 1988 Code of Conduct under a new administration and legislative framework. The significant difference was that each agency developed a tailored Code.

6.1.5 Implementation A chapter of the report was devoted to implementation of the ethics regime. EARC recognised that the mere presence of a code would not ensure that staff complied with its provisions.587 Three areas needed attention:

583 ibid, para.2.63. 584 Corbett D 1997, ‘Serving the Public: six issues to consider’, in Clark, G.L., Jonson, E.P. and Caldow, W. (eds) Accountability and Corruption: public sector ethics, Allen and Unwin, St Leonards, NSW, p. 17. 585 EARC 1992 op cit, para.4.45 586 ibid, para.3.28-3.29 587 ibid, para.8.15

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(a) Mechanisms were needed to allow values to be discussed meaningfully, and encourage staff to recognise and contemplate ethics issues. EARC believed that staff would ignore the Code if they did not understand its contents and its relevance to the workplace; (b) Organisations had to incorporate the code into their “practices and structures”. It had to “practise what it preaches”, and punish breaches of the Code; and (c) Senior officers had to understand that if they did not provide leadership by exemplifying the Code, other staff were unlikely to comply.588

The remaining recommendations were procedural. The overall model was as follows: (a) “the creation of a formal regime (consisting of a Public Sector Ethics Act [the Act] and agency specific codes) for the management and development of ethical behaviour in the Queensland public sector; (b) the declaration in legislation of specific identified ethical principles as fundamental to good government and public administration; (c) the prescription in legislation of consequential obligations in relation to the conduct of officials; (d) an independent administrative agency [the Office of Public Sector Ethics] and related advisory body responsible for the administration of the Act; and (e) a range of training, advisory, reporting, consultative, investigative and adjudicative functions which are to be undertaken or performed as necessary or expedient to give effect to the Act.”589

As with most recommendations made to government, the final version was of a different character. PEARC, Cabinet and Parliament reviewed the recommendations before the system was implemented. Only the first three parts of the model were implemented in the form of the Public Sector Ethics Act 1994.

6.1.6 Conclusion EARC wanted broad guidelines but departments wrote Codes of Conduct. The standard of the quality of research conducted in the Report is poor. The document is confused and contradictory. No logical arguments support its major conclusions. The confusion is demonstrated in the Report’s treatment of the Westminster principles. The Issues Paper and the Report said Westminster principles were inadequate for the modern public sector and that the public sector should follow the Wilsonian model of separating policy and administration. However, the Commission also said the sector should protect

588 ibid, para.8.17 589 ibid, para.8.81

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Westminster principles from incursions, and ethics should be based on Westminster principles.

EARC’s discussion of the need for reliance on a public servant’s personal ethics was also confusing. The Commission reasonably proposed that personal ethics be used as a trigger and guide when deciding the morality of a proposal, it was unclear on whether the government’s ability to determine the public interest should take precedence over the ethical mores of the individual public servant. EARC also suggested that a public servant take action when they saw a conflict, but gave no guidance on what steps to take.

Similarly, EARC presented arguments for a formal Code of Conduct but did not determine whether it should be Justinian or a form of Commandments.

Finally, EARC’s recommendations for the ethical obligations and the content of the Codes were mostly a reintroduction of the 1988 Code of Conduct under a new system.

6.2 Parliamentary Committee Report The PEARC did not critically review the justifications EARC provided. Rather it focused on the administration of the Act. The Committee said it aimed to do this by: “simplifying the model proposed by EARC, empowering individual agencies to prepare and implement Codes of Conduct that will be responsive to their circumstances and needs, and integrating the administration of Codes more fully into agencies’ own investigative and disciplinary process.”590 The key change therefore was a shift of power from EARC’s recommended Office of Public Sector Ethics to the individual agencies, with final approval of Codes sitting with the Minister within whose portfolio the agency sits. This recommendation brought the model in line with the decentralised management system under the PSME Act 1988.

6.3 Public Sector Ethics Act 1994 The government implemented an Act to give effect to some of EARC’s recommendations. While the legislation was based on EARC’s draft Bill, the final product was significantly different and more in line with Downsian behaviour of a Party in power, that is, it was a presentation of accountability that was devoid of accountability measures. This section will analyse the nature of the debate in Parliament and the implementation of the provisions of the Act.

590 Parliamentary Committee for Electoral and Administrative Review 1993 Codes of Conduct for Public Officials, Legislative Assembly of Queensland, Brisbane, para.4.1.2.

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6.3.1 Debate Goss began his Second Reading Speech with the thesis behind the Bill. It will be shown that, like the EARC report, the speech lacks logic and substance. It may seem pedantic to criticise the Premier in this way, but this carelessness with language and facts when presenting a Bill is indicative of a lack of concern for the contents of the Bill. If the Premier had cared, and the content of the Bill mattered, drafting of his speech would have been more rigorous. He said the Bill was not developed in response to a perception of recent unethical conduct, and gave two reasons for the introduction of the legislation.

First, the Westminster principles were no longer “relevant”. This was a reflection of the same unjustified argument EARC produced that government had changed and the Westminster principles belonged to another age.

Second, the world was changing and new dilemmas would arise.591 These new dilemmas included technological change, social change, modern public sector management, and the complexity of modern life including an increase in the number of competing interests.592 While it is reasonable to plan for change, the Premier did not explain the nature of these changes, how they had created a need for new ethics, or how the new ethical principles would resolve the dilemmas. Perhaps he intended that the decentralisation of codes would provide the flexibility necessary for agencies to adopt ethics to the changing environment.

The Premier said the government agreed with PEARC593, and this Bill was focused on professional ethics of the workplace rather than the personal ethics of individual employees. Professional ethics were also characterised as the correct behaviour in the role of public servant in a Westminster system: “…or what the Fitzgerald report called "the proper relationship between Ministers and officials", rather than the personal moral standards of individual public servants.594 This is contradictory as he already said Westminster conventions were superfluous.

Lingard raised the Premier’s initial reference to the failing relevance of the Westminster system as an indication that the government would remove the protections inherent within the structure of the Queensland parliamentary system. “The real agenda of this Goss Government is to rid the checks and balances that the Westminster system imposes upon the public sector.”595 By relying on academics to provide the new structure

591 Goss, QPD, 19 October 1994, p.9686. 592 Goss, QPD, 19 October 1994, p.9686 593 Goss, QPD, 19 October 1994, p.9686 594 Goss, QPD, 19 October 1994, p.9687 595 Lingard, QPD, 17 November 1994, p.10466.

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of the public sector they were creating a culture that could undermine the Westminster principles. The wisdom behind attempting to impose a cultural change within the public sector in reaction to such societal changes is moving onto dangerous ground for this Labor Government, dangerous ground which has never been tested except within the theorists' textbooks and seminar presentations. The premise that a theoretical model of public sector management works under the direct guide of the Executive Government of the day is in direct contradiction to the principles of the Westminster system.596

The Liberal Party agreed with the Premier that there were: …massive changes in our society, our laws, our economy and our outlook on how Government should operate, it is imperative that changes be made in the bureaucracy. The public sector has to be made more accountable to the community and more receptive to the changes that are occurring on the outside. It has to have more of a customer focus, it has to become more entrepreneurial and it has to become more efficient and effective.597

However, the Opposition did not see this Bill as the solution but introduced an entrepreneurial management style in the Public Service Act 1996. The Premier did not try to defend this claim, explain how the Bill would address the need for a new paradigm, or explain the paradigm.

Goss’s third reason for the Bill was to create: “…a comprehensive approach to setting appropriate standards of professional ethics for public servants and other public officials who make decisions, exercise powers and control taxpayer-provided resources on behalf of the Government.”598 The system was comprehensive in so far as it provided for the boundaries of ethical behaviour and the education of staff. It may be agreed that, as the Bill left out some aspects of the recommendations EARC and PEARC put forward, particularly the establishment of a supervisory body, it is hard to see how it could be regarded as comprehensive. However, the Act is comprehensive in the sense that it applies one system to all government agencies. All public sector legislation has provided a system for the public service, but the PSE Act extends an ethics system to agencies the Public Sector Management and Employment Act 1988 does not cover.

Goss characterised the Bill as both aspirational and disciplinary. This approach was necessary because Goss claimed codified rules without accompanying aspirations “have rarely been effective.”599 He did not explain why codes needed aspirations or why this Bill was effective. In fact the Premier lauded the Bill’s disciplinary nature as advancement in good government, as if the Queensland government had never had disciplinary powers. The Act did not mention discipline and relies on the Public Sector Management and

596 Lingard, QPD, 17 November 1994, p.10467. 597 Santoro, QPD, 17 November 1994, p.10453. 598 Goss, QPD, 19 October 1994, p.9686 599 Goss, QPD, 19 October 1994, p.9687

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Employment Act 1988 which confers on CEO’s power to apply sanctions to those public servants who breach codes of conduct.

Goss said Codes would cut down on bureaucracy, as they would lead to: ”…reduced time spent by managers dealing with unacceptable conduct, increased effectiveness of disciplinary action, reduced waste and inefficiency, and increased public confidence in the integrity of Government administration.”600 Once again these claims were not backed up with supporting argument. Perhaps the creation of Codes would clarify the nature of misconduct and, being tied into disciplinary procedures, would reduce arguments over just what constitutes unethical behaviour. If so, Goss did not explain how this conclusion was reached. Neither the Act nor the Codes clarified the vague disciplinary terms in the Public Sector Management and Employment Act 1988, such as ‘disgraceful conduct’ and ‘unfitness’ for service. Also there was no procedural change in the disciplinary process.

Borbidge also disputed the Premier’s claim that the Codes would be more efficient than present systems claiming they would add a new layer of red tape for public servants.601 The Opposition also believed that an external body should be in charge of the administration of the Act rather than the PSMC. They claimed to have SPSFU support for this proposal, as the union did not think the PSMC would be sufficiently independent.602 But, the Act did not give anyone legislative review powers and agencies were responsible for their own reporting in their annual reports. No room remained for the type of political interference that would change the nature of the ethics system.

The Premier concluded with more unsupported rhetoric: The Public Sector Ethics Bill will ensure that Queensland's public sector codes of conduct will be more relevant to the circumstances in which they apply, better understood by the officials to whom they relate, and a more useful source of guidance for officials dealing with the complexities of modern public administration.603

The greater relevance and understanding may have been intended to be derived from consultation with stakeholders and users. Such a process, if correctly implemented, could result in staff incorporating issues relevant to their workplace in a user-friendly manner. As Goss said in his reply to the Second Reading debate, rather than legislate for ethics, the Bill was designed to help create an ethical culture.604

The National Party Opposition was supportive of the general tenets of the Bill but raised some issues of substance. Relying on the work of Dr Noel Preston, Borbidge, the

600 Goss, QPD, 19 October 1994, p.9689. 601 Borbidge, QPD, 17 November 1994, p.10446. 602 Borbidge, QPD, 17 November 1994, p.10445. 603 Goss, QPD, 19 October 1994, p.9687 604 Goss, QPD, 17 November 1994, p.10471.

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Opposition Leader, claimed that no new ethics will be introduced as codes are an ineffective method of introducing ethics.605 This argument relied exclusively on the authority of Dr Preston. Borbidge offered no solutions and did not identify what was wrong with the existing system.

The Opposition also supported the notion of the creation of an ethical culture within the public service. However, they predicted that since the Goss government had politicised the public service, the service would not work towards the development of an ethical culture.606 However, most of their ire rested on the fact that the Codes would be developed in-house under the authority of the CEO’s and the Ministers. Borbidge complained that there would be no parliamentary scrutiny of codes. The Liberal Party shared their concerns. They claimed that the broadness of the ethical obligations gave CEO’s and Ministers “carte blanche” to develop their own codes. 607 This initiative could leave the way open to politicisation and corruption. We really want public servants to do what is best for the people, not for those who befriend or, indeed, as often happens under this Government, enrich them.

An additional issue raised in the second reading debates was the conflict between Westminster principles and the Act. Specifically, the relevant minister had to sign off each Code, which placed ethics under ministers’ direct control. Codes would therefore be open to ministerial manipulation and change, rather than remaining an inherent obligation of service.608 In response to these concerns the Premier pointed out that Parliamentary oversight would be “burdensome” and “unnecessary”. Parliament had the opportunity to review ethics development, as CEO’s have to report on the implementation of the Act in their agency in annual reports.609 It can be added, that the Act required that Codes would be publicly available therefore a member of parliament could examine them at any time.

Given the public and the service’s low level of interest in the Codes, there have been no cases arising of ministerial interference. However, under the current legislation, nothing would prevent a minister refusing authorisation of a Code that was found to be disagreeable. As of October 2006, a search of Hansard has shown neither side of the House had debated any issues arising from the content of a Code of Conduct.

In conclusion, the Premier said the Act was needed because the Westminster principles were out of date, and a changing society required new ethics. He did not explain how these conclusions were reached, whether they were justified or how the Act would

605 Borbidge, QPD, 17 November 1994, p.10445. 606 Borbidge, QPD, 17 November 1994, p.10446. 607 Santoro, QPD, 17 November 1994, p.10454-10455. 608 See Lingard, QPD, 17 November 1994, pp.10466-10467. Also Beanland, on pp.10463-10464. 609 Goss, QPD, 17 November 1994, p.10473.

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address these concerns. Goss also said the legislation’s objective was to provide Queensland with a comprehensive approach to public sector ethics. He succeeded in so far as the entire public sector was brought within the Act, but the outcome was not comprehensive in providing a vertically integrated system of ethics. Finally, the Premier said the Act would improve efficiency of discipline and ethical conduct. But he did not provide any evidence to support this statement. The Opposition supported the Bill but they were suspicious about the ministers’ ability to approve Codes. They ignored their own ability to both view the publicly available codes and debate them in the House.

Thus the government acted rationally in the Downsian sense. It introduced an Act that would lead to neither investigation nor disclosure of unethical conduct by public officials. Thus it would not endanger the government. Their lack of sincerity in passing the Act can be demonstrated by the disregard for detail evident in the Premier’s arguments in the House.

6.3.2 Implementation The Public Sector Ethics Act 1994 provided the aspirational aspect of the Queensland ethics regime. It was aspirational in the sense that it set ethical principles in broad terms which reflected EARC’s determination of the values which it wanted public officials to emulate. The Act requires that all public agencies develop Codes of Conduct and educate their staff in the nature of their obligations under the Code.

As noted above, Goss said in his reply to the Second Reading Debate, that the aim of the ethical principles was “to try to help encourage and cultivate a new ethical culture… we cannot legislate for ethical behaviour; what we can do is try to legislate for a framework or a vehicle that will encourage that culture.”610 However, despite its title, the Public Sector Ethics Act 1994 establishes obligations and codes rather than simply providing guidance. This reflects a hard-line on ethical breaches as the core response to misconduct. The strength of the Act was to tie ethics to values and a specific role. However, despite the aspirational character of the legislation there was nothing to inspire the public officials towards this goal or any sanctions for performance beyond minimum compliance. The sanctioning power comes currently from s.87 of the Public Service Act 1996, and before it the Public Sector Management and Employment Act 1988, which allows a CEO to discipline an officer for a breach of a Code. In practice this means that discipline would follow the breach of a specific obligation or rule in the agency’s Code, rather than a generalised failure to comply with an ethical obligation. The force for such change was to have come from the supporting staff working in the office which was to have administered the legislation.

610 Goss, QPD, 17 November 1994, p.10471.

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The government did not institute EARC’s recommendation for a central body to administer the Act. Instead various incarnations of what is now the Office of Public Sector Merit and Equity (OPSME), administered the legislation. While the OPSME mentions ethical conduct in publications, this agency has never had sufficient resources to carry out the role EARC intended. Since the passage of the legislation the number of staff dealing with public sector ethics has varied from one to three. Consequently, the OPSME’s role has been simply a lead agency policy function as well as providing minor educational and advisory support to agencies. Reviews of recent OPSME annual reports do not include a large output in the area of public sector ethics.

However, reflecting EARC’s original intentions, the Public Sector Ethics Act 1994 does contain further obligations on the part of CEO’s to develop a code in consultation with their stakeholders, and to provide ethics education. Unfortunately, little was done to monitor the compliance of agencies until 2000 when a survey was conducted of the legislative obligations of the CEO’s. Also, the Act did not define ‘education’, leaving a broad range of interpretation of what constituted compliance.

The ethical obligations were too vague to form the origin of a charge of misconduct. The published codes, however, are particular in their lists of rules developed from these provisions. Some Codes are over sixty A4 pages in length and comprehensively deal with possible breaches. They are also more than mere artefacts as, like any set of working rules or laws, they are constantly updated to encompass new breaches and close loopholes.

In the end, the legislation provided the Queensland public sector with clarity, more detailed basis for discipline and an education regime for ethics. The ethical obligations were an updated version of the principles of the 1988 Code, but had a more comprehensive coverage. Thus the ethical regime is stronger for the Act’s existence. However, looking at it from a Downsian perspective, the Public Sector Ethics Act did not prevent the government from acting corruptly. A mere statement of what is or is not ethical does nothing to prevent corrupt practice. Likewise, the existence of a detailed list of unethical conduct did not increase the likelihood of a corrupt officer being discovered.

6.3.3 Conclusion The Labor Party acted rationally in the Downsian sense. They presented the public with a comprehensive ethics system that did nothing to endanger their chances of re-election. The Codes were useful in exercising control over the public servants without making public any damaging information. Simply stating what is or is not ethical does nothing to

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prevent corrupt practice. Likewise, the existence of a detailed list of unethical conduct did not increase the likelihood of a corrupt officer being discovered. The Act did not contain any new ethical principles or conduct. Its innovation was the publication of Codes across government and the provision, at least in name, of education for staff.

6.4 Conclusion The formalisation of ethics in the Queensland public sector was a worthwhile enterprise which was poorly developed. EARC was given the power to investigate ethics in the public service. While it may have conducted high quality research, when reading this Report, it is very difficult to identify logical argument supporting the codes or consistent policy. The PEARC did not address the lack of consistency and appears to accept the justifications EARC provided.

The result of this exercise was the continuation of the existing ethical principles and most of the provisions of the 1988 Code of Conduct. A significant change was the allowance for agencies to amend and tailor their Codes to suit the needs of the enterprise being undertaken within that portfolio. Thus, rather than retain a generic code that tried to cover all eventualities for all agencies, each agency could tailor their Code to meet its own needs. The only legislated oversight of these Codes was the ministerial sign-off. Unofficially, the Parliament could have debated the contents of any Code after their publication. No such debate has ever taken place.

The Government implemented the proposals through the Public Sector Ethics Act 1994. Significantly, they ignored a key proposal of both the EARC and PEARC that there be an independent Office of Public Sector Ethics to oversee and provide advice on Codes. The Premier said the Act was necessary to address a changing environment and new ethical dilemmas. EARC used these same reasons. Neither the Premier nor EARC elaborated on what these specific problems were nor how the Act would address them. Most of the parliamentary debate on the Bill was not related to justification of its provisions. It is logical to conclude that the lack of constructive debate demonstrates a lack of genuine concern about their contents.

The Act has been in place for twelve years. While some Codes have been sent to the Office of Public Service Merit and Equity and/or the CMC during their development, there has been no universal study of their contents or their effectiveness. No one has studied the success or failure of the development of individual Codes. There has been no publication of any information in relation to the administration of the Public Sector Ethics Act. It is unclear whether agencies or ministers hold the Act in high regard or consider it important.

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Chapter 7 Other Changes

The Fitzgerald Inquiry created an atmosphere in which politicians were desperate to disassociate themselves from the “corruption” of the Bjelke-Petersen Government. It was easier for the ALP to achieve distance than the incumbent National Party, which changed leadership and attempted to re-badge itself as a ‘reforming’ Cabinet. Early in his period as leader, and long before the conclusion of the Inquiry the National Party Premier, Mike Ahern, guaranteed that he would implement Fitzgerald’s recommendations “lock, stock and barrel” and commenced the process of reform. In fact, all parties committed themselves “sight unseen” to whatever Fitzgerald recommended.611

Apart from pursuing the Fitzgerald Inquiry, Ahern established the Public Accounts Committee and made significant changes to the structure and operations of the public service, which were discussed in Chapter 5. But Beattie claimed that Fitzgerald’s insistence that major reforms should not occur until the Inquiry was completed hamstrung Ahern. Beattie demonstrated that this decision contributed to the change of government in 1989: “Politically, it fatally wounded Ahern because it took the initiative away from him and the government and helped make Ahern look indecisive politically”;612 and further: “Because of the timing of this poll [a few months after the Inquiry Report], it can be strongly argued that Ahern’s poor position was due to two factors: the revelations at the Inquiry and the fact that his government was not in control of the agenda until Fitzgerald’s report was delivered. By then it was too late.”613 Ahern was removed as leader of the National Party a few months before the election and the legislation to establish Electoral and Administrative Review Commission (EARC) and the Criminal Justice Commission (CJC) was passed under the hand of the new leader, Russel Cooper, in the weeks before Parliament was prorogued for the poll.614

Fitzgerald also drove the Goss government’s legislative agenda. EARC identified ‘good government’ initiatives and the government had already committed itself to their implementation. This thesis will not deal with each of EARC’s twenty-six reports. This chapter will only cover the two reports that related to ethics and accountability, namely

611 Coaldrake Davis & Shand 1992, op cit, p.3. 612 Beattie 1996, op cit, p.68. 613 ibid, p.76. At pp.80-81 he discusses how the good intentions of the National Party in setting up the Inquiry and giving Fitzgerald all the powers he requested actually meant that the government was committing political suicide. 614 The National Party government had given a commitment while the Inquiry was still under way to implement the recommendations “lock, stock and barrel.” Cooper felt that, as many Labor Party affiliated lawyers worked for the Inquiry, they used these commitment to include recommendations that had nothing to do with the Inquiry but progressed Labor policy, such as electoral redistribution. (ibid, p.80.)

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Freedom of Information and Whistleblower Protection. These two initiatives endangered the government because they introduced accountability systems that could uncover misconduct and because the process of each system was outside the control of the government. Freedom of Information systems put the onus on the government to release information requested by the public rather than make its own decisions on what should be released and when the public should be told. Similarly, whistleblowers do not act in concert with government intentions but release information which will always have a negative effect on the government.

The other Fitzgerald agenda initiative under review in this chapter will be the CJC. The CJC was another agency outside of the control of the government that had the role of uncovering misconduct by public officials and politicians.

The final section in the chapter will examine the Integrity Commissioner. This is the only non-Fitzgerald ethics regime initiative introduced since 1990. While freedom of information, whistleblower protection and the CJC are all rational initiatives from the perspective of the electorate, the Integrity Commissioner is a rational initiative for both the public and the government. This statement will be tested by examining the sincerity and diligence with which the Act has been treated during, and following, its passage.

If a government was genuine about the WPA being a significant part of a reform package, and they supported this package, they would take certain steps. First, Members promoting the passage of the Bill, would have ensured that they fully understood the Act’s terms and operation, and that it would actually encourage and protect whistleblowers. Second, if a politician believed in the ideals of a piece of legislation it seems obvious that they would not undermine the ideals with hypocritical actions. Finally, once an Act had been passed it would be logical to want to establish whether or not it was being complied with, by collecting data and determining success or failure. Doing so would allow the government to check on its correct implementation and amend its provisions to ensure its most effective application.

7.1 Criminal Justice Commission The CJC was established under the Criminal Justice Act 1989. Among other functions, the CJC was established to investigate official misconduct in all public agencies in the state including “the police service, statutory authorities, universities, local authorities, courts, prisons and by elected officials”.615 This section will discuss the CJC’s investigative role and its ethics education obligations. It will then deal with the CJC’s

615 CMC homepage, Responsibilities/Investigate Misconduct, http://www.cmc.qld.gov.au/RESPCONDUCT.html, viewed 27 July 2004.

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relationship with government through a discussion of the changes to the Commission’s powers and the Carruthers Inquiry. Finally the section will review the success of the CJC.

7.1.1 Investigation The CJC can investigate matters which are reported to it or initiate investigations through its own motion. A tight reading of the Act allowed the Commission to avoid what could have been a passive role, such as leaving the initiative of exposing misconduct to the agencies.

A controversial obligation under s.37 of the Act required CEO’s to report suspected misconduct to the CJC immediately. The CJC made public Crown Law advice that makes it clear that the agency has no power to verify the veracity of the allegation before reporting it to the Commission.616 CJC guidelines to agencies state that the agency should not start investigating a matter before it is reported. In regard to what constitutes a suspicion, the Crown Law advice left very little room for manoeuvre. The formation of the suspicion does not require anything in the nature of proof; however, it obviously requires at least a rational basis. A mere allegation of conduct that might be official misconduct may be enough to create suspicion, unless the public official has information, or there is something about the allegation, that shows beyond doubt that it is not correct. For example, an allegation that a departmental employee had been involved in some serious misconduct on a specific occasion, place and time when the CEO knows that the person was in another place at that time might not give rise to a suspicion if the evidence was sufficiently clear. On the other hand, the CEO might believe very strongly that the person complained about is of good character and would never do such a thing as was alleged. However, this would not be sufficient, in my opinion, to justify the Chief Executive taking the view that no suspicion existed and that no notification was required.617

Since its commencement the CJC has received over 2000 complaints per year of both official misconduct and police misconduct. In 2002-2003, the now Crime and Misconduct Commission (CMC) received 2920 complaints containing 6487 separate allegations. Two-thirds of the allegations related to actions of officers of the Queensland Police Service.618

The Commission’s investigation power is limited to ‘official misconduct’, which under s.14 covers dishonesty, breaches of trust and misuse of information. Section 15 narrows this further:

616 CMC 2004, op cit, p.23. 617 Lohe C 2003 ‘Managing disciplinary action: responsibilities of Chief Executives’, CEO Breakfast Briefing, 10 April 2003, extracted in CMC 2004 Facing the Facts: a CMC Guide for Dealing with Suspected Misconduct in Queensland Public Sector Agencies, Crime and Misconduct Commission, Brisbane, p.22. 618 CMC 2003, Annual Report 2002-2003, Crime and Misconduct Commission, Brisbane, p.32.

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15 Meaning of “official misconduct” “Official misconduct” is conduct that could, if proved, be— (a) a criminal offence; or (b) a disciplinary breach providing reasonable grounds for terminating the person’s services, if the person is or was the holder of an appointment.

In practice the limits of this section do not cause friction as the requirement for reporting, and the fact that many complaints are sourced directly from the public, means the Commission filters all issues. If a matter does not meet the requirements of official misconduct it can be referred to the agency in question to be dealt with in accordance with the normal investigation and disciplinary procedures. In 2002-2003 the Commission only investigated 4.3% of all matters they assessed.619

Findings of non-criminal misconduct are either handed back to the relevant agency for disciplinary action or dealt with in the Misconduct Tribunal. If the CJC uncovers evidence of criminal conduct it refers the matter to the Director of Public Prosecutions for consideration.

The Act does not clarify the scope of s.15(b). Section 87 of the Public Service Act 1996 sets out the circumstances under which a public servant may be disciplined, but does not outline the scale of penalties which apply to each. Specifically there has not been, and is not, any legislation or published policy which characterises the type of breach which could result in dismissal. Section 88 of the Public Service Act 1996 provides that the authority can only take action which is reasonable in the circumstances. From a statutory interpretation something would be reasonable if a normal disciplining officer in those circumstances would regard it as reasonable. There is no set of guidelines beyond this. Some guidance could have come from directives of the Public Service Commissioner, but that has yet to occur. However, what is reasonable may include anything from a reprimand to termination.

In summary, the CJC can investigate official misconduct but there is doubt over what offences fall within this category. In the end, the Commission only examines less than 5% of all the matter which come before it, with most of the remainder being referred back to agencies for internal investigation.

7.1.2 Ethical Education The CMC also has a role in ethics education. Under s.5(3) the Commission is to achieve its purpose by helping “units of public administration to deal effectively, and appropriately, with misconduct by increasing their capacity to do so while retaining power

619 CMC 2003, Annual Report, p.35.

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to itself investigate cases of misconduct, particularly more serious cases of misconduct.” Given that “Corruption does not so much work against the prevailing social system, as work with it, finding a protective niche in its routines”620, the Commission’s cultural education role is of high importance.

Section 24 of the current Act requires the Commission to analyse information from agencies, study the information, and provide advice and assistance to agencies and the public in misconduct prevention. It performs this “capacity building role” through measures such as consultation with agencies, a network of liaison officers, assessments of risk, conducting workshops and conferences, producing publications to give advice and set guidelines, and providing direct advice.621 The number of publications they have produced is prolific with new material appearing each year.

7.1.3 Changes to Powers During its life the CJC regularly came into conflict with the respective governments of the day over its investigations into the actions of politicians. The Goss Labor government caused friction almost immediately. Dr Ross Fitzgerald described their attitude: The government clearly resents the independence and power of the commission. The former Police Minister demonstrated this by his unbelievable attack on the CJC and Sir Max Bingham as well as on this Police Commissioner… selective media background briefings, public attacks and half-smart remarks to the media have all been used to try and denigrate the CJC in the minds of the community. While this has substantially failed, it has brought into question in the public’s mind, the Government’s commitment to the reform process.622

During its term the Labor government did not directly attack the CJC through legislation. However, the ALP had never been happy with the appointment of Sir Max Bingham, a former Tasmanian Liberal Minister, as Chair of the CJC. It took until 1991 before they confirmed his appointment. When he left in 1992, the government appointed Rob O’Regan QC, whom the Opposition saw as a Labor lawyer.623 The appointment of people who may be partisan is rational, in the Downsian sense, as it reduces the likelihood that they will make findings against the government. However, there is no evidence beyond conjecture that any Commissioners of the CJC or CMC were partisan.

The legislative changes made during the Goss government were designed to increase effectiveness. At first the responsibilities of the CJC were too onerous. The statutory requirement to investigate every matter had severely slowed the work of the Commission.

620 Fitzgerald R 1990 ‘Judicial Culture and the Investigation of Corruption: A Comparison of the Gibbs National Hotel Inquiry 1963-64 and the Fitzgerald Inquiry 1987-89,’ in Prasser, S. & Bloch, S. (eds.) Corruption and Reform: The Fitzgerald Vision, University of Queensland Press, Brisbane. 621 CMC 2003, Annual Report, p.39. 622 Fitzgerald R quoted by Borbidge QPD, 30 April 1992, p.4764. 623 Grice, QPD, 28 October 1994, pp.10155-10157.

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The Goss government amended the Act in 1992 to give the Commission the option to choose not to investigate frivolous and vexatious claims, and also to refer minor matters back to government agencies for internal investigation.624

Later the same year they passed a second Amendment Act to allow an appeal from a Misconduct Tribunal to the Supreme Court.625 The Act gave statutory review powers to the Court: The effect of the addition of these new grounds of appeal is that the court may overturn a decision of the Misconduct Tribunal if it considers that the decision is wrong because of an error of law, or error of fact, or because of a denial of natural justice, or that the decision is not supportable on the evidence.626

In 1993, the government extended the offences provision to make it illegal to make a wilful false complaint to the CJC.627 Previously it was only an offence to make frivolous or vexatious complaints. The Opposition complained that the fine for the new offence would not be sufficient to deter a financially sound political organisation making a false complaint about a politician. (The offence carried 85 penalty units or 1 year imprisonment628) Likewise, it would not stop anonymous false complaints. Beanland cited the case of Stephen Mack who was financially ruined after a false complaint to the CJC led to charges that were eventually thrown out of court. He placed the blame on intentional leaks by the CJC: “There is a widely held belief among people at both ends of George Street that, since its implementation, the CJC has regularly engaged in selective leaking of information to sections of the media.” 629

The Liberal Party wanted to extend the CJC’s jurisdiction for investigation to include allegations of corruption in the industrial unions.630

In summary, both sides of politics have alleged that the Commission or individual commissioners were biased, but none of these have been substantiated. Nonetheless governments have taken action as if their allegations were true. The next part of this section will discuss the most significant conflict between a sitting government and the Commission.

7.1.4 The Carruthers Inquiry In 1996, a by-election was held in the seat of Mundingburra which could give either Labor or the Coalition the chance to form a government. Both Labor and the National Party

624 Criminal Justice Amendment Act 1992 625 Criminal Justice Amendment Act [No.2] 1992 626 Goss, QPD, 19 May 1992, p.5252. 627 Criminal Justice Amendment Act 1993. 628 Criminal Justice Act 1989, s.6.11A(1). 629 Beanland, QPD, 8 December 1993, p.6570. 630 Santoro, QPD, 30 April 1992, p.4770.

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entered into agreements with lobby groups. Labor gave a written undertaking to the Sporting Shooters Association of Australia (SSAA) that it would not bring in legislation to register long arms, in return for the Association desisting from campaigning against the government. The Nationals, on the other hand, signed a secret memorandum of understanding with the Queensland Police Union (QPU) that it would provide beneficial policy decisions, including reducing the power of the CJC to investigate police misconduct, in return for the Union campaigning against the government. The by-election gave the National-Liberal Coalition government with the support in the House of an independent member.

The QPU released details of the MOU after the election. After a report in The Courier Mail the Minister for Police and signatory on the MOU, Russel Cooper, referred the issue to the CJC for a determination of whether the matter amounted to official misconduct. The CJC realised that there could be a perception of bias on its part given the intent of the MOU included a reduction of its own power. It received independent advice from Cedric Hampson QC on whether a prima facie case of misconduct existed. He advised that there were possible breaches of the Electoral Act 1992 and that the CJC should use its power to establish an independent Inquiry headed by an outsider.631 The Commission agreed and empowered Ken Carruthers QC to Chair the Inquiry. However, the Misconduct Division of the CJC conducted the investigation and Hampson QC was appointed Counsel Assisting the Inquiry. What was expected to be a short inquiry, continued for months and cost millions of dollars.632

In August 1996, Cooper had obtained advice from Peter Connolly QC, former Liberal Minister and Judge, that he had no case to answer.633 The following month, a National MLA, Grice, made allegations that Mark Le Grand, a director of the Misconduct Division, had previously leaked confidential CJC material, set up an inquiry into the matter and perjured himself before that inquiry. Based on this allegation, the Government set up an inquiry into the operation of the CJC.634 The Government appointed Peter Connolly, the legal advisor to Cooper, and Dr Kevin Ryan as joint Chairs of the Inquiry. The Government claimed that the inquiry had nothing to do with the Carruthers Inquiry.635 This claim seems unlikely given that the new inquiry had the power to include that inquiry

631 CJC 1996, Report on an Investigation into a Memorandum of Understanding Between the Coalition and the QPUE and an Investigation into an Alleged Deal Between the ALP and the SSAA, CJC, Brisbane. 632 Orr G 2004 Dealing in Votes: Electoral Bribery and Its Regulation in Australia, unpublished PhD thesis, Griffith University, Brisbane, pp.162-169. 633 Carruthers v Connolly, pp.11-12. 634 Carruthers v Connolly, p.13. The Government had to pass the Criminal Justice Legislation Amendment Act 1996 (rushed through the House in three days) to empower a Commission of Inquiry to investigate the CJC. 635 Fitzgerald, QPD, 13 November 1996, p.4085.

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within its investigations. Foley pointed out that on the basis of conflict of interest the Premier and Police Ministers, who were the subject of the Connolly Inquiry, should have absented themselves from Cabinet, when the decision to establish the Inquiry was made.636 This is true even if it was not Cabinet’s intention to include the Carruthers Inquiry within the terms of reference of the new Inquiry, as a clear perception of bias could be, and was, established.

It was not long before both Inquiries began to clash. In October, the Connolly-Ryan Inquiry advised Carruthers that he ought not destroy any documentation lest it become relevant to their inquiry. Carruthers refused to give such an assurance. Hanger QC, counsel assisting the Connolly-Ryan Inquiry, wrote to Carruthers, and spoke to his staff, threatening to use the Inquiry’s powers to compel compliance. Four days later, Carruthers resigned as Chair of his Inquiry explaining that the establishment of the Connolly-Ryan Inquiry and the actions of its staff placed him in a position where he could not be perceived to be able to produce an impartial outcome. 637 The reasons for Carruthers’ resignation are unclear. The documents referred to were already required to be preserved under the Libraries and Archives Act. If an unacceptable perception of bias is established by the subject of the investigation making negative statements about the Commissioners, almost every commissioner appointed to an inquiry would have to resign. Nevertheless, in a later case on the matter, Thomas J agreed that the actions of the Inquiry had been unreasonable: Anyone who has prepared a report requiring the expression of personal opinion, let alone a judgement, would know how oppressive and unfair these demands [by Hanger QC] were. In my opinion they were outrageous.638

Both during and after the Supreme Court case, Connolly made numerous negative public comments about both the CJC inquiry and its Chair, including his opinion that Carruthers’ actions had been “childish”.

In response to his resignation, the Opposition brought the Carruthers Inquiry Extension Bill 1996 before the House to allow Carruthers to return and complete the inquiry. By this time, the CJC had appointed two Senior Counsel, Gotterson and Brendan Butler (a future CMC Chair), not to complete the Inquiry, but to make recommendations in regard to criminal or misconduct charges arising from the material Carruthers collected. The Bill was passed with amendments, but the Government said it was a waste of time: “The whole Bill is quite contrary to the stated purposes of the Leader of the Opposition. It is

636 QPD, 13 November 1996, p.4087. 637 The government played on this as much as they could, eg. Beanland, QPD, 13 November 1996, p.4076. They pointed out that Carruthers responses indicated that he would not have had the same qualms about dealing with the ALP in their attempt to bring him back to Queensland. Thus it was only interference when the Coalition dealt with him. (Fitzgerald, QPD, 13 November 1996, p.4083) 638 Carruthers v Connolly, p.15.

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specifically designed to ensure the return of Mr Carruthers, not to establish a new inquiry.”639 But Opposition said it wanted the completion of the inquiry regardless of who chaired it.640 The fact that Gotterson and Butler could make recommendations indicates that no further inquiry was necessary.641 Also, Carruthers had already indicated that he would not return under any circumstances.642

Carruthers brought an action against Connolly and Ryan. The Supreme Court found that Connolly had been biased. The Inquiry was discontinued.643 A key point in the finding of bias against Connolly was that he had already stated his opinion on the outcome of the Inquiry in his advice to Cooper before being appointed as Chair. Thomas J also found that Ryan could not continue the Inquiry on his own as his association with his co-Chair would have impeded Ryan’s own ability to be impartial.

In December 1996, Gotterson and Butler presented their report. They concluded that while some police officers could face misconduct charge, neither the Labor nor National politicians had breached the Electoral Act.

The affair was poorly handled by the government and the CJC. The CJC had not ensured its own impartiality. Even though they appointed Carruthers as an independent chair, the Commission’s own Misconduct Division carried out the investigation, and Hampson QC, who had given a prior opinion on the matter, in the same manner as Connolly, was appointed as counsel assisting. While this position was not as important to the outcome of the Inquiry as the Chair, and there is no question of bias or other impropriety on Hampson’s part, it would surely have been sensible to find another of the many Queensland or interstate QCs to take this position and remove any appearance of bias. Also, logically, if association with Connolly could corrupt Ryan, it is possible to argue that Hampson could also corrupt Carruthers.

The ALP was only a small player in the affair, and did not make a positive contribution. The possibility of their own members being found guilty (both of the former ministerial officers in question were now MLA’s) for dealings with the SSAA was not as threatening

639 Beanland, QPD, 13 November 1996, p.4078. 640 Wells, QPD, 13 November 1996, p.4081. 641 The CJC had also asked Carruthers to report on “the sufficiency of the legislative provisions in Queensland concerning election conduct”, but Gotterson and Butler were not asked to make recommendations on this matter. (CJC 1996, op cit, p.3.) it is questionable whether a further inquiry was needed or whether policy issues could be developed through normal government means and public debate. 642 The Courier Mail, 5 September 1996, referred to by Beanland, QPD, 13 November 1996, p.4077. 643 Carruthers v Connolly; Barclay P 1999, ‘Queensland Ten Years After Fitzgerald’ Background Briefing, 16 May 1999, ABC Radio National, Sydney.

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as the possibility of the Premier and Police Minister being charged with criminal offences. Their introduction of the Carruthers Inquiry Extension Bill 1996 served no useful purpose.

But the greatest cynicism came from the Government. Despite deserving credit for asking the CJC to investigate the matter, the establishment of the Connolly-Ryan Inquiry was politically motivated to destabilise the Carruthers Inquiry. The government’s two key actions were the establishment of the Connolly-Ryan Inquiry and the appointment of Peter Connolly. Given that the PCJC already had the power and obligation to investigate the CJC there was no need for a separate inquiry. Second, if an inquiry was genuinely thought to be necessary then the appointment of a person who was known to be ‘on the government’s side’ both in his past as a minister and through his published legal advice, was insupportable. The exact cost of both inquires is unknown but it exceeded $10 million in 1996 dollars.

The matter demonstrates that no one approached issues of ethics and accountability with integrity. All parties sought their own benefit and were willing to sacrifice the public interest in the pursuit of their goal. In doing so they attempted, even if weakly, to justify their actions as being in the public interest.

The next year, the Borbidge Government passed the Criminal Justice Amendment Act 1997 which split the criminal investigative and misconduct roles of the CJC in accordance, it said, with recommendations of the PCJC. The Opposition saw this as a further act of spite by a government still upset from the Carruthers Inquiry.644

In conclusion, this episode is an example of the effectiveness of an independent commission with powers of investigation. The Carruthers Inquiry and its aftermath demonstrate the lengths to which a government will go to protect itself from adverse publicity. The sitting government established a counter-inquiry, the Connolly-Ryan Inquiry, to undermine the work of the CJC Inquiry. The Opposition, now under a new leadership and able to disassociate itself from the allegations made against Goss, introduced the ineffective Carruthers Inquiry Extension Bill 1996 to play on public concern. Had the CJC been an ineffectual organisation it would not have attracted the responses it generated within the government and opposition.

7.1.5 Review of Success As to the success or failure of the organisation, because it is not possible to know the full extent of corrupt activity in any organisation, it is impossible to determine exactly how effective any process is in reducing is occurrence. As with the success of the

644 Foley, QPD, 28 October 1997, p.3880.

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Ombudsman discussed above, Beattie, the former head of the first Parliamentary Criminal Justice Committee, believed the ability of the public to report public officials had restored “faith in the criminal justice system”. Further, he said information the CJC provided to the Committee indicated “public officials, particularly in local government, improved their behaviour in a self-regulatory way out of fear of a complaint to the CJC.”645 Beattie did not indicate whether the public support was sustained. In relation to the police Beattie noted that the fact that hundreds of complaints about the Service were being sent to the CJC from the public indicated that the community had faith in the Commission’s independence and ability to investigate matters. Previously under the internal Police Complaints Tribunal and internal investigation unit, which lacked public confidence, very few complaints were received.646

After looking back over a decade of operation, Brereton suggested some reasons for suspecting that the CJC was effective. He said there was no evidence since Fitzgerald of high level corruption. Also, within the Police Service at least, CJC monitoring showed an growth of a more ethical culture. Government agencies had implemented corruption prevention measures and codes of conduct and public surveys show a reduction in the number of people who have direct knowledge of “serious improper behaviour by public sector employees.”647 It could also be said the existence of any independent watchdog body of the nature of the CJC was a significant improvement on the pre-Fitzgerald arrangements. Ransley suggests that the existence of the CJC changed the culture by showing that corruption would be punished.648 Preston and Sampford claim that: “The CJC is the most public and probably the most important testing ground for the endurance of the ‘Fitzgerald spirit’.”649

The CJC and CMC have been the link that maintains the formal system of investigation and discipline. Despite not being charged with the administration of core ethics legislation, it has done more than any department to educate, investigate and prevent unethical conduct. The Ombudsman and other agencies do not deal with ethics. No one else scrutinizes the ethics system.

The Parliamentary Criminal Justice Committee and now the Parliamentary Crime and Misconduct Committee produce triennial reviews of the operation of the Commission. But there has not been an independent study of the Commission’s effectiveness. There has been no data provided publicly on the number or nature of offences dealt with in

645 Beattie 1996, op cit, p.85. 646 Beattie 1996, op cit, p.135. 647 Brereton 2000, op cit, pp.7-8. 648 Ransley J 2001 Inquisitorial Royal Commissions and the Investigation of Political Wrongdoing. Brisbane, PhD Thesis, Key Centre for Ethics Law Justice & Governance, Griffith University. 649 Preston & Sampford 2002, op cit, p.128.

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government agencies. The definition of official misconduct limits the CMC to a limited spectrum of possible public sector offences. Consequently, if politicisation is not ‘misconduct’ then the CMC can do nothing to prevent it; and if the government does nothing to enforce the Code of Conduct the CMC can do little about it.

7.1.6 Conclusion The CMC can investigate official misconduct and has a responsibility to assist agencies and educate staff to help prevent unethical behaviour. Both of these roles have been successful in so far as the number of complaints and the amount of information on ethics have both exponentially increased under the CJC and CMC. The limitations on success arise from a lack of clarity in relation to which offences fall within the CMC’s portfolio.

It was rational for Fitzgerald to recommend the establishment of an independent commission to inquire into unethical and criminal behaviour within the government. This body significantly improves the likelihood of uncovering misconduct and self-interested actions on the part of the public officials. Consequently, the people of Queensland are more likely to have a greater return for their investment in social benefits. Conversely, successive governments have reacted rationally to the threat the independent commission posed. Initially, governments attacked perceived bias among the membership of the Commission. None of these allegations were substantiated. The Coalition’s response to the threat posed by the Carruthers Inquiry into the Mundingburra by-election was the most severe reaction by a Queensland government. Despite all parties acting unprofessionally, the government attempted to counter the CJC investigation with an investigation into the CJC, to protect itself. If such an investigation were justified its timing was inappropriate and can reasonably be regarded as an attempt to prevent the Carruthers Inquiry producing any negative outcomes.

7.2 Freedom of Information Act 1992 The passage of the Freedom of Information Act 1992 (FOI Act) was seen at the time as a fundamental piece of legislation in reforming the administration of government and improving transparency in Queensland. While many writers do not include FOI in discussions of ethics, the ability to examine the documentation of the government not only concerning its decisions, but also concerning the records in relation to individuals, is an essential part of corruption prevention. It adds to the existing accountability mechanisms of the watchdog agencies by allowing the press and other individuals or groups, including the parties in opposition, to be proactive in their scrutiny of the government. This section will discuss the purpose of the FOI Act.

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7.2.1 Purpose As the then Attorney-General, Dean Wells, stated in his Second Reading speech: …this Bill will effect a major philosophical and cultural shift in the institutions of Government in this State. The assumption that information held by Government is secret unless there are reasons to the contrary is to be replaced by the assumption that information held by Government is available unless there are reasons to the contrary. The perception that Government is something remote from the citizen and entitled to keep its processes secret will be replaced by the perception that Government is merely the agent of its citizens, keeping no secrets other than those necessary to perform its functions as an agent. Information, which in a modern society is power, is being democratised.650

These sentiments are included in the Act itself which states: 5 Reasons for enactment of Act (1) Parliament recognises that, in a free and democratic society— (a) the public interest is served by promoting open discussion of public affairs and enhancing government’s accountability; and (b) the community should be kept informed of government’s operations, including, in particular, the rules and practices followed by government in its dealings with members of the community; and (c) members of the community should have access to information held by government in relation to their personal affairs and should be given the ways to ensure that information of that kind is accurate, complete, up-to-date and not misleading.

The section also outlined the importance of competing considerations of the public interest and private or business affairs.

In the context of this thesis the FOI Act adds to the opportunity for public scrutiny of government actions. If FOI is ineffective, political masters can guarantee protection from discovery and therefore aid collusion of staff. Consequently, a compliant staff member wanting to ‘do the right thing’ by the government of the day could exclude damaging information from release, allowing the government the means to not only conceal their own misdeeds but the participation of public officials in a cover-up.

The Queensland legislation adds a further level of accountability in the form of the Information Commissioner. The Office of Information Commissioner was established under the FOI Act to provide a point of appeal from agency FOI decisions. This is also an independent statutory office. The decision of the Information Commissioner acts as a replacement decision for the original decisions of the department or other agency. Also the Commissioner will use negotiation or mediation to attempt to resolve the issue between the applicant and the agency before taking evidence to consider the matter. However, a significant departure from the QAO and Information Commissioner, while the

650 Wells, QPD, 5 December 1991, p.3850.

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Commissioner substitutes its decision, the Commissioner has no power to review the operation of the FOI Act in general or within a specific agency.651

7.2.2 Amendment The Goss Government soon introduced amendments to allow a loophole. Following a decision of the Information Commissioner which narrowed the possibility of exemption of documents presented to Cabinet or Executive Council,652 the Government amended the Act to “clarify the original intent of the Legislation.”653 In 1993 it was argued this amendment was necessary to protect the convention of collective ministerial responsibility, specifically that Cabinet discussions remain candid and unrestricted through the confidentiality of the Cabinet process. The High Court had supported the necessity of this convention as being in the public interest.654 The Act clarified that only “merely statistical, scientific and technical” information was to be released and it would not allow access to material such as their briefing notes which could “reveal the particular position adopted by a Minister or Ministers”. If this was available then the public would be able to determine who had supported or opposed particular submissions, thereby breaking down the convention.

The Government’s argument has substance because the confidentiality of Cabinet is important. But there is an opportunity for this process to be abused, namely, excessive characterisation of documents under Cabinet solely to protect the government from what would otherwise be valid scrutiny. A truly cynical approach would be to allow the exclusion to be so broad as to give the government the ability to use that clause to prevent the release of any information. A balance needs to be struck between the competing needs of scrutiny and confidentiality, but this method has ignored the needs of scrutiny in favour of absolute secrecy.

In 1995, a further amendment was passed which provided a blanket ban on any material presented to cabinet. This amendment prevented the Information Commissioner from conducting a review of an Opposition request to obtain copies of the Attorney-General’s set of briefing notes prepared for his appearance before the Estimates Committee. The Government broadly extended the definition and made the changes retrospective. The amendments were justified under the guise of removing “any remaining ambiguity” in relation to this provision by preventing any inquiry into what takes place in Cabinet. As

651 The incumbent in the position of Information Commissioner, Cathi Taylor, was the subject of criticism upon her appointment in 2005. After her appointment the Opposition and The Courier Mail raised several concerns regarding the method of her appointment and her independence. These claims were not substantiated and will not be discussed in this thesis. 652 Fencray v. Department of the Premier, Economic and Trade Development 653 Wells, QPD, 9 November 1993 p. 5475. 654 Commonwealth v. Northern Land Council and Anor.

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the Attorney-General stated in his Second Reading speech: “The effect of the amendments is that all matter, including statistical, scientific or technical matter that is submitted to Cabinet, is exempt from disclosure under the Act.”655 Any material need only be physically brought before Cabinet and need not be actually considered or examined to be exempt. It was also extended to briefings provided to CEO’s on cabinet material. The intention was to prevent disclosure not only of Cabinet decisions and votes but whether Cabinet had considered specific matters.656 While the maintenance of Cabinet confidentiality is important, and the inclusion of documents such as CEO briefings ought rightly to be included within the exemption, this amendment went much further. It allows the practice of walking boxes of documents through the Cabinet room during a meeting to qualify those documents as exempt material. The Information Commissioner outlined an example of this practice in his 2000/2001 Annual Report. He noted that following an Opposition FOI request for documents about the pedestrian footbridge from QUT to Southbank a “senior officer” from the Department of Premier and Cabinet instructed staff to gather all documents about the project from each relevant agency and present them to Cabinet.657 It is a catch all loophole which defeats the accountability mechanism of the FOI Act. It promotes a culture of secrecy and prevents transparency. The Information Commissioner criticised the amendments for being excessive and opposed to the democratic intentions of the legislation.658

None of the Opposition’s complaints in relation to FOI were acted upon when they took government in 1996.

In conclusion, the presumption about access has changed but the government can still control the dissemination of documents. The government did not try to balance confidentiality and scrutiny. The public servants can be assured that documentary evidence of inappropriate action can be concealed. If the government was genuine then it should provide a mechanism to assess process separate from policy.

7.2.3 Conclusion Upon its introduction the FOI Act was regarded as an effective example of freedom of information legislation in Australia. The Act shifted the onus to the government to prove information could not be released, although it provided a range of exceptions. The legislation also instituted an effective internal and external review process. The Labor

655 Wells, QPD, 21 March 1995, p.11191. 656 Wells, QPD, 21 March 1995, p.11192. 657 Office of the Queensland Information Commissioner 2001 Ninth Annual Report, Government Printer, Brisbane, p.14. 658 Gregorczuk H 1999 Freedom of Information: Government Owned Corporations, Contractors and Cabinet Exemptions: Research Bulleting No 5/99, Queensland Parliamentary Library, Brisbane, p.32.

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government was bound to bring in this legislation – an apparently irrational action – because it was a key proposal made in the Fitzgerald Inquiry. On the other hand, the government was the decision maker in relation to the release of its own information and, thus, it exercised significant control over the dissemination of documents. The staff examining the documents and making the decisions did not belong to an external, independent body.

Once the legislation was enacted, the government began to reduce the effectiveness of the Act. Through a series of amendments the government progressively increased its power to exempt material to the point that today, should it choose to do so, any material could be excluded under the cabinet or executive council exceptions. While the onus remains on the government to establish an exception, it has empowered itself to do so at any time. Consequently, the FOI Act, like the Public Service Act 1996, gives the power to Cabinet to override a junior officer’s decision.

7.3 Whistleblower Protection In his report into corruption in Queensland, Fitzgerald listed whistleblower protection as a necessary part of a strong governance regime. "What is required is an accessible, independent body to which disclosures can be made, confidentially (at least in the first instance) and in any event free from fear of reprisals."659 It was a reform EARC studied and led to a report of which resulted in the Whistleblowers Protection Act 1994 (WPA).

All sides of Parliament supported the need for whistleblower protection.660 The Premier, Wayne Goss, in his Second Reading Speech on the Public Sector Ethics Bill661, said the Act and the WPA would form a package with the former outlining required behaviour and the WPA encouraging staff to report wrongdoing. 662 The WPA was subsequently passed and has remained virtually unamended for over a decade.

These points will be examined in turn, by reference to Queensland Parliamentary Debates and annual reports and correspondence from the Office of Public Service Merit and Equity (OPSME), which administers the WPA.

659 Fitzgerald G E 1989, Report of a Commission of Inquiry Pursuant to Orders in Council, Queensland Parliament, p.134. 660 At this time there was no National/Liberal coalition. Denver Beanland (Lib) drew the connection between the system and good public administration: “Protecting and encouraging whistleblowing is therefore not just a moral duty; it is part of ensuring good government, that being efficiency and efficacy, honesty, integrity, commitment to public service, openness and accountability…” Beanland, QPD, 17 November 1994, p.10497 661 This Bill was introduced on the same day as the Whistleblower Protection Bill. 662 Goss Queensland Parliamentary Debates, 17 November 1994, pp.9688-9689.

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7.3.1 Background The WPA provides mechanisms for the protection of public servants, and in some cases the public, who disclose official misconduct, maladministration, mismanagement leading to a waste of public funds, and dangers to public health and safety. However, the protections only accrue to a person who makes such disclosures within the system of their own agency or to another agency which could investigate them. While it was not illegal to ‘go public’ with allegations, if you do so, theoretically, you forfeit the benefits of the Act.663

The protections are substantial. Two protections apply to prevent the actions of others: • A whistleblower cannot be sued defamation or prosecuted for breaching confidentiality (s.39); • It is unlawful for a person to make a reprisal against a whistleblower (s.41).

The other four protections for the whistleblower are: • A whistleblower can apply to be transferred to another agency, if there is a continued risk of reprisal (s.46); • A whistleblower can sue for damages suffered from a reprisal (s.43); • A whistleblower can apply to the Industrial Commission for reinstatement should a reprisal include being dismissed (s.47). This option also exists under unfair dismissal laws; and • A whistleblower can seek an injunction to restrain a reprisal (s.48).

7.3.2 Sincerity of the Government The Goss Labor Government presented and passed the Bill in 1994. Several speakers from both sides of the House discussed the Bill.664 In the normal political scramble for the moral high ground, each side provided cases of whistleblowers who had suffered reprisals while the other held power.665 Within the debate there is a disconcerting lack of knowledge of the content of the Bill. The Government also reduced the effectiveness of previous proposals for a system of whistleblower protection that encouraged disclosure to one which retains government control over the release of information.

7.3.2.1 Lack of Knowledge Under the WPA a whistleblower’s motivation for making a disclosure is irrelevant. A whistleblower receives the protections regardless of their reasons for making the claim as

663 Though the Act does allow you to retain many of the protections if you disclose both internally as well as publicly. 664 Please note that Queensland only has a Lower House, the Legislative Assembly, as the Upper House, the Legislative Council, was abolished in 1922. Consequently, the debates discussed are limited to the Legislative Assembly. 665 Grice, QPD, 17 November 1994, p.10488; Cooper, p.10506; Campbell, p.10507;

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long as they had a bona fide belief in the truth of their allegations at the time of disclosure.666 The Act does not refer to motivation and it could not reasonably be inferred from the Act’s provisions, yet many government Members keep referring to matters of motivation, as if “malicious” persons would not be protected.

Both the Premier and Clem Campbell (ALP) stated that the Bill was not intended to protect a group of “mischievous”, “self-proclaimed” whistleblowers whom they referred to as “trumpet blowers”. Such persons were, they believed, ‘un-Australian dobbers’ and did not deserve protection. 667 Tom Barton (ALP) added a further category, the “malicious”, being those who seek to cause harm to another’s reputation, and use the WPA as a tool to pursue their personal agendas.668 Barton also said the Bill did not protect “those who deal in trivia which is of no interest to anybody other than themselves and [the Bill] does not seek to protect those people who are self-appointed whistleblowers on behalf of others.”669 He indicated that this group included those who refuse to accept that their perception of corruption has not been vindicated.670 Vaughan (ALP) agreed saying: “Some so-called whistleblowers remind me of Batman and Robin, Zorro or even Don Quixote. They seem to have the same drive to fight evil and wrongdoing wherever it exists, whether real or imaginary.”671 The future Premier, Peter Beattie similarly complained of “frivolous, malicious and vexatious complaints”.672 The Premier said the Bill aimed to differentiate specifically between these categories and genuine cases: This legislation seeks to strike a balance to protect the genuine whistleblower and encourage evidence and complaints of wrongdoing, criminal and official misconduct to be brought forward, but not at the expense of giving an absolute blank cheque to malicious muck-rakers to defame with impunity the reputation of innocent citizens.673

However, malice or mischievousness would only be relevant if a person intentionally provided false or misleading information which is an offence under the Act. If a person pursues a disclosure after seeing no result or vindication, there is no provision excluding them from the terms of the Act. The only exception is if they had presented evidence that a reasonable person would regard as reversing their bona fide belief in the truth of their claim.

666 Sullivan, QPD, 17 November 1994, p.10494. 667 Campbell, QPD, 17 November 1994, p.10507; Goss, p.10513. 668 Barton, QPD, 17 November 1994, p.10485; see also Vaughan (ALP) at p.10489. 669 Barton, QPD, 17 November 1994, pp.10482-10483. 670 They were, he said, like community organisations who complained that governments did not consult enough: “Unfortunately, some people think that consultation means that the Government has to continue talking to them until the Government agrees with exactly what they are putting forward. It does not mean that. Nor does it mean that the Government tells people what it is going to do and that is the end of it. Consultation falls fairly well in the middle of that.” (Barton, QPD, 17 November 1994, p.10483 which is tied into whistleblowers specifically at p.10485.) 671 Vaughan, QPD, 17 November 1994, p.10489. 672 Beattie, QPD, 17 November 1994, p.10500. 673 Goss, QPD, 17 November 1994, p.10513.

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It appears that the Government Members, including the Premier, misunderstood a fundamental component of the operation of the WPA. Given the advantages of pointing out flaws in the Government’s argument, we must assume the Opposition failure to correct the Government Members is a sign that they were equally unaware of the mistake. Consequently, it is also possible to conclude that the Bill was not a high priority for either side.

7.3.2.2 Politicisation The Leader of the Opposition, Rob Borbidge, claimed the Bill would increase politicisation: “This Bill is more about protecting the Goss Labor Government from disclosures by whistleblowers than it is about protecting whistleblowers, the public interest, or ensuring good public administration.”674 The Opposition alleged that the Bill would do so by ensuring political correctness and punishing disloyalty: It soon became obvious that whistleblowing, which reached an art form during the Fitzgerald inquiry, would no longer be politically correct... Goss Labor has embarked on a long, drawn-out and permanent purge of those who would dare to dissent.675

He and other Opposition Members claimed the Bill was part of a campaign to ensure that public servants were made aware that they would be punished for disloyalty.676 Grice said the government had already implemented a policy of reviewing the logs of all phone calls made through the government network to ensure no one called the Opposition. “[The] rule is that a public servant belongs body and soul to the Australian Labor Party. A public servant should forget any ideas of individual identity and any right of contact with anyone who is not politically correct.” 677 The primary means of control under the WPA was the obligation on public servants to making “in-house” disclosures. 678

The Opposition claimed this in-house system would not only contain information but would also discourage whistleblowing through frustration: “There is room for them to be given the run around, fobbed off and counselled out of the disclosure.”679 The Government had downgraded the Fitzgerald vision of “encouraging” whistleblowers, to simply a desire to “promote the public interest by protecting persons who disclose” information. Borbidge found further evidence of discouragement in the exclusion of

674 Borbidge, QPD, 17 November 1994, p.10477 675 Grice, QPD, 17 November 1994, p.10486. 676 They claimed that an officer from the Office of State Revenue had already been disciplined for using his work phone to call the Leader of the Opposition’s office. Fitzgerald later asked why the officer’s phone had been monitored in the first place. (p.10510) 677 Grice, QPD, 17 November 1994, pp.10486-10487. 678 Borbidge, QPD, 17 November 1994, p.10477. He said the Bill was: "do not rock the Goss Labor Government boat" or "let's keep disclosures in-house" whistleblower legislation.” 679 Borbidge, QPD, 17 November 1994, p.10476

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systems to provide support and counselling for whistleblowers. The Liberal Party also pointed out the failure to provide counselling for whistleblowers, despite EARC and the Parliamentary Committee recommendations to this effect,680 to help them deal with the stresses involved in being a whistleblower.681

Perhaps this omission resulted from a question of funding. But if this were the case then it applied to all the Queensland ethics based legislation. The Public Sector Ethics Act 1994 and the Public Service Act 1996 both contain the virtues of good public administration that, if instilled, should reduce maladministration. But, like the WPA, their success relies on the genuine implementation and maintenance of the obligations and principles. No rewards or support are provided for those who comply with either Act.

The Opposition and Liberal Party raised other flaws, but they do not stand up to scrutiny. Borbidge said the “most disappointing aspect” of the Bill was that it did nothing to relieve the “fear” of reprisal on the part of whistleblowers.682 This is unfounded as the Act provides a good package of protections and offences that, if enforced, would stop or punish those who commit acts of reprisal.

The Liberal Party pointed out that the Bill failed to require an agency to investigate a matter once it has been disclosed.683 However, the WPA did not need to make this provision as the Criminal Justice Act 1989 required CEO’s to pass on suspicions of misconduct to the Criminal Justice Commission (CJC). However, the Liberals claimed that the Opposition and the public service generally had little faith in the CJC because they saw it as a bastion of Labor lawyers. They preferred Fitzgerald’s original idea of an independent body to deal with disclosures.684 Of course, if the CJC could be politicised through patronage this new body could be as well.

7.3.2.3 Blowing the Whistle to the Media According to the Government, open disclosure to the media, was not supported to prevent false disclosures defaming innocent parties.685 Vaughan pointed out that nothing in the Bill prevented a person from making a disclosure to the media; it simply would exclude such a person from the operation of the protections under the Bill.686 There is no

680 The Parliamentary Criminal Justice Committee was charged with the oversight of the operations of EARC and made reports on the reports published by the Commission. 681 Beanland, QPD, 17 November 1994, p.10497: he went on to say at p.10498 that public servants lived in fear of the CJC. 682 Borbidge, QPD, 17 November 1994, pp.10476-10482 683 Santoro, QPD, 17 November 1994, p.10493. 684 Beanland, QPD, 17 November 1994, p.10497: he went on to say at p.10498 that public servants lived in fear of the CJC. 685 Barton, QPD, 17 November 1994, p.10483 686 Vaughan, QPD, 17 November 1994, p.10489; and Goss p.10514. See also Sullivan (ALP) at p.10494 who questions the need to provide protection for an honest person who goes to the media. This may be true for defamation but would not help them when faced with reprisal.

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provision in the Act which excludes a person who makes a disclosure to the media. The protections, other than defamation, are tied to reporting internally. A person who first reports internally, and later makes an external disclosure, would still receive the other protections. An internal disclosure can still defame, but the extent of the publication of the defamatory material can be contained.

The Parliamentary Committee, like EARC, was willing to allow disclosure outside the public service in exceptional circumstances. They recommended that anyone could make a disclosure outside the government, including to the media, when there was an immediate danger to the health or safety of the public. Borbidge said the Opposition supported this provision,687 and added that a public servant who had reported to all available channels and seen no result should be able to approach the media and/or the Opposition as a last resort. He did not support full access to the media but noted that the Fitzgerald Inquiry came about due to frustrated public officials going outside channels to reveal what they knew.688

Barton agreed that the exposure of corruption under the previous government was due to “genuine whistleblowers”, and acknowledged the “positive and crucial role” of the media. But he distinguished the contemporary situation on two grounds. First, the Goss government was not corrupt. This is a circular argument. Barton argued that whistleblowing was only needed when the government was corrupt. Historically, whistleblowers had gone to the media or the Opposition to disclose corruption and maladministration in Queensland. Thus the best means for disputing Barton’s claim of honesty is the very mechanism he says this honesty makes redundant.

Second, Barton said in the 1980’s there were no “official avenues” for whistleblowing other than going to the media. The existence of alternatives under the Bill would no longer make it necessary to contact the media.689 However, neither the Bill, nor the final Act, provided new avenues for making an internal complaint other than recommending agencies set up a process for dealing with disclosures. The CJC was the only new body, and therefore the only avenue for disclosure.690 The Opposition pointed out that the existence of independent organisations under the current Labor government did not guarantee protection for whistleblowers before 1994.691

687 Borbidge, QPD, 17 November 1994, p.10478 688 Borbidge, QPD, 17 November 1994, p.10479 689 Barton, QPD, 17 November 1994, p.10483. 690 The Public Sector Management Commission was a new body that could take disclosures, but it really only replaced the Public Service Board. 691 Fitzgerald, QPD, 17 November 1994, p.10510..

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The other reference to a procedure in the Act is s.27(2) that requires a whistleblower to follow any “reasonable” internal procedure an agency developed. This last section is a restriction on whistleblowers as it can invalidate a claim for protection if the disclosure is not made in a correct manner. The establishment of a complex, poorly understood system could provide an agency with the means of excluding a potential whistleblower that breached procedure.

To sum up, the Opposition argued that leaving the government in control of the whistleblowing process, only providing protection, and not facilitation or encouragement, resulted in the Bill being a political exercise that appeared to fulfil a Fitzgerald reform. Borbidge said the government’s failure to provide facilitation or encouragement in the Bill showed that: “the white horse of accountability is off to the knackery courtesy of the likes of the honourable members who sit opposite and the Premier, who is in charge of this legislation.”692 On the other hand, the Opposition was in power within two years of this debate and did nothing to remedy issues it identified in 1994.

7.3.3 Hypocrisy Current Ministers of the Beattie Government have demonstrated that they and their advisors have a poor understanding of the Act. There has been a preoccupation with shooting the messenger in the form of the whistleblower rather than dealing with the allegations made in their disclosure. Arguments proceeded in the press after two incidents in which Ministers named whistleblowers in Parliament. Both ministers sought and obtained, after the fact, legal protection based on the parliamentary privilege overriding the legislation.693 The Courier Mail criticised the then Health Minister Wendy Edmond for ‘demonising’ a genuine whistleblower in her department. Every public servant in Queensland has now been indirectly told that the Beattie Labor Government is prepared to abuse parliamentary privilege and expose whistleblowers to political attack for no good reason. Surely that means that potential whistleblowers now have a good reasons to have second thoughts.694

692 Borbidge, QPD, 17 November 1994, p.10481. Another National Party member, Grice said at p.10486: “This Bill should be called the ‘Whistleblowers Gag Bill’ or even the ‘Whistleblowers Persecution Bill’…” Cooper, the former National Party Premier, said at p.10504: “If I had stood in this place prior to the 1989 election as Premier and tried to introduce this Bill, the then Labor Opposition and the media would have had another feeding frenzy at my Government's expense. I would have been derided as trying, in my dying days as Premier, to both gag public service critics and, at the same time, to make a pitch for votes on the basis of a reform and accountability platform. The simple fact is that all those criticisms would have been true—and if they would have been true then, they remain true now.” 693 Torpy K 2001 ‘Nurses denounce whistleblower – Leukaemia ward on defensive,’ The Courier Mail, 6 December 2001, p.4; Parnell S 2003 ‘Spence in strife over name gaffe,’ The Courier Mail, 16 October 2003, p.4; and Potter D 2003 ‘Whistleblower probe clears MP,’ The Courier Mail, 25 October 2003, p.14. The two Ministers were Wendy Edmond and Judy Spence. 694 Franklin M 2001 ‘Sharp pitch to whistleblowers,’ The Courier Mail, 8 December 2001, p.26. The same government then went on to eject from their party a whistleblower who had implicated other party members in electoral fraud, further indicating a willingness to take action against those who make damaging claims against the party or government (Osborne P 2003 ‘Labor member expulsion hypocritical, says Opposition,’ AAP Australian News Wire, 6 October 2003.)

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No one pointed out the fact that the passing of the names of the whistleblowers to the Ministers could also be regarded as a breach of the Act.

7.3.4 Supervision 7.3.4.1 Review Supervision is an essential element in ensuring that an Act is implemented. Without steps to ensure effective application of its principles, an Act is nothing more than public relations. The WPA contains internal accountability mechanisms in the form of two separate reporting requirements. First, under s.30(2) each public sector entity must report on how many disclosures it receives each year and how many were verified.695 Second, under s.31 the Minister with responsibility for the Act, in this case the Premier, must report each year to Parliament “on the administration of this Act”. The word “administration” is rather vague. Fortunately, the Explanatory Memorandum for the Whistleblowers Protection Bill 1994 provides guidance: Clause 31… The purpose of this is to enable the Minister to provide Parliament with an overview on how the Act is being implemented across public sector entities and to raise any issues concerning the Act’s administration.

Thus s.31 reporting has two components: first, an overview of implementation of the Act across government; and second, a critique of any issues in relation to the Act’s administration. Given the number of entities involved, this would require a substantial amount of work including annual surveys of all agencies and possibly a standing working party to discuss and review issues. Fortunately s.29(3) requires all agencies to record the name of the whistleblower, the information disclosed and the action taken, and s.31(3) requires agencies, when the OPSME asks, to provide assistance with reporting on administration. However, the reporting has only occurred in a cursory manner and, even then, only in the last few years.

No reports under s.31 are contained in the annual reports of the Office of the Public Service Commissioner from 1994 to 2000, or those of the Office of Public Service Merit and Equity (OPSME), as the OPSC became in 2000, from 2000-2002. However, the 2001-2002 Annual Report states that departments were reminded of their requirements under s.30 to report in their own annual reports.696

695 ‘Public sector entities’ is defined very broadly in Sch.5(2) to cover over 400 different government bodies including all departments, local governments and statutory authorities 696 OPSME 2002, Office of Public Service Merit and Equity Annual Report 2001-2002, Brisbane, p.3. This was repeated at p.8. This is not to imply that this is all the OPSME had done. The OPSME provided advice on the Act through a hotline; discussed the application of the Act in the Queensland Public Sector Ethics Network (QPSEN); and somewhat ambiguously, “… provided advice to departmental officers on the application and implementation of the [WP] Act, particularly the recording and reporting requirements for public interest disclosures.” (OPSME 2002, Office of Public Service Merit and Equity Annual Report 2001-2002, Brisbane, pp.22-24.) They continued the

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The OPSME claims that the s.31 reporting requirements are met in the annual report of the Public Service Commissioner.697 In 2002-2003 the annual report stated: In assisting the Premier to fulfil responsibilities under the Whistleblowers Protection Act 1994, the OPSME has provided advice to departmental officers on the application and implementation of the Act, particularly the reporting and recording requirements for public disclosures.698

This statement did not provide information on the application of the Act across agencies or an analysis of the success or failure of the whistleblower regime. The 2003-04 annual report included the same sentence, less the final clause. The government interprets the Act as not requiring any further detail. A letter of July 2005 to the author from the Premier states: The reporting requirement under section 31 of the Act has been met… by a brief general statement about the administration of the Act published in the Annual Report of the Public Service Commissioner. (my emphasis)

While technically the OPSME is making a report on the administration of the Act, they are not providing any administration. No follow up on implementation was provided. No analysis was conducted of the operation of the Act in agencies or its effectiveness. No analysis was even performed on the statistics in agency annual reports.

7.3.4.2 Whistleblowers Information Sheet In 2003 the OPSME published a web document entitled Information Sheet – Whistleblowing: Answering your questions about making a Public Interest Disclosure. This document presents a plain English version of the Act. However, in doing so it provides a version that is significantly tighter than the provisions of the Act. Three points should be made: 1) the Information Sheet states that you can make a disclosure of information “giving rise to a genuine concern” about misconduct. This statement is misleading. Section 14 of the WPA states that you only need to believe honestly on reasonable grounds that the information you have “tends to show the conduct or danger”. The wording “genuine concern” implies a stronger onus on the discloser and ignores the contingency that the person need only believe it at the time of the disclosure; 2) The document states that a disclosure can only be made in accordance with the Act and that people are “required” to do so. The Act does not specify a particular format for disclosure; it just provides that protection will only be given to those who comply with the Act. Thus a whistleblower can blow the whistle by other means but they will not fall under the Act; and finally, 3) The Information Sheet states that it is “mandatory” under the ethical obligations same activities in the next two financial years. (OPSME 2003, Office of Public Service Merit and Equity Annual Report 2021-2003, Brisbane; OPSME 2004, Office of Public Service Merit and Equity Annual Report 2003-2004, Brisbane) 697 O’Farrell G, Acting Public Service Commissioner, correspondence with the author, 17 November 2003. 698 OPSME Annual Report 2002-03, p.24.

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of the Public Sector Ethics Act to make disclosures about misconduct and maladministration. This is untrue because the ethical obligations themselves hold no legal force. As s.5(3) states: “The ethics obligations are intended to provide the basis for codes of conduct for public officials and are not of themselves legally enforceable.”

7.3.4.3 Parliamentary Committee Call for Review In 2001, the Parliamentary Criminal Justice Committee (PCJC), as it was then, noted that no one had been charged with breaching the WPA or had been subject to an injunction under its provisions. This is still the case today.699 They concluded that a possible reason for this situation is that: “the Act is not being utilised effectively.” The Committee said the Act will not work unless agencies were committed to its principles.700 This commitment would not exist without “sector-wide oversight of agencies’ whistleblower reporting and support mechanisms” to ensure the Act is genuinely implemented and exercised. However, it noted that no agency was specified as having this responsibility under the Act, and the agency with responsibility under the administrative arrangements, the OPSME, had not taken up the role.701

The OPSME had, and has, responsibility “to the Premier” for the administration of the Whistleblower Protection Act 1994.702 As ‘lead agency’ for the Act the OPSME is responsible for its implementation and supervision. As the author stated as a witness, representing the Public Service Commissioner, before the PCJC in December 2000: …whilst we work with the CJC and with other agencies in relation to whistleblowing, we do not supervise their detailed actions. We have the responsibility over the Whistleblowers Protection Act, but most of our responsibilities are in relation to policy and education rather than the application and detail within agencies.703

With regard to a proper review of the administration of the Act, the author advised the Committee: …we have not done a review of how the individual agencies have conducted their application of whistleblowers, so it would be hard to give a commentary on how well they are operating. I am not saying that is not part of our responsibility; it is just something that has not occurred as yet, and it is something that we have on the list of things that we are doing.704

699 The cases that have dealt directly with the Act have not related to offences under the Act. These include: Howard v. State of Queensland [2000] QCA 223; Reeves-Board v Qld Uni of Technology [2001] QSC 314; and Ambrey v Oswin [2005] QCA 112. 700 PCJC 2001 Three Yearly Review of the Criminal Justice Commission, Queensland Parliament, Brisbane, p.141. The Committee also noted the CJC’s concerns over the perceived distrust of the Act by the average public official. 701 PCJC 2001, p.142. 702 www.opsme.qld.gov.au (viewed 22 February 2006) 703 Parliamentary Criminal Justice Committee 2000 Transcript of Hearings 14 December 2000: Three Yearly Review of the Criminal Justice Commission, Queensland Parliament, Brisbane, p.57. At the time I was a Senior Policy Officer in the OPSME. 704 PCJC 2000, p.57.

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Despite the then Director-General of the Department of Premier and Cabinet stating that there was no need for a review of the Act705, the Committee recommended an extensive review of whistleblowing across all agencies.706 The Review would take the role of the lead agency, the nature and need for oversight of the Act’s implementation and operation, training and support (including whether they should be legislated), the formation of an inter-agency committee and liaison between the CJC and the lead agency, whether further research was required and the sufficiency of annual reporting and parliamentary oversight. In its March 2001 report the PCJC noted that OPSME had advised that it was working on two reports: one on the administration of the WPA, due in February 2001; and a best practice review of whistleblowing.707 In its March 2004 report the now Parliamentary Crime and Misconduct Committee (PCMC) stated that, while the Government replied to the 2001 recommendation that it would give consideration to a review, no action either in accordance with the OPSME submission or Recommendation 33 had been taken. Consequently, it again recommended that a review be undertaken in the same terms.708 In his letter to the author of 16 May 2005 the Premier advised that a review in accordance with the recommendations of the 2004 Report was underway. However, the OPSME reported in its 2005 Annual Report, published October of that year, that the review would be delayed until the conclusion of the report of the Bundaberg Hospital Commission of Inquiry.709

7.3.5 Conclusion This section has established that the Queensland Government has not been genuine in its introduction and implementation of the Whistleblowers Protection Act 1994. As has been stated earlier, a government that fully supported such legislation would have given sufficient time to the Bill to understand fully its contents and implications, would not act in a hypocritical manner in relation to the provisions of the Act, and would ensure that the implementation of the Act was supervised sufficiently to guarantee its proper and effective operation.

The Goss Government’s mistaking of the terms of the Bill and making promises about its effects which were unsupportable showed that it was deficient in its handling of the Act. The Borbidge Government, after having made clear their complaints about the

705 PCJC 2001, p.149. 706 PCJC 200, Recommendation 33. 707 PCJC 2001, pp.149-150. 708 PCMC 2004 Three Year Review of the Crime and Misconduct Commission, Queensland Parliament, Brisbane. 709 In 2004-2005 the OPSME became and industry partner in the Griffith University study – Whistling while they work: enhancing the theory and practice of internal witness management in public sector organisations. (OPSME 2005, Office of Public Service Merit and Equity Annual Report 2004-2005, Brisbane, p.18) Commendable as this may be, it also does not meet their reporting requirements.

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inadequacies of the Act, did nothing to rectify them. The Beattie Government has also done nothing to identify or address shortfalls in the legislation, and if anything, has shown itself to be willing to allow Ministers to breach the Act.

Finally, the OPSME, the lead agency for the Act, has demonstrated its disregard for its responsibilities under the WPA. The OPSME has not audited agencies’ compliance with the Act or supervised the quality of policies in relation to whistleblowers. The agency has therefore failed not only in its own responsibilities under the Act, but also in responses to provide separate reporting to the Parliamentary Committee. Under such a regime the basis is laid for breaches of the Act to be ignored and its intent to be overridden.

7.4 Integrity Commissioner The Office of the Integrity Commissioner was established under an amendment to the Public Sector Ethics Act in November 1999. The first Commissioner, a former Supreme Court Judge, Alan Demack, was appointed in August 2000. The office was based on the Canadian office that has a similar role, but is more proactive. The Queensland office precedes the actions of the other independent offices which (other than their educative role) do not deal with individual cases until misconduct is suspected or to verify that it has not occurred. This is essential to the operation of a healthy ethical regime but the Integrity Commissioner provides a unique role in prevention through advice. As Mr Demack noted on many occasions also his role was not investigative but advisory. He was to act like a priest. Certain public officials could seek his advice about their actions or those of certain staff, in relation to whether there was a possible or actual conflict of interest. These requests and their responses were confidential. While the Commissioner is independent, there is no need for the office to report to the parliament instead of the executive. Consequently, the Commissioner provides a report to the Premier each year.

This section will analyse the operation of the office, the parliamentary debate and the criticism of the creation of the Integrity Commissioner.

7.4.1 Role of the Integrity Commissioner

The Integrity Commissioner has the responsibility to assist certain high-ranking public officials in identifying and avoiding conflicts of interest. Some officers can seek the advice of the Integrity Commissioner directly while others must be referred to the Commissioner by a superior officer. Ministers and CEO’s can seek advice about other officers. All dealings with the Commissioner are confidential. If an officer bona fide relies on the Commissioner’s advice and removes themselves from a conflicting relationship, the Act provides them with immunity from civil action resulting from the ending of the relationship.

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The Commissioner can only provide advice. The Office has no investigative or proactive powers.

The Integrity Commissioner is also required to assist in educating the public by contributing to public discussion of the role and practices of his office. This contribution usually takes the form of public presentations and lectures. A snapshot from 2005 shows that the current Commissioner, Garry Crooke QC, made presentations to the Queensland Public Sector Ethics Network, the Interdepartmental Accounting Group Conference, the Appeals Delegates of the Office of Public Service Merit and Equity, conducted a workshop on “Ethics and Advocacy” at the Queensland Bar Association Conference, the Legal Services Commission, the Justice Statutory Authority Group, the Senior Executives Group of the Department of Communities and the Australasian and South Pacific Public Service Commissioner’s Conference.

He also sent submissions to the Members’ Ethics and Parliamentary Privileges Committee in relation to the Review of the Register of Members’ Interests, and the New South Wales Parliamentary Privileges Committee.710

7.4.2 Public Sector Ethics Amendment Bill 2000 The premier listed the purposes of the Bill as: “to encourage community confidence in Government and public institutions by helping Ministers and other elected and appointed senior officials avoid conflicts of interests.”711 This goal would be achieved if senior officials obtain advice from the Integrity Commissioner of potential conflicts of interest. A reduction in the number of scandals eventuating from conflicts of interest would increase confidence in the government. Beattie’s expectations rely on two premises. First, there are inadvertent conflicts of interest as opposed to those which are intentional schemes to obtain a personal advantage from office. Second, as the existence of the Integrity Commissioner would not affect intentional actions, those who have doubts but good intentions, will seek advice and, based on this advice, desist from actions which would create or act upon a conflict. Politicians and senior officials taking action to prevent their own potential misconduct would fulfil the Premier’s intentions. As Beattie noted:”My Government wants to return public faith to our political processes, and we will lead by example in our quest to improve the quality of this State's political life.”712 Feldman from

710 Integrity Commissioner 2005, Annual Report to the Premier – June 2005, Queensland Government, Brisbane. 711 Beattie, QPD, 26 May 1999, p.1942. 712 Beattie, QPD, 26 May 1999, p.1942.

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One Nation highlighted this lack of confidence when he said: “One Nation would not exist and I would not be here if people had trust and faith in the integrity of Governments.”713

But the very nature of intentional misconduct would mean that this scheme would not be able to discover the action. As Borbidge pointed out, these amendments would not have prevented some of the scandals that had been uncovered in the preceding years, and would not detect them in the future.714 Would the presence of an in-house ethicist have prevented the disgraceful net bet affair? Could such an appointment have better regulated the terms and conditions let alone the methodology on which Helen Ringrose was able, with the support of the Director-General of the Department of the Premier and Cabinet, to parachute out of City Hall into the soft landing provided for her at the Executive Building? Might this mechanism if, in fact, it had been in place before the horse bolted, have prevented the head of the Public Service, Brian Head, exempting himself from the selection process for his high office and highly paid position?715

Much weight in the Premier’s argument rested on the proactive nature of the system rather than the reactive nature of other anti-misconduct procedures. Rather than waiting for a breach and taking action against the perpetrators, the Integrity Commissioner would be preventing such conduct in the first place.716 Beattie described this action as proactivity on the part of the Commissioner, but strictly speaking it is proactivity on the part of the public official who seeks advice. The Commissioner is entirely reactive, waiting for someone to come to him/her and obtain their opinion on a matter. Consequently, the amendment deals principally with means of providing incentives to participate, including: confidentiality and exemption from FOI; and protection from civil suit for those who act upon the Commissioner’s advice.

The great misunderstanding with the new scheme was based on this point. The constant reference to a proactive commissioner gave the impression that the office was a watchdog rather than, as the first Integrity Commissioner used to describe it, a parish priest. This persisted throughout the debate despite the Premier making a clear statement to the contrary.717 Some Opposition members wanted to know why they could not refer conflict of interest breaches to the Commissioner. But as the Premier correctly pointed out, such referrals were outside the Integrity Commissioner’s power and the CJC or other bodies could deal with them.718 Borbidge actually used this point as a topic for

713 Feldman, QPD, 11 November 1999, p.4985. 714 Borbidge, QPD, 11 November 1999, pp.4980. 715 Borbidge, QPD, 11 November 1999, pp.4981. When Santoro raised similar matters in Parliament the Premier accused him of trying to make the public cynical. Later on radio he said those who opposed the appointment of Helen Ringrose simply did so because they ‘hated women’. Santoro, p.5002-5003. 716 Beattie, QPD, 11 November 1999, pp.5015. 717 Beattie, QPD, 26 May 1999, p.1942. 718 Beattie, P, QPD, 11 November 1999, p.5017

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complaint. He saw the reactivity of the Commissioner as a weakness in the system and thought he should be proactive.719

Some politicians thought the introduction of the Integrity Commissioner was an indicator of the moral deficiencies of modern government. As the Independent member, Liz Cunningham, explained: “I am not convinced that the public needs a lot of help in understanding what our ethical behaviour ought to constitute. They just expect honesty and openness on the part of elected people. When that does not occur, people’s appreciation of those in elected roles deteriorates.”720 But Borbidge was more blunt: “…people who need the services of an ethics advisor to define the critical difference between what is proper and what is improper should not be in charge of the bickie tin, anyway.”721

The Opposition thought that the confidential nature of the Commissioner’s operation was designed to conceal wrongdoing: “This Bill smells of a stitch up. It smells of a cosy little in-house deal so that the Premier can say that he has nothing to hide and that he has a Queensland Integrity Commissioner to prove it.”722

Borbidge said the initiative was simply an act by the Premier to impress the public: “…the Bill is less about cleaning out the stables than it is about putting on a nice public relations front.”723 Springborg said the Bill was weak - “The very fact that the Integrity Commissioner will be a part-time position, supported by fewer than two people, highlights the anticipated workload and importance of this office by the Government.”724

In summary, the Commissioner has a reactive role which opens his office up to criticism. If a person wants to conceal their conflict of interest the Commissioner is in no position to expose the conflict. The Opposition mistook the initiative as a new watchdog on integrity rather than a means of prevention. The apparent ineffectiveness of the Office when viewed from this mistaken perspective drove much of the criticism.

7.4.3 Review During the debate on the Bill, Grice said: “I fail to see how this Parliament, or anybody else, would have a clue whether the Integrity Commissioner is a raging success or an

719 Borbidge, R, QPD, 11 November 1999, p.4978 & 4988; see also Santoro, S, QPD, 11 November 1999, p.5001. 720 Cunningham, L, QPD, 11 November 1999, p.5008 721 Borbidge, R, QPD, 11 November 1999, p.4981 722 Borbidge, R, QPD, 11 November 1999, p.4980 723 Borbidge, R, QPD, 11 November 1999, p.4982, Santoro, S, QPD, 11 November 1999, p.5001; Johnson, V, QPD, 11 November 1999, p.5009; and Grice, QPD, 11 November 1999, pp.5012- 5013. 724 Springborg, L, QPD, 11 November 1999, p.4987

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absolute failure.”725 This seems a reasonable comment as the Commissioner’s reporting would be confidential and there would be no external means of determining whether the persons seeking advice actually took it. The second major criticism of the office, was the small number the Commissioner examined. Many critics consider that the Commissioner’s workload does not justify his salary. But his rate is a reasonable retainer for a person of his experience and qualifications, and the potential cost savings that flow from preventing a conflict of interest, its discovery, investigation and subsequent sanctions, make it extremely cost effective.

It is true that no one can investigate the individual cases to seek what is the effect, if any, of the Commissioner. But it is possible to make an estimate of his effectiveness. The following table is a summary of all the approaches made to the Integrity Commissioner from 2000 to 2004, and their outcomes.

Received From Number Potential Conflict No Conflict No Resolved jurisdiction Premier 9 5 3 Premier & Treasurer 1 1 Minister or Parliamentary 19 13 3 3 Secretary Director-General 21 11 8 2 Other 34 11 6 17 Total 84 41 20 22 (source: Annual Reports to the Premier 2000-2004)

If the forty-one potential conflicts only cost $250,000 – an extremely conservative figure - each to resolve then the Integrity Commissioner has saved the government $10.25m. After deducting the office costs of $150,000 per annum726 for four years totalling $600,000, this still leaves a saving incurred of $9.65m. On this basis the Integrity Commissioner is a valuable addition to the Queensland ethics regime.

The Integrity Commissioner is the only initiative that cannot be abused in a Downsian manner. First, there is no decision being made which the Executive can influence. Second, it is designed to be preventative and the protections provided to the participants only apply if they remove their conflict of interest. Thus the Act provides rewards for good conduct rather than punishment for misconduct.

725 Grice, QPD, 11 November 1999, p.5014 726 Integrity Commissioner 2005, Annual Report to the Premier 2004, Queensland Government, Brisbane.

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7.4.4 Conclusion The Integrity Commissioner is an example of an effective and sincere initiative to reduce misconduct in the Queensland Public Sector. The Commissioner provides advice to voluntary participants to avoid conflicts of interest. If they follow the advice, the person is protected from legal suit if they break off their conflicting relationship. Part of the incentive for participation with the Commissioner is the guarantee of confidentiality. The Opposition mistook the nature of the Commissioner’s role believing that the confidentiality was a sign of a cover-up and the reactivity indicated that the office would have little effect other than allowing the Premier to claim credit for a new ethics initiative. However, the Commissioner’s role can be justified solely on the basis of the prevention of conflicts of interest investigations and prosecutions.

Most importantly for this thesis, the Integrity Commissioner initiative is an example of a blending of the rational desires of both the government and the public service, in a manner which assists the public. The Government conceals and prevents actions which would embarrass it and reduce its chances of re-election. The public servants can avoid entanglements which would damage their careers. Finally, the public have a more ethical, if not more open, public service.

7.5 Conclusion This chapter has dealt with the remaining ethics regime changes made since the Fitzgerald Inquiry but not covered in chapters 5 and 6.

The chapter began by looking at the CMC. This watchdog was established after a Fitzgerald recommendation that an external reviewing body was needed to supervise both the police and other public officials. The original CJC and the now CMC, have both been successful in investigating official misconduct and assisting agencies and educating staff to prevent unethical behaviour. The government of the day had no choice, politically, in the introduction of the CJC. The National Party passed the establishing legislation and the Labor Government set up the agency. However, this was the sort of agency that a rational government should avoid, as the government does not control the watchdog’s operation and, unlike the Ombudsman, the CJC could investigate the type of misconduct which could embarrass and possibly ‘bring down’ a party in power.

Successive governments reacted negatively to the agency with the biggest conflict occurring in relation to the Carruthers Inquiry into the Mundingburra by-election. The Coalition government openly attacked the CJC via the establishment of a counter-inquiry. If the parties involved had been more professional in their behaviour this matter would not

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have escalated to the level it did. In the long term, the CMC has been successful in retaining its independence and investigating misconduct.

The second initiative discussed was the FOI Act. Once again the Act was a core Fitzgerald recommendation that conflicted with the rational desires of any incumbent government. The Act shifted the onus on to the government to prove information could not be released although it provided a range of exceptions. It took the power of information control out of the hands of the government and gave it to the public. The government was more successful in reducing the effectiveness of the FOI Act than it was the CMC. It introduced amendments that effectively give it the power to bringing any document to the notice of either the Cabinet or Executive Council and thereby exclude it from publication. The government’s achievements in this regard may be due to the non- existence of any organisation which could have defended FOI in the same manner as the CMC could defend itself.

The Government took a different tack with the Whistleblowers Protection Act 1994. Rather than reduce the effectiveness of the Act by amendment or attack a core body, of which none exists in relation to whistleblowing, the government relied on the general lack of knowledge or institutional support for the Act to make it ineffective.

This chapter has demonstrated that that the MLA’s did not understand the nature of the legislation they were introducing and therefore the government did not take the Bill seriously. It also demonstrated that ministers had acted hypocritically in their own dealings with whistleblowers thereby undermining the substance of the Act. Finally, it was established that neither the government nor the lead agency, the OPSME, had done anything to ensure the Act was implemented or working effectively. In the case of the OPSME, it was also shown that its inactivity further undermined their exemplification of the Public Sector Ethics Act 1994. No one is establishing that the Whistleblowers Protection Act 1994 is being implemented correctly. No one is determining whether all agencies even fully understand the provisions of the Act. And no one is reviewing the Act to determine whether it is working and/or how it can be improved.

Finally this chapter discussed the Integrity Commissioner. This initiative is the only one that did not arise from the Fitzgerald Inquiry. Ironically it has been the most successful in its own modest way. The Integrity Commissioner helps officials identify and avoid conflicting relationships. His role blends of the rational desires of both the government and the public service, in a manner which assists the public. The Government conceals and prevents actions which would embarrass it and reduce its chances of re-election. The public servants can avoid entanglements which would damage their careers. Finally,

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the public have a more ethical, if not more open, public service. This blending is the source of the success of the Commissioner. Without the mutual satisfaction it engenders it is likely that the government would have sought to undermine the Commissioner’s effectiveness.

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Chapter 8 Conclusion

This thesis has examined the following hypothesis: The Queensland government has avoided implementing effective ethical regimes where such implementation would lower the probability of achieving re-election.

Each of the chapters has tested the hypothesis in relation to different periods of history. After establishing the development of the British government to the 19th century the remaining chapters examined the application of the hypothesis to the Queensland public sector. The method of the analysis was the application Anthony Downs’ Public Choice Theory using the framework of what I termed the beneficiary-servant relationship.

8.1 Beneficiary-Servant Relationship In this thesis the civil service relationship was described as one between beneficiaries and servants. It has been assumed that public officials are employed to provide services to ‘beneficiaries’; the people who receive the direct benefit of the services provided. The membership of the beneficiary class changed over time. Since the Dark Ages there has been a progressive increase in the number of people who formed the beneficiary class. Under a monarchy the king or queen was the sole beneficiary, and under a democracy all the enfranchised adult population are beneficiaries. The expansion of Parliamentary representation led to a growth in beneficiaries in British history. The ability to elect the government provides a means of influencing government policy. Only those who can receive a benefit can influence policy. Historically, the enfranchised section of the population has been made up of those people who have an interest in the success of the nation.

Regardless of the period in history, certain rules applied to the beneficiary-servant relationship. First, servants in the performance of duties can only serve their own interests to extent that they do not diminish or damage the interests of any beneficiary. Servants are recompensed for the submission of their interests to those of their employer. Second, the beneficiary can supervise their servants to ensure that the servants are performing their duties adequately and acting in the interest of the beneficiary. Accountability of servants is an appropriate mechanism by which the beneficiary may ensure that the contract of service is being met. Finally, the beneficiary may be justified in discharging a servant who is found to diminish or damage the beneficiary’s interests. Such action on the part of the servant would be regarded as a breach of contract. Consequently, the beneficiary may terminate the contract.

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8.2 Public Choice Theory The theoretical framework of the thesis was Anthony Downs’ Public Choice Theory. Downs postulates that all rational persons are motivated primarily by self-interest and will prioritise the satisfaction of their interests above the needs of others. Downs’ hypothesis has two parts. First, he said rational people follow a self-interest axiom (the axiom). The axiom states that rational people will seek their own safety and happiness even it requires the loss of safety and happiness of others. A rational beneficiary would always demand that their needs are met in preference to the needs of the servant. Likewise, servants will only serve if their recompense adequately compensates them for suspending their own needs.

The second part of Downs’ hypothesis, termed self-interest efficiency in this thesis, stated that in pursuing the first premise, a rational person will allocate time efficiently to produce the greatest benefit for the least effort. A rational beneficiary hires other people to produce the service for them thus adopting self-interest efficiency by not performing actions themselves. A rational servant, on the other hand, would allocate the least time and effort for their remuneration; or the least amount of compliance with the beneficiary’s needs for the greatest compensation.

These presumptions necessitate a constant conflict between the beneficiary’s desire for the most benefit for the least expense and the servant’s desire for the greatest compensation for the least time and effort. The outcome of this conflict has been shown in the historical content of the chapters in the form of constant attempts by the public to ensure good service by their public servants.

Chapter two demonstrated this hypothesis in English history. Feudal monarchs experimented with a system that would provide loyal, competent servants to implement their will. The experiment failed due to the supremacy of rational self-interest over loyalty. The kings gave land to vassals in return for serving the king’s interests in that region. This arrangement was rational because it extended the king’s influence beyond the land he could visit in person. By delegating authority the king could rule a large area more efficiently than if he micro-managed each region. However, the vassals wanted the largest return for the least effort. Rather than rule on behalf of the king, they could rule on their own behalf. The vassals realised that if they kept the land, and the soldiers, and supported each other, they king could not harm them. Consequently, the king was deprived of both income and power. In effect, the king sought the most rational method of achieving his goals, but expected his vassals to act irrationally.

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In response, the kings employed new servants from the Church and gentry. They were more successful in securing loyalty because they tied the interests of the servants to the success of the King. The servants relied on the King’s patronage for success, so if the king failed they lost their patronage. Thus the king was rational because he achieved an effective decentralised authority. The vassals were rational because their rewards adequately compensated them for their service. The servants were willing to suspend their own interests in the short term because of the rewards the king could provide in the long term. This was the first government system in England in which success relied on the beneficiary and the servant being rational. However, like the magnates before them, the gentry obtained their own power independent of the king’s grace.

The rise of power of Parliament gave the gentry a vested interest in Britain. The gentry’s investments in trade and industry gave them independence to succeed independently of royal patronage. Their progress depended on the success of England rather than the success of the king. The concept of the common good, at least between the beneficiaries, began to take precedence over the king’s good. Public support led to the reduction of power of the king in favour of Parliament. The voting gentry became beneficiaries of government. They wanted the civil servants to serve their interests. It was imperative that the civil service be objective, impartial and fair, to ensure everyone’s interests were met. Consequently, patronage was no longer a valid political tool because it was designed to provide exclusive personal advantage at the expense of providing the highest quality service. Another consequence was a change in trust. Kings had developed trust with subordinates through a system of rewards. An electorate prefers to ensure trust by only allowing their own members to hold significant offices in the service. Thus the civil service staff are a reflection of the enfranchised portion of the community.

A parliamentary system also introduced the political party as intermediary between the civil service and the beneficiaries. The Party usurped the patronage powers of the king to be used to its own advantage. Downs said political parties are a team of people seeking public office through electoral success. Electoral success is the focus of the team although individual members may have other goals that require public office for their attainment. From the team’s perspective this is a secondary goal. Thus the rational end for an elected government is ensuring re-election.

Their chances of re-election are enhanced because voters have no incentive to follow politics closely. The average person sees little benefit in applying time to following politics. The benefits received from government, such as roads, education, safety and other services, are mostly indirect and mundane, and therefore they are taken for granted. Downs said voters judge political parties based on our Utility Income; the

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aggregate of benefits, either known or unknown, that each of us receives from the government. A rational individual will vote for the party which provides them with the best perceived utility income in the future.

When the positions of the political parties and the voters are combined we can conclude that political parties seek re-election, most voters do not follow the actions of politicians closely and, therefore, political parties should spend more time trying to look good than being good.

Political parties can get re-elected without exceptional performance in office as long as they maintain good public relations.

This thesis also concluded that circumstances will arise in which it is rational for some holders of public office to manifest this utility through corruption. Corruption is possible if a rational person is faced with an illegal opportunity to reach their goal more efficiently than through legal means, and a low chance of getting caught. The circumstances will arise in which the balance of greed, return and poor detection will provide a very efficient circumstance for utility income. Similarly, some public officials may perceive the most efficient means of meeting their self interest would be to perform the minimum amount of work that they could feasibly get away with, leading to maladministration. Consequently, there is a reasonable likelihood that corruption, negligence and mistakes will regularly occur.

A manifestation of corruption is the retention by parties in power of the control of patronage and discipline. Patronage is essential for the provision of rewards for loyalty and service in the interests of the party, that is, re-election. A government can also achieve leverage with the power to use discipline as a means of punishing staff who take action that threatens the opportunity for re-election. The existence of an entirely objective and meritorious process of employment, promotion and discipline would weaken the power of the government by shifting these levers of control out of their hands.

The government cannot be re-elected if the public becomes aware of actions of corruption and/or negligence, as the voters will see a reduction in their utility income. However, rational voters pay very little attention to politics. If the diversion or waste can be kept from public knowledge, the government will suffer no detriment in the pursuit of its goal of re-election. Therefore, it is in the interest of an incumbent rational government to keep corrupt, negligent or incompetent incidents secret. The public can address this flaw by demanding the establishment of a system of accountability.

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Given that government cannot avoid corruption and mismanagement, an accountability mechanism can only get them into trouble. Therefore they will try to avoid accountability. Fortunately for the government the weakness of the accountability systems prevents the voters from knowing that the system is weak and, consequently, the true extent of corruption, negligence and mistakes. Rational public officials will also seek to avoid meeting ethical standards that require more work. This avoidance will lead to inadequate reporting. Thus in the same manner as government inactivity disguises misconduct, the public officials’ failure to comply is the best method of concealing their own faults.

This thesis has determined each government’s commitment to accountability by examining the manner in which the government has developed and implemented the accountability mechanisms. A government with a bona fide intention would ensure they had an understanding of what they were implementing, avoid hypocritical actions which undermine the policy and ensure public servants understood the legislation, and that it was being implemented and carried out in accordance with the spirit of the Act. The chapters also determined whether the government retained power over patronage and discipline.

By examining the compliance with each of the fundamentals outlined above, the thesis has been able to make a judgement of the commitment of various Queensland governments to accountability.

8.3 Queensland Colonial Government Governor Bowen introduced the first civil service system into Queensland. He was aware of what he was doing but was unaware of the inability of his colony to meet his intentions. Bowen wanted a local version of the Northcote-Trevelyan civil service in Britain. Unfortunately, Queensland did not have a local gentry and the small colony could not provide sufficient skilled men to fill the positions. A new gentry was devised and was exclusively represented in parliament and civil service employment. Ministers ensured their re-election through creating a civil service that reflected the values of the voters. As the electoral qualifications changed to allow full male suffrage, the employment requirements became more egalitarian, and lost the distinctive criteria associated with the gentry.

Throughout the colonial period, ministers held on to the power of appointment and promotion to be able to manage public perception. The various ‘impartial’ Boards established were still subject to the approval of the ministry. Despite public statements supporting merit, ministers continued to practice patronage. By the end of the century the Public Service Board was made up entirely of ministers. Ministers also controlled

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discipline. Ministers could initiate their own disciplinary actions as well as veto those of the Board or departmental head. The Act also retained an extraordinary catch-all provision under which a minister could make a subjective judgement as to a person’s fitness to work in the service.

The civil servants also acted rationally in preserving seniority as the criteria for promotion and automatically providing increments to staff. The government had conducted inquiries into both matters and often raised these practices as deficiencies in the system. However, they were unable to break the civil servants tradition. It was clear that the government did not enforce the implementation of the public service legislation.

8.4 Twentieth Century The twentieth century Queensland government continued to reflect rational practices in administration.

The growth in the size of the service required the daily management of the public service to be delegated to a Public Service Commissioner. The commissioners were effective managers of the service and improved the integrity of the system of Queensland public administration in line with rational public demands. The public service commissioners tried to ensure that the public sector produced the greatest benefits for the least investment. They tried to remind officials that holders of secure and well paid public service positions owed a debt to the community that they had to repay with good service. Story was unsuccessful in trying to remove automatic allocation of increments and the reliance on seniority for promotions. Finally, Story also attempted to reduce the silo mentality in favour of a sector-wide approach. These cultural themes and practices continued into the 1980’s. During Sir Joh’s premiership, the role of public service supervisor was given to a Board and then distributed to CEO’s as the number of public servants grew.

The service continued to reflect the provision of full male suffrage but failed to pass on the same advantages to women with the advent of full adult female suffrage. In order to maintain the concept of the nuclear family headed by a male breadwinner, women were reluctantly incorporated into the service. Every female employed was seen as putting a man out of work and depriving a family of an income. However, these policies were changed when there was a shift in the public support for equal treatment for women in the 1960’s.

Meanwhile the various ministers retained control over the system. The Commissioner was always under the direction of the Cabinet and the ministers could act without

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consulting him. In practice the ministers had created a more efficient system of patronage. They no longer needed to administer every employment and promotion decision. Ministers only needed to retain the power to intervene when necessary to ensure their preferred outcome. Thus, at the same time as they spoke of the integrity of the Public Service Act 1922, ministers were acting in their own interest. This self-interest has been demonstrated through examples of the battle over compulsory unionism and the attempts to ensure government control over embarrassing information, as epitomised by the Creighton case. No watchdog bodies were established that could have interfered with ministerial activity. Nonetheless, the government introduced the Ombudsman and the Financial Administration and Audit Act 1977 to appear accountable.

Irrational behaviour arose through the excessive pursuit of Downsian goals. The unrestrained self-interest of the police and ministers resulted in the Fitzgerald Inquiry. The Inquiry brought about the end of the specific practices covered by its terms of reference and the introduction of new reforms and watchdog agencies.

Some critics tried to implicate the general public service in the scheme of corruption, but they did not succeed. The critics did not provide clear evidence to support their arguments and they did not have a consistent case to support their allegations.

8.5 Public Sector Reform After the Fitzgerald Report, governments began reforming the system with a view to improving productivity relative to resources. The Savage Report into the public sector recommended management changes that would introduce a private sector flexible management style. The recommendation was rational from the public’s perspective as it would result in greater efficiency within the public sector. Management was taken out of the hands of a central authority and given to the CEO of each government agency. Savage, and the National Party government, believed that increased independence of management would reduce bureaucracy and improve productivity. The National Party government passed the Public Service (Board’s Powers and Function) Act 1987 to remove the Public Service Board, and gave effect to the Savage recommendations in the Public Service Management and Employment Act 1988.

The Act was presented to the public as public sector reform, but it did not remove patronage or discipline from the power of Cabinet. The removal of a central body reduced oversight and accountability. The government’s reforms were also illusory as half of the claimed initiatives were already in place under previous legislation.

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Public expectation to implement the Fitzgerald reform agenda bound the Labor government. Their own goals to reorganise the management of the public sector were also implemented but were given a characterisation as being a part of the same agenda. Labor returned to a centralised model with the establishment of the PSMC, which left human resource decisions in the hands of the CEO’s and ultimately the ministers. The PSMC was successful in meeting its goals especially the introduction of a universal merit selection policy. Otherwise, there were very few reforms as the Public Service Management and Employment Act 1988 was left intact. The creation of the SES was insignificant as it involved merely a reclassification of existing positions rather than legislative reform. Labor did not give effect to most of the complaints it had made about the Act when in Opposition.

The National-Liberal Coalition passed the Public Service Act 1996 on the basis of major reforms to the management of government agencies and a general improvement in efficiency. The replaced the PSMC with a new, less powerful, Public Service Commissioner, reduced the size of the SES, and placed the remaining SES officers on contracts. Otherwise the Act simply restated the provisions of previous Acts but presented them as new initiatives. This system continued the disciplinary powers that existed under the Public Service Management and Employment Act 1988. CEO’s and ministers retained the power to make unrestrained disciplinary decisions based on vague offences with no guidance on sanctions.

The Beattie government did not introduce any amendments to the Public Service Act 1996 to address the fundamental concerns it raised in the debate on the Bill. The current government has extended the range of exemptions from merit selection to the broadest range since 1863 and therefore greatly widened the ability of ministers and CEO’s to make direct appointments.

Consequently, the last four governments have contributed to an erosion of safeguards against patronage. The power of the central public sector reviewing body has been reduced from a supervisory organisation to an advisory agency with limited policy responsibilities. The movement of human resource responsibilities to CEO’s has reduced oversight and increased the influence of ministers.

8.6 EARC Ethics Regime The formalisation of ethics in the Queensland public sector was a worthwhile enterprise which was developed poorly. EARC was given the power to investigate ethics in the public service. While it may have conducted high quality research, when reading this Report, it is very difficult to identify logical argument supporting the codes or consistent

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policy. The PEARC did not address the lack of consistency and appears to accept the Commission’s justifications. The government accepted most the recommendations without question. The Premier used the same arguments as EARC in his Second Reading Speech, despite their lack of logic. Most of the parliamentary debate on the Bill was not related to justification of its provisions. It is possible to conclude that the lack of constructive debate by anyone demonstrates a lack of genuine concern about their contents.

The Government implemented the proposals through the Public Sector Ethics Act 1994. But they reduced the systemic safeguards EARC proposed. Significantly, they ignored a key proposal of both the EARC and PEARC that there be an independent Office of Public Sector Ethics to oversight and provide advice on Codes. There has not been any review of the effectiveness of the Act’s provisions. There has been no publication of any information in relation to the administration of the Public Sector Ethics Act. It is not clear that agencies or ministers held the Act in high regard or considered it important. It is, therefore, reasonable to conclude that the ethics regime is not regarded as a significant issue for the government.

8.7 Other Changes The CMJ was established as an external reviewing body to supervise both the police and other public officials. The original CJC and the now CMC, have both been successful in investigating official misconduct and assisting agencies and educating staff to prevent unethical behaviour.

It was not rational for the government to set up an independent body that could uncover both corruption and maladministration. However, the rational outcry from the public that their utility income be protected ensured that success in an election depended more on compliance with the Fitzgerald recommendations than with long term protection of party patronage. Successive governments attacked the CJC as they tried to create the most favourable position for themselves. The Labor government and the Opposition claimed the CJC Commissioners were biased. But the most forceful attempt to undermine the CJC was the Coalition move to subvert the Carruthers Inquiry into the Mundingburra by- election. Despite the government’s actions, the CMC, as it is now, has retained its independence and investigative powers.

The Freedom of Information Act 1992 did not survive the attacks intact. The Act took the power of information control out of the hands of the government and gave it to the public. The government introduced amendments that effectively give it the power to exclude any document from publication by bringing it to the notice of either the Cabinet or Executive

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Council. The government’s achievements may be due to the non-existence of any organisation which could have defended FOI in the same manner as the CMC could defend itself.

The Government took a different tack with the Whistleblowers Protection Act 1994. This legislation improved the chances of corruption and maladministration coming to the public’s attention. The government relying on the general lack of knowledge or institutional support for the Act was able to make the legislation ineffective. The government did not take the Bill seriously; MLA’s did not understand the nature of the legislation they were introducing. After its enactment, ministers acted hypocritically in their own dealings with whistleblowers thereby undermining the substance of the Act. The government has not taken any steps to ensure the Act was implemented or working effectively.

Finally this chapter discussed the Integrity Commissioner. This initiative is the only one that did not arise from the Fitzgerald Inquiry. Ironically it has been the most successful in its own modest way. The Integrity Commissioner prevents misconduct by helping officials identify and avoid conflicting relationships. This activity blends the rational desires of both the government and the public service, in a manner which assists the public. The Government conceals and prevents actions which would embarrass it and reduce its chances of re-election. The public servants can avoid entanglements which would damage their careers. Finally, the public have a more ethical, if not more open, public service. This blending is the source of the success of the Commissioner. Without the mutual satisfaction it engenders it is likely that the government would have sought to undermine the Commissioner’s effectiveness.

After 107 years Queensland governments have retained their control over their ability to manipulate invalidly the actions of other persons to improve the chances of re-election. Ministers have the power to make appointments outside of the merit selection process and to use vague disciplinary provisions to punish those who may endanger the government’s positive public face. During this entire period they have passed many Acts which purport to improve the integrity of the public service. In every case the legislation has either not introduced provisions that are effective, or the government has not attempted to give effect to the substance of the enactment.

The reasons for this situation are the conflict between the Downsian desires of the electorate, the government and the public service to each meet their own goals in the most efficient manner. In a modern Westminster based democracy, the only source of legitimacy is the rational desires of the voters. The only successful initiatives in

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Queensland have been those which have found a common ground between these three competing desires. The Public Service Commissioner system under the Public Service Act 1922 created a system in which ministers could practice patronage more efficiently, and the public could see the provision of a better quality public service. The system was undermined by the rational practices of the public servants, but on the whole produced a more reliable public sector than any other structure in Queensland history. The Integrity Commissioner is more successful as it meets the government’s desire to avoid unwanted corruption, helps public servants to avoid being caught for inadvertent misconduct, and, by reducing conflicts of interest, improves the quality of the service provided to the public. This initiative can act as a guide for future reforms of the public sector ethics regime.

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Woodham-Smith C 1958 The Reason Why: The Story of the Fatal Charge of the Light Brigade, Penguin Books, London.

Young M 1987 ‘The British administration of New South Wales 1786-1812,’ in Nethercote J & Eddy J (eds.) From Colony to Coloniser: Studies in Australian Administrative History, Hale & Iremonger, Sydney, pp.23-41.

Cases Cited

Ambrey v Oswin [2005] QCA 112

Carruthers v Connolly (unreported decision, Supreme Court, Thomas J, 5 August 1997)

Commonwealth v. Northern Land Council and Anor. (1993) 112 ALR 409

Fencray v. Department of the Premier, Economic and Trade Development (1993) 1 QAR 123

Howard v. State of Queensland [2000] QCA 223

Reeves-Board v Qld Uni of Technology [2001] QSC 314

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Queensland Legislation Cited

The Civil Service Act of 1863

The Civil Service Act of 1889

The Civil Service Act Repeal Act of 1869

Criminal Justice Act 1989

Criminal Justice Amendment Act 1997

The Crown Employees Act of 1958

The Elections Act of 1885

Elections Act Amendment Act 1965

Electoral and Administrative Review Commission Act 1989

Financial Administration and Audit Act 1977

Freedom of Information Act 1992

Industrial Arbitration Act 1916

Industrial Conciliation and Arbitration Act 1929

Land Administration Act

Married Women’s Property Act 1890

Parliamentary Commissioner Act 1974

Parliamentary Committees Act 1995

Public Sector Ethics Act 1994

Public Sector Legislation Amendment Act 1991

Public Service Act of 1896

Public Service Act 1922

Public Service Act 1996

Public Service Act Amendment Act of 1901

Public Service Act Amendment Act 1968

Public Service Acts Amendment Act of 1920

Public Service (Board’s Powers and Function) Act 1987

Public Service Management and Employment Act 1988

Vagrants, Gaming and Other Offences Act

220

Whistleblowers Protection Act 1994

221