Merit Protection Commissioner’s review

Jeff Lamond, Merit Protection Commissioner

The APS Values, articulated in the Public Service Act 1999 (the Act), provide a framework of enduring principles of good public administration. One of those Values is that ‘the APS provides a fair system of review of decisions taken in respect of APS employees’ (section 10(1)(o) of the Act). A key part of my role as Merit Protection Commissioner is to provide support for this Value by providing independent external review of actions affecting individual APS employees.

The review system established under section 33 of the Act and associated regulations enables non-Senior Executive Service (SES) APS employees to apply for review of actions that relate to their employment. My powers as Merit Protection Commissioner are recommendatory only except in the case of a review of a promotion decision by a Promotion Review Committee (PRC), where the decision of the PRC is binding on the agency head. In all other cases, agency heads are required to advise me and the relevant employee of their decision on the recommendation and the reasons for the decision. The Act provides that, if I am not satisfied with the response to a recommendation I may, after consulting the Public Service Minister, give a report on the matter to the agency minister, the Prime Minister and the Parliament.

In 2005–06, agency heads accepted our recommendations in all but two cases arising from reviews. One of these cases dealt with a review in the Australian Taxation Office (ATO), where the agency accepted the recommendation to vary the findings relating to a breach of the Code of Conduct, but did not agree with the recommendation to vary the sanction imposed.

After meeting with the agency to discuss this issue, I agreed with the position taken not to accept the second recommendation. Another case dealt with a review in the Department of Employment and Workplace Relations (DEWR) that was finalised in 2004–05 where, after discussing the relevant issues with the department, I decided not to pursue the matter further.

Information on the number of applications for review, the nature of reviews, and discussion of trends, is provided under Analysis of performance. While the numbers of applications made fluctuates from year to year, I note that numbers this year were not greatly dissimilar to those for 2004–05 in most of the review categories.

Performance information for 2005–06 shows that the achievement of timeliness targets in relation to review work continues to be an issue. I am currently analysing this situation to ascertain whether the current targets should be revised, focusing in particular on whether the current timelines are reasonable and in the main achievable; whether the current benchmark of 90% of reviews completed within the target time is achievable; what the more common reasons are for not meeting timeliness targets; and what we can change to more effectively complete review work within any specified timelines. I am conscious that the Public Service Regulations provide that it is intended that employees’concerns be dealt with quickly, impartially, and fairly, and that realistic timeliness targets must reflect this tension between responding in a timely manner, and ensuring a fair opportunity for applicants to put forward their case.

I have noted from the State of the Service Report 2004–05 that, during that financial year, 45 agencies finalised investigations into the behaviour of 865 employees suspected of breaching the Code of Conduct. Around eight percent of employees who were found to have breached the Code of Conduct subsequently lodged an application for review of that determination and/or the sanction imposed, which is a similar result to both 2003–04 and 2002–03. The report noted that release of a good practice guide on the management of suspected breaches of the Code of Conduct was expected to occur in 2006. This guide should help agencies to review and where necessary improve processes associated with determining whether a breach has occurred and to apply sanctions more consistently.

This year I have continued to provide input to the Commission’s review of the Act and associated subordinate legislation, as have Commission employees who help me perform my functions. At the start of the review, I accompanied the Public Service Commissioner to meetings with a number of Secretaries and heads of large agencies to identify their concerns. The final settlement this year with the Australian Government Solicitor (AGS) of a number of threshold issues relating to my role and the review function was particularly useful in terms of assisting with the development of options for change.

In November 2004, under its Linkage Project Scheme, the Australian Research Council approved funding for the Whistling While They Work: enhancing the theory and practice of internal witness management in public sector organisations project. The Commission is providing some small non-financial support for this three-year project that is being led by the Key Centre for Ethics, Law, Justice and Governance at Griffith University. This year, the Commonwealth Ombudsman and I jointly sent out letters and surveys to a wide group of Commonwealth agencies to invite their participation in the first stage of data collection for the project. The survey sought advice on agency procedures for managing issues surrounding internal reports of wrongdoing, and asked agencies to indicate whether they would be available to participate in subsequent stages of research.

The Commonwealth Ombudsman is currently undertaking a review of the Ombudsman Act 1976. In 2005–06, I met with employees of the office of the Commonwealth Ombudsman and the Department of the Prime Minister and Cabinet, as well other Commission employees, to discuss options for change. The input that I provided in this context was around ensuring that the relevant legislation retains coherence with the rest of the administrative review system.

This year I attended, along with my Adviser and the Regional Directors of the ACT and Victorian regions, the 12th National Public Sector Appeals Conference in Melbourne, 12–14 October 2005. The conference provides an annual forum for the exchange of experiences, ideas and views by senior Commonwealth, State and Territory public sector representatives. Discussions occurred around issues such as review of decisions in public sector employment; the range of sanctions available in the public sector; consistency of sanctions within agencies; and consistency of sanctions between agencies.

I have continued to take advantage this year of a number of opportunities to promote my role and functions. I have addressed, at their invitation, several APS agencies, including Comcare, the Australian Bureau of Statistics, the Department of Defence (Defence), the ATO and the Department of Agriculture, Fisheries and Forestry. I have presented at a number of APS development programmes and conferences, as well as to several international delegations, including groups from Korea, Indonesia, Thailand and Kazakhstan, on issues related to the APS Values and Code of Conduct.

On two occasions in 2005–06 I was invited, along with the Group Manager Regional Services, to participate in the ATO people issues Technical Quality Review. This process has its source, in the main, from the Technical Quality Review principles used for the review of the technical work associated with the ATO taxpayer clients. It involves the review of a range of case types, including primary reviews of action, code of conduct, non-attendance, multi-faceted, formal under-performance and Australian Industrial Relations Commission or Human Rights and Equal Opportunity Commission complaints.

The Technical Quality Review process measures the quality of decision making processes, through an assessment of transparency, consistency, integrity and administrative soundness, timeliness, effectiveness, and efficiency. It also measures the quality of decisions, through an assessment of correctness at law and appropriateness to clients’ requirements and circumstances. It is a commendable and transparent process that provides assurance to the ATO that its people processes and decisions are, in the main, robust and of good quality, while at the same time providing information about some areas around the margins where improvements could be made.

This year has seen a greater focus on communication within the Regional Services Group through a new combination of regular meetings. Bi-monthly meetings of the Group Manager and Regional Directors are now held in Canberra. These meetings enable the senior managers in the group to meet face to face to plan and discuss review and other issues of strategic importance. A regular fortnightly phone hook-up with all staff is held to provide the opportunity for the Group Manager to provide feedback to the group on outcomes of the Commission Management Committee meetings, and for the group to talk about other relevant issues.

A meeting of all group employees was also held in Canberra, 20–21 June 2006. This was the first time that all employees have met as a group and it provided a valuable opportunity for the exchange of ideas on a range of issues affecting both the Commission and the group, including issues around managing and performing reviews. In particular, the group was able to consider the implications for the review work of the advice, referred to previously, from AGS on my role.

The final settlement of this advice has also enabled work to commence on the evaluation and revision of the information available on review rights. The focus of this work is on both the material available to APS employees and agencies seeking information on review rights, and also material available within the Commission to support the work of the employees who help me perform my functions. My aim is to ensure that clear and up-to-date information is provided on my functions in ways that best meet the needs of employees, their agencies, and the relevant Commission staff. I expect that this work will be finalised in 2006–07.

My statutory functions also include establishing Independent Selection Advisory Committees (ISACs) and other employment-related functions on a fee-for-service basis. The number of ISACs established in 2005–06 was particularly high compared with the number established in previous years, which suggests a greater recognition by agencies of the many benefits offered by using these Committees.

After my discussions last year with the ATO about the benefits of using ISACs, the Regional Director of our ACT office was invited to participate in Core Design team workshops working on improving recruitment and selections. The ATO Workforce Availability Initiative was instigated to develop and implement innovative recruitment, mobility and promotion approaches and processes.

The report from this initiative identified five fundamental changes that will result in substantive improvement in recruitment, promotion and mobility in the ATO, one of those being the combined use of ISACs and third party recruitment industry providers. Work is continuing with the ATO on the practical application of some of the recommendations from this initiative.

The number of fee-for-service functions, other than ISACs, undertaken in 2005–06 was lower than in 2004–05. The majority of the fee-for-service work undertaken on my behalf for non-APS bodies continued to be selection work undertaken under a memorandum of understanding for the Australian Federal Police (AFP).

Outlook for 2006–07

In 2006–07 I will continue to contribute to the review of the Act. I will also continue to focus on the review and update of information on review rights, and to perform activities associated with education about the review function, including my role and functions. This will include the continuation of activities such as speeches and presentations, which will also assist agency heads in their obligation to promote and uphold the APS Values and to meet the requirements of the Code of Conduct.

I will also focus on the evaluation of timeliness targets for review work with a view to assessing whether revision of these targets is necessary, and how we can more effectively complete review work within any specified timelines.

Signature: Jeff Lamond

Jeff Lamond

October 2006