Working with ministers

take an evidence based and test driven approach to leveraging both as needed. Most legislation/regulation domains benefit from a combination of prescriptive and principle based rules. Below is a high level mental model for the benefits and challenges of each, and when to use: PRINCIPLES PRESCRIPTIONS Best used… Where judgement is important. Where consistency is important. Benefits Can be useful where there is ambiguity, enables flexibility in implementation. Cheaper and easier to implement (particularly if there is a reference implementation). Challenges Expensive, slow and inconsistent in implementation. Favours incumbents and large, well funded organisations. Can be limiting where in domains where there is continuous change. Assurance Hard to assure as highly interpretive. Assurance can be supported by case studies and reference scenarios. Easier to assure, as conditional compliance should be clearer. Assurance can be supported by prescriptive scenarios with expected results and a reference implementation. Examples (illustrative only) Regulated entities need to report on a best effort basis. Regulated entities need to report all transactions over $10,000.00 Applicants must have been in the country for 5 years, must have no criminal convictions, and must not have travelled to a prohibited country within 5 years of the date of application. Working with ministers Working with ministers and their staff can be quite daunting for public servants, and it is important to ensure you are engaging appropriately so as to maintain balance and integrity, not just for yourself, but for the program, your public institution, and to maintain public trust, confidence and perceived legitimacy of the public sector more broadly. There are no shortcuts or cheat codes for this. The discomfort of serving your minister as well as serving the broader public (and parliament) is part of your job as a public servant, one that you and others will have to maintain as ministers change over time. So the starting point is to realise that you don’t just serve a minister. You don’t just serve the public either. You serve your mandate: that is, the legal and constitutional authorities and accountabilities delegated to your department. This isn’t to say you shouldn’t have a good relationship with your minister and their office. Public servants should strive to understand, anticipate and engage with their minister(s) and ministerial staff, but should do so from a perspective of enthusiastic, confident professional partnership and mutual respect, not one of passive subservience. It is in maintaining a professional relationship grounded by an approach of long term stewardship and advocacy of values and evidence-based public good, that this relationship can maintain the balance and integrity required for trustworthy and sustainably good public administration. Below is some guidance to best understanding, working with and maintaining a balanced and professional relationship with your minister and their office. Understand the relevant ministerial and departmental authorities and context The most important framework that should define your relationship with your minister(s) starts with Foundational Policy. In Foundational Policy, you should be able to identify what legal authorities sit with the department and what sits with the minister or any other policy actor(s). This activity is benefited by the assistance of your legal team, policy experts and with constitutional and legislative expertise from outside your department, drawing from any relevant case law and from independent academic expertise. Independent views are important in this mix so you don’t unintentionally become too influenced by any of the many motivations from different actors in your space. There are two areas of Foundational Policy to consider:

• Whole of government Foundational Policies—including the constitutional delegations of authority and separations of power, whole of government policies like privacy, procurement, regulations

(in the Australian Government this includes the Australian Constitution, the Public Service Act, the Privacy Act, the Public Governance, Performance and Accountability Act).

• Portfolio or domain specific Foundational Policies—most departments will be a range of legislation and/or regulations that they are responsible for, which provides context, authorities, accountabilities, delegation of decision making and more. Often (but not always), there will be specific responsibilities allocated to a minister (such as decision making on a special visa) and specific responsibilities allocated to a secretary/department Head. Either of these can formally delegate responsibilities through other instruments, so you need to be aware of any further formal delegations beyond the portfolio legislation/regulation. Every portfolio will have a range of legislation and regulations that define both the whole of jurisdiction and the portfolio specific role and authorities of the minister(s) you work with. Of course, if you have already established a pattern for how you work with your current minister, you may find it hard to change this pattern until there is some extrinsic opportunity to do so. Changes in government or a new minister provides an opportunity to reset your relationship and realign it to your actual authorities. Of course, your minister will have their own ideas on how they should work with you, but part of your job as a responsible public servant and steward is to be clear and consistent in how the relationship best works, and it is important to advise (and hold the line) for where where accountabilities are clearly defined. Be proactive, mission oriented and innovative While it is true that there are always some ministers who have little regard for public servants or the public sector writ large, the best thing you can do to build their confidence is to be proactive, bring your ideas, insights, evidence and innovative approaches to the table. If they don’t want to hear them, you have at least demonstrated you are capable, and might open up meaningful discussion and opportunities to better drive policy and public outcomes.

Most ministers will understand that there is deep expertise and policy experience in the departments of their portfolio, so consider how you can demonstrate that expertise and experience. Bring experts from your department to meet with the minister and their staff for deep policy and program discussions and exploration of what is possible. Establish and foster long term engagement with experts and experience from outside your department to bring into policymaking and ministerial engagements, demonstrating your value as part of society, not separate to it. Use your delegated authority and departmental budget to innovate, experiment, engage and to deliver test-driven solutions where you have authority, or to bring to the minister where they have authority or where they are the pathway to authority. The more proactive you are in delivering on your mandate and the Foundational and Operational Policies you have carriage of, the more you will build trust and confidence in the minister’s office. If you are dealing with a genuinely aggressive or undermining minister or ministerial office, remember to not simply give up your authority, because what might be a little easier today will create ripples into the future. There will always be ministers (and advisors) who want to assume more authority than they should, or who genuinely misunderstand (or don’t care) about maintaining a healthy (and lawful) balance of authority. Hold your space, calmly, professionally, confidently, and support your minister the best you can without undermining your role or legally delegated authorities as a public servant, nor the integrity or trustworthiness of your public institution. Finally, you should be always leaning in to your authorities to deliver policy outcomes and public value. Innovation isn’t a business case, it should be your “business as usual”, with all programs having a little capacity to continuously explore, improve and optimise the program and policy settings for better outcomes. You should not need (nor seek) ministerial permission for what is in your authority. You can certainly inform or engage with the minister and their office, but once you start abdicating your authorities and delegated decision making to the minister, you start to lose the critical balance which is necessary for a high integrity, highly effective and highly trusted public institution.

Actively serve the government of the day, the parliament and the people As a public servant, you sometimes (often!) feel like you are being pulled in different directions. On the one hand this is normal, as public servants serve many purposes and changing leadership over time, but this makes it incredibly important to find ways to maintain your professional and personal balance, so you can confidently exercise your authorities and sustainably navigate these pressures with stewardship, always bending the arc of policy towards public good. Beyond your mandate, there is a useful balance found in intentionally striving to equally serve three masters of the public sector: the government, the parliament, and the people. This framing is explicit in the Public Service Act of the Australian Government, however the approach is equally applicable to many public sectors, including state, territory and local governments. When you work in the public sector, it can be challenging to pursue genuine “good” in the face of high pressure expediency. Evidence driven approaches—like service/system design, holistic or future policy proposals, science, or data analytics—can be hard to sustain in the face of top down directives unless there is a clear process, demand and support for what is actually needed and what actually works (especially if the evidence is in conflict with the direction given). In the case of public sectors, the stakes and pressures are especially high because many people are affected by good or bad work, and high pressure expediency could be from budget changes, politics, habitual reactivism or a genuine crisis. So, how can you maintain enough balance to provide a solid foundation for sustainably achieving “good” outcomes when undertaking public service? We often hear about the importance of an apolitical public sector, but what does that mean day to day—and what do you need for yourself to be comfortable performing that role?

Who are the three masters? The Public Service Act 1999 laid out as its first main objective “to establish an apolitical public service that is efficient and effective in serving the Government, the Parliament and the Australian public”. This bold objective provides the basis for a mental model that can help public servants maintain the balance needed to deliver sustained and long term policy outcomes and public good, while maintaining trust with all parties in the face of high pressure work environments and constant change. Even in public sectors that don’t codify this concept, it is still a healthy model to apply. Although the articulation of these three masters became less obvious in subsequent public sector legislation in Australia, it remains front andcentre on the APSC Integrity and Code of Conduct information. This mindset makes it possible to always bring the work of public servants back to a purpose driven and balanced approach. One that serves the government of the day (after all, they are our elected representatives), but does not do so blindly or at the cost of oversight or the public good, while maintaining the confidence and support of the broader parliamentary system. If we were to consider these three masters like the legs of a stool, then we are most stable when we have equal pressure and responsiveness to all three. Many of the challenges we face in public sectors today trace back to that balance at various times being too skewed towards any one leg at the cost of the other two. How do we best serve all three Public servants can best serve the government by taking the time to understand the government intentions and provide frank, fearless and evidence based advice on all options, including discussion on what is desirable, legal, technically feasible and socially/economically viable. Most ministers are interested in ideas, expertise and the realities faced, particularly when trying to implement their policies or ideas. They also want to hear about new challenges and opportunities, which are often most obvious at the coalface of service delivery, regulation or policy development. They want to know risks and “bad” news so they have a chance to do something about it. And they certainly want to know about associated costs. Proactiveness is both necessary and appropriate which requires the confidence to look ahead and develop new policy options and to innovate where there is delegated policy authority to meet future challenges and opportunities, ideally engaged with the public. There is an important role for the public service to provide a trusted and apolitical voice in the public domain. There is also a significant amount of public sector work and efforts where the direction is defined by legislation, the constitution, case law, international crises, emergency response efforts or indeed, by the needs and values of the communities we serve. This means even just on any given day, there is an active balancing act required to conduct our work. Whilst there is great scope for innovation and ground up proposals from the public sector, public servants don’t have unfettered rights to divert their effort away from their institutional mandate or ministerial directions that have been reasonably and lawfully given to them. At the same time, the majority of the work of public sectors is usually not affected by changing government policies, as there is so much established in legislation, the constitution or existing operations, so there is a lot of scope to apply an innovative, evidence based and values driven approach to the work, accountable to, but less affected by, changing policy landscapes. So public servants should also not feel they can’t do ANYTHING without the say so of their minister. Indeed, it is in day to day implementation and administration of our public sectors that there is great scope for further evidence-driven approaches, apolitical balance, innovation and participatory approaches. In public sectors you often hear people talk about the “front page test” whereby people are encouraged to consider how their actions would look on the front page of the news. We have often seen this applied through purely a political lens rather than a public good lens, as there is sometimes more pressure to not embarrass a minister than there is to genuinely address the challenge. When the heads of departments are perceived as political appointees, this can erode practical and cooperative apolitical engagement with parliamentary processes and with the public. So serving the government must be continually balanced and not perceived or actually at the cost of serving the public and Parliament.

Public servants can best serve the parliament in two key ways: 1) by embracing the usefulness of parliamentary oversight; and 2) by engaging with the parliament as the “doing” arm of the legislature. For oversight, public officials need to be able to justify to the parliament (through Senate Estimates, committees and other parliamentary oversight mechanisms) how a policy or program was implemented, what advice was given, the outcomes and how money was spent. As for the legislature, the parliament is responsible for debating, improving and assuring all new legislation and laws, so the public sector can assist with providing appropriate facts, modelling tools, evidence, statistics and options to support the best possible legislative outcomes. Of course, sometimes these responsibilities can be subjected to political theatre, but there are important points of intersection between the public sector and parliament and it is the job of public servants to occupy this space calmly, professionally and from a balanced position of evidence, to always help ensure the best public outcome prevails. It is also important to be confident in presenting facts to the parliament and oversight mechanisms (like Senate Estimates, Parliamentary Inquiries or Royal Commissions). It is not appropriate for public servants to comment on Political Policy, but they are expected to confidently comment on Foundational, Operational and International Policies, and to also clearly and openly represent how they are implementing (and advising) on Political Policy. Just to be clear, best public outcomes are not necessarily the same as the outcome desired by the minister, the public institution or the individual public servant. It is helpful to instead focus on evidence based and measurable public outcomes from different perspectives, ideally taking into account the diversity of needs across the community. Finally, public servants can best serve the Australian public by engaging the community in developing user-centred or test driven policy options, for designing better services, identifying social/economic interventions, or myriad other opportunities to engage people in developing the services and laws they rely on. Equally important to serving the community is proactively being accountable to the Australian people and ensuring the best possible public good is a helpful lens to apply to all public sector work. Forget the front page test, how would your mum, dad or grandma feel about it? How will future generations assess it and can you defend it and on what grounds? How can you engage the public throughout to ensure their expertise, experience and expectations are part of the process? How can you work in the open, so that you are always inviting peer review, feedback and participation in the process? Expanding “us” to all three masters Another part of this mental model is to actively consider all three “masters” as necessary and helpful (in different and sometimes challenging ways) to ensuring the best work and outcomes from the public sector. When it is framed, even subtly, as “the minister and us” versus the world, things can fall out of balance. We suggest that genuinely seeing the parliament and Australian public as partners in the work of the public sector naturally leads to better outcomes, engagement, openness, peer review, robustness and a better balance for maintaining a values driven and evidence based approach. If all public servants were to at least consider the government, the parliament and the Australian public as our three genuine masters that we should try to serve in as balanced a way as possible, it provides three (3) key benefits:

1. a helpful internal balance against becoming either politicised or rebellious, which provides a stronger and more sustainable foundation upon which we can serve all three without being perceived as swinging any way at the cost of the othe,rs
2. a greater perception (from all three masters) of being the trusted, professional, expert, apolitical, evidence based and values drive voice in the room, which grows trust in government services, law, regulation and legislation
3. a naturally more robust basis for engagement with a greater breadth of skills, expertise and experience to draw into the important work of policy and legislation, regulation, taxation, service delivery and other critical functions of the public sector.