AustLII Home | Databases | WorldLII | Search | Feedback

Australian Law Reform Commission - Reform Journal

You are here:  AustLII >> Databases >> Australian Law Reform Commission - Reform Journal >> 1998 >> [1998] ALRCRefJl 7

Database Search | Name Search | Recent Articles | Noteup | LawCite | Author Info | Download | Help

Uhr, John --- "Getting Real About Ethics in Government" [1998] ALRCRefJl 7; (1998) 72 Australian Law Reform Commission Reform Journal 30


Reform Issue 72 Autumn 1998
This article appeared on pages 30 – 33 & 75 of the original journal.

Getting Real About Ethics in Government

Traditionally, public administration has celebrated an ethic of compliance with due process. Good public officials were meant to abide by an ethic of procedural fairness, without prejudice to the outcomes of interested parties. But Dr John Uhr* writes, a recent Organisation for Economic Cooperation and Development (OECD) conference1 focusing on ethics in the public sector shows a trend to what has become known as ‘new managerialism’ - or more ambitiously as ‘the new public management’ (NPM).

Advocates of NPM contend that the new managerialism is destined to replace traditional or ‘old public administration’, which focused predominantly on structure and process as though they were ends in themselves, rather than means for effecting law and public policy. In the name of results-oriented public management, NPM elevates a new entrepreneurial ethic of achievement, which can differ markedly from the traditional ethic of compliance with due process. The traditionalist public servant justifies his or her official conduct as consistent with authorised procedures. The NPM officer justifies his or her conduct according to whether it delivers the desired results.

Traditionalists respond that the ethic of due process is itself a valued ‘result’: an end and not simply a means of convenience. Proponents of NPM reply that the traditional ethic serves the interests of bureaucrats ahead of citizens, who are seen as clients demanding individualised results and not the standardised processes celebrated in traditional administrative ethics.

The international debate over NPM has provided the OECD with an opportunity to identify the place of ethics within contemporary governance. The recent turn to ethics can be seen in such Public Management Service (PUMA) reports as that of 1996, entitled Ethics in the Public Service, which is a useful survey of international practices. Also relevant is the associated PUMA 1997 ‘policy brief’ Managing Government Ethics. This very title conveys the nervousness about ethics in government: a narrow managerial approach suggests putting ethics on a short leash of tightly managed ethics, while an openly ethical approach searches for managerial frameworks supportive of ethical government.

Both approaches to ethics in government have their supporters across OECD countries. In my view, ‘getting real’ about ethics in government means promoting the ethical management of government, as distinct from the managerial government of ethics, which is quite different, but, alas, quite common. The latest OECD developments can help us here. Four questions examined in a PUMA issues paper,2 provide a convenient framework for those who want to ‘get real’ about the prospects for ethical government, starting where it counts; with the values of the public service.

What are the basic ethical values required by a modern public service?

Around the world, governments are rewriting their public service legislation to include ‘values statements’ declaring the core values on which public service rests. The Howard government’s 1997 Public Service Bill is one of those Bills which did not pass parliament because of the government’s refusal to accept Senate amendments. Interestingly, significant opposition to the Bill focused on the new charter of public service values (see Canberra Bulletin of Public Administration, December 1997, pp 13-100).

The Australian situation is a local example of a more general problem. To my mind, a leading priority is the challenge to find greater balance between general declarations of core public service values and specific adaptations of particular values by discrete public agencies. While the government puts the Public Service Bill to one side, specific government agencies are getting on with the job of clarifying their mission and ethos. For instance, in November 1995 the Attorney-General’s Legal Practice published its Guidelines on our Values, Ethics and Conduct, which provided a practical focus on ethics in government for government legal officers and their clients, despite the quibbles of external commentators (see John Uhr, ‘Core Values or Core Business?’, Canberra Bulletin of Public Administration, February 1996, 5-7).

This bottom-up approach is as it should be. We can spend forever trying to get right the wording of system-wide declarations of public service values. The more pressing task is to devise agency-specific declarations of ethical values for the benefit of agency employees, but also for the public doing business with those agencies. I have no opposition to service-wide declarations of common purpose and principle. My point is that the emerging and more challenging task is to give content to what I call ‘the ethics of agency’. This term refers to the twin roots of public sector ethics. The first is in the fundamental theory of the public official as an agent rather than a principal of the sovereign public. The second is in the everyday practice of officials performing their duties in specific public organisations or agencies, each with its distinctive charter of public responsibilities established in law and public policy. Public agencies (call them departments, ministries, bureaux or whatever) will perform most effectively when their employees and the interested public are agreed on the principles and norms appropriate to the agency’s management of its public responsibilities. The inclusion of charters of client rights and institutional responsibilities in federal legislation on nursing homes is a good example.

This task of devising agency-specific ethical guidelines is doubly urgent now, when so much public business is being contracted out to alternative service providers. Government agencies that are parties to these contracted services have obligations to try to model the sorts of ethical responsibilities that the public can reasonably expect of government in monitoring the administrative qualities of new service providers. For instance, federal employment and social security officials face a challenging responsibility when it comes to assessing the performance of Centrelink, the new ‘service delivery agency’ established to deliver a wide range of public services on behalf of the government.

Alternative service providers like Centrelink can provide opportunities to rekindle the ethic of public service. It would be a great stimulus to the ‘ethics of agency’ if such contracted public authorities were actively assisted to produce appropriate models of ethical administrative practice. System-wide declarations are good as far as they go, but they are surprisingly limited. In itself, rewriting the Public Service Act does little to right the ethics of the public service. The community rightly wants reassurance on the links between pious words on paper about ethical values, and improved ethical performance down the line where public service actually meets the public.

How appropriate is the traditional ethos of public service to contemporary public services?

I think that we should face the facts and admit that the traditional ethos of public service, or at least the traditional bureaucratic form of that ethos, is passing. Personally, I am something of a traditionalist and openly pay my respects to the impressive achievements of government bureaucracies. At their best, government bureaucracies have been meritocracies. At their worst, they have been pedantocracies to use the term coined by 19th century philosopher and political economist John Stuart Mill when referring to the public bureaucracies that often pride themselves on their ‘rule by the book’, even to the point of allowing rule by the letter to squash the spirit of the law.

But if the old world of state bureaucracy is passing, the new world has yet to take definitive form. The infatuation with public sector ethics now common across OECD member countries can be a form of ‘whistling in the dark’, designed to reassure ourselves that we are really in control of events. I suspect that the greater attention our political communities pay to public sector ethics, then the greater will be the repair work that falls to the frequently maligned institutions of public accountability - such as administrative review bodies, parliamentary committees, external audit bodies, ombudsman offices, not to mention the Courts.

The experience of the Commonwealth government is a good example. The Howard government has experienced a bad case of ethics inflation, which began with well-intentioned attempts when it was first elected in 1996 to demonstrate its commitment to the highest ethical standards. The cycle began with the Prime Minister’s talking up of ministerial ethics when in opposition, progressed through the publication of his ministerial code of ethics soon after the election, followed by the testing experience of a series of ministerial resignations surrounding allegations of breaches of this ministerial code, and culminating (thus far) with the special inquiries of the Australian National Audit Office (ANAO) into procedures for giving effect to the declarations of ethics in government. One lesson from this experience is that our capacity to manage public sector ethics lags well behind our ability to raise public expectations about higher ethical standards.

The public is cynical enough already. But when we talk up ethics, we should acknowledge the great risk of feeding public cynicism. Actions speak louder than words, and the actions of government frequently fall short of the proclaimed values. The public will rightly expect that when the inevitable disputes arise about unethical conduct (by ministers, by their bureaucratic officials or by contract service providers under the supervision of a public authority), governments will call in the appropriate accountability agencies to test levels of real conduct against proclaimed standards. Indeed, our political systems have accountability institutions and review mechanisms which are on the lookout for new business in the new era of devolved public management. We do not want the blunt instruments of accountability to drive out the sharper but untested instruments of ethics emerging as components of an ‘ethics infrastructure’. The best strategy is to recognise the partnership between ethics and accountability, and to work at ways of perfecting that partnership.

What ethical problems emerge from results-oriented public management?

Let me give one important illustration of the type of challenges facing public servants. It concerns an area of public business which rarely attracts widespread attention, yet it is one close to the heart of many government officials. I refer to the core business of policy advising, performed by officials who have the ear of ministers and decision makers in government.

This is no idle academic matter. Indeed, lost in the parliamentary debate over the 1997 Public Service Bill was a fascinating but unresolved debate over the end value of impartial advice from public officials to ministers, and over the appropriate means for protecting ‘frank and fearless advice’ in the event that this (and not, for example, ‘timely advice’ as favoured by the government) is among the core values thought desirable for public officials (see Canberra Bulletin of Public Administration, December 1997, pp 25-7, 31-9, 43-4, 54-5, 75).

No amount of deadening rhetoric about ‘the value of results’ will drive out the hidden value of process, especially when it comes to policy advising. And here there is an interesting paradox. The more we strive to ‘manage by results’ the greater is the public interest in the ethics of policy advising. For instance, who within the former federal Department of Administrative Services advised the ministry about the weaknesses of its ministerial travel arrangements? And what advice did the Prime Minister’s own department provide about the strengths and weaknesses of the Howard ministerial code?

The activity of policy advising covers the whole field, from the bureaucratic management of internal policy advising functions through to the management of external consultation and community advisory processes, as became evident in the so-called ‘Sports Rorts’ affair of 1994, which sank former Keating government minister, Ros Kelly.

The public and political interest in the norms of conduct of policy advising is not what was originally intended by many of the architects of the new public management. But it could have been foreseen. The more we tell our public officials to ‘manage for results’ and not to hide behind bureaucratic rules and rigidities, then the more we invite political and public scrutiny of the spirit in which public business is done. All it takes is a public controversy over some debatable policy ‘result’. It could be the construction of a new facility or the establishment of a new pilot program, or the imposition of new eligibility criteria for a benefits scheme: such as a good policy idea which sadly produces adverse impacts, or a new government contract which is implemented without due care for the interest of all stakeholders. Then the call goes out to discover who was responsible for the policy proposal, and who was responsible for evaluating its means of implementation and advising government about remedial measures. The questions then asked include ethical ones about the competency and wider sense of social responsibility of those managing the advisory process and its inevitable ‘risk management’ trade offs.

The point is that social debate over the merits of policy and program results will encourage political investigation of the ethical perspectives of policy designers and evaluators. We cannot turn back the clock against the trend to risk management, but we can begin to work towards better systems for integrating ethical considerations into public decision making. And we can do more to prepare officials for searching public inquiries into the ethical dimensions of risk management, including policy advice about acceptable and unacceptable ‘results’ in the management of public business.

What can governments do to incorporate ethics into public decision making?

The fourth and final question raises the most difficult and challenging issues of all. Public sector ethics is a political as well as an administrative issue. Any ‘ethics infrastructure’ will be seriously incomplete if we ignore the ethics of elected officials. Elected officials hold the key to unlocking so much of public sector ethics. Consider just two obvious aspects, first, elected officials comprise the political executive responsible for the initiation and energy of the whole policy process. Second, elected officials also comprise the leading edge of public accountability through their involvement in parliamentary inquiries into public administration and their capacity to marshal the forces of professionalism among the specialist agencies of accountability such as national audit bodies.

The public has a right to know more about the ethical standards appropriate to this axis of accountability, with the political executive at one end and bureaucratic officials responsible for accountability at the other end. An effective ethics regime or ethics infrastructure needs to be able to draw upon models of best practice in the ethical management of public accountability. Without such models of best practice, we leave our external audit officials vulnerable to political abuse, as they struggle to construct feasible models of ethically responsible public management.

This is not their job, or at least, not solely their job. We can help by keeping elected officials in the ring with their own sets of responsibility to play their appropriate part in framing an effective ethics regime. After all, ethics is a very public business. Public servants will work best when their political masters are seen by all to be working for the public.

* Dr John Uhr is with the Australian National University’s Public Policy Program and the author of Deliberative Democracy in Australia, Cambridge University Press 1998.

These comments were originally prepared as opening remarks for the OECD conference, referred to in the end-notes. This paper presents a simplified version of four questions, posed in a PUMA Issues Paper released before the conference.

End-notes

1. The conference, held in November 1997, was organised by the Public Management Service (PUMA), the OECD’s specialist group on governance. Further details about the conference and related developments are available through the PUMA website at: http://www.oecd.org/puma/

2. The paper, released before the November OECD conference, is now being revised for publication as part of an Ethics Checklist, to serve as a guide for governments attempting to establish or strengthen an ethics regime or infrastructure.


AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.austlii.edu.au/au/journals/ALRCRefJl/1998/7.html