The Canberra Times recently reported on the range of gifts regularly received by government agencies and Australian Public Service staff. Drawing on information disclosed under freedom of information law, the articles listed an extensive array of gifts and hospitality from outside organisations, including tablet computers, bottles of champagne and other expensive wines, and tickets to sporting events.
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Prominent among the recipients was the Defence Department, which recorded gifts from major arms manufacturers as well as the big four consulting firms. But all departments and statutory authorities appear to receive their share of largesse.
The reports, though inevitably brief and selective, raise some important issues. First, if the information was disclosable under FOI, why was it not readily available to the public as a matter of course? Why do we need to wait for increasingly hard-pressed journalists to find the time to ask on our behalf? It is almost a decade since the revision of the FOI Act in 2010 established the Office of the Australian Information Commissioner and declared an official policy of proactive disclosure in the public interest, backed up by the requirement that each agency should establish its own information publication scheme. Openness was supposed to become the default option for the public service, with confidentiality imposed only for sound public-interest reasons.
Instead, secrecy remains the instinctive response of almost every APS bureaucrat. Few voices, if any, are now speaking out for open government, in spite of the Turnbull government's tokenistic support for the Open Government Partnership. The Abbott government's unforgivable gutting of the information commissioner's office inevitably diminished the commissioner's capacity to act as a forceful champion of proactive disclosure.
Quite apart from the consistent application of FOI principles, the case for publicly disclosing gifts to public servants rests on independently strong grounds. Accepting gifts from individuals or organisations that aim to seek favour with government (and what other types of gift-giver are there?) obviously leaves public servants open to the possibility of conflicts of interest, real or apparent. Public servants are expected to act honestly and impartially in all their dealings with the public, but accepting a personal benefit from an interested party could lead to more favourable treatment. Even if the public servant is quite unmoved by any such inducement, the mere appearance or hint of a personal benefit must undermine public confidence in government integrity.
Not all gifts give rise to significant conflicts of interest. Some, such as the offer of a lift from the airport, are too trivial to be worth bothering about. Others, such as gifts from foreign governments, may need to be accepted for fear of causing offence. As with all conflicts of interest, much depends on the circumstances and context. But most agencies have their own general policies on gifts, designed to give guidance in a notoriously grey area. These policies often require a central register of all significant gifts received.
The assumption behind a register is that the act of declaration opens the recipient to scrutiny from whoever has access to the register, typically senior managers in the case of in-house registers. This should act as a constraint on recipients, forcing them to justify their actions to their superiors. If access to the register is extended to the general public, the constraining effect is clearly magnified because public servants and their agencies must now be prepared to defend their receipt of gifts to a sceptical public.
The potential value of public scrutiny is endorsed by the advice the Public Service Commission gives in its guidance on how to manage gifts and benefits. Recognising the complexity of individual circumstances and the need to make situation-based judgments, the commission recommends that a useful test for public servants is to consider how they might answer questions from a parliamentary committee. "If it would be embarrassing, then perhaps the gift or benefit should not be accepted." "The committee test" is the APS equivalent of "the pub test", the term du jour for judging how an action might appear to independent members of the public. For a public servant, if you can't confidently justify something to a select committee, don't do it.
In addition to opening public servants' receipt of gifts up to public inspection, publishing a register could also have a salutary effect on the donors of gifts themselves. Are they willing to have their generosity exposed and their motives subjected to cynical questioning? Would they be so lavish if they knew that inquisitive journalists and opposition staffers could find them out? For example, do Datacom, Energy Australia, Microsoft and Google want everyone to know about the gifts they shower on the regulator, the Australian Competition and Consumer Commission? Transparency is a crucial deterrent to corruption on all sides.
Similar arguments apply to parliamentarians who are obliged to publicly declare their interests, including gifts and benefits received over a certain value ($750 for gifts from official sources, $300 from other sources). This reflects the public's right to know who is offering favours to MPs and the right to judge the extent to which MPs may be subject to conflicts of interest.
Surely the case for disclosure is equally strong for public servants. Indeed, as Informant editor Markus Mannheim pointed out in last month's issue, many public servants have much wider responsibility for spending government funds and making government appointments than MPs (other than ministers). Why are their gifts of wine and tickets to football finals not as publicised as those of backbench MPs? In these days of electronic publication, if the information is already available on internal agency registers, it could readily be made open to the public as well.
While internal agency registers appear to be common practice, they are not universal. Some agencies devolve the management and recording of gifts and benefits to individual divisions or business units, while others have no register at all. If publication were to be mandated, then every agency would be required to operate a gift and benefit register. Leadership would need to come either from the Public Service Commission or from politicians. The commission gives sensible general guidance on gifts and benefits as part of its discussion of conflict of interest. But, as with conflicts of interest as a whole, it is content to leave policymaking to individual agencies, falling back on the difficulty of imposing rules in such a complex area. The commission displays little sense of urgency in dealing with such an obvious threat to public service integrity.
So far, politicians have taken no interest in forcing public servants to reveal any aspects of conflicts of interest, including the receipt of gifts. For now, any political impetus on government integrity, such as it is, seems more concerned with the misdemeanours of politicians and political parties than those of public servants, and is largely focused on establishing a federal independent commission against corruption.
In the long run, perhaps, a federal ICAC could be the best hope for reform. Recent experience in Tasmania certainly suggests so. In 2015, the state Integrity Commission, on its own initiative, reported on policies, practices and procedures relating to receiving and declaring gifts in the Tasmanian public service. It found systematic failures to manage the receipt of gifts with sufficient caution, particularly in high-risk areas such as asset management and procurement. It recommended a service-wide policy that the default position for public servants should be to decline all gift and benefits.
In response, the head of the Tasmanian public service, Greg Johannes, saw the report as an attack on public servants' integrity and tried, unsuccessfully, to suppress it. The Premier, Will Hodgman, was equally defensive, rejecting any suggestion of a "no gifts" policy. However, the government did agree to develop a service-wide policy, which was announced a year later. The policy says public servants should not expect to receive gifts or benefits in the course of their duties and should never accept any if there is a possibility of conflict of interest or when they are buying for the government. The policy also requires all declared gifts, benefits and hospitality to be transparently disclosed. Overall, Tasmania has provided a good model for other jurisdictions to follow.
In the meantime, at the Commonwealth level, public service secrecy remains unchallenged.
Richard Mulgan is an emeritus professor at the Australian National University's Crawford school of public policy. richard.mulgan@anu.edu.au
