When nothing’s wrong: the decline and fall of public sector ethics

St Thomas Aquinas, the medieval scholar and theologian, did not write about public administration, but he had important insights about the differences between two types of wrongdoing: sins of commission (doing the wrong thing) and sins of omission (allowing evil to occur by failing to do the right thing).

Normally, we think of a sin of commission as worse than omission because it involves a conscious decision to do wrong. But that is not always the case. If we notice that our neighbours’ unattended barbecue threatens to burn down their house, what would be worse: failing to warn them, or stealing a sausage from the resulting conflagration? The nature of the crime depends on the circumstances; in some cases a failure to do the right thing might be much worse than a minor sin of commission. This applies particularly if we are aware of what the right thing is, and choose not to do it.

From Aquinas onwards, there has been a general consensus on this point – omission can, in some circumstances, be just as serious as commission. But public service systems based on rules and procedures focus far more on wrong actions than on inaction.

One of the values in the Public Service Act 1999 is that the APS ‘‘has the highest ethical standards’’. But what exactly this means is open to interpretation, and the guidance material rather thin. According to the Australian Public Service Commission website, some eight years after the passage of the Act it still ‘‘is proposing [my emphasis] to develop a toolkit to guide all APS employees, particularly managers, on workplace discussion on values and ethics’’.

This contrasts with other jurisdictions such as Victoria, where the State Services Authority has extensive guidance, toolkits and a framework on ethics that it actively promulgates. Structurally, Victoria has an independent Public Sector Standards Commissioner whose role specifically is to promote high standards of integrity and conduct. The commissioner does this in a positive rather than reactive manner, seeking to ensure not just avoidance of doing wrong but an active approach to ethics. In the APS, the evidence from investigations of ethical matters to date is that a more legalistic approach tends to prevail.

Canberra Times journalist Markus Mannheim has been examining the case of Peter Ellis, a former AusAID official who considers he was discriminated against because he refused to tell a lie about why an East Timorese non-government organisation had its Australian aid funding withdrawn. AusAID subsequently confirmed to a Senate committee that the reason was that the organisation concerned had criticised Australia. Ellis claims he was told to dissemble about the reason, and suggest it was due to a number of different factors. Ellis, who is no longer with the APS, believed this was not ethical, refused to do it, and has since raised the issue with both his department and the Public Service Commission.

The investigation by the commission apparently found insufficient evidence on which to base a conclusion that Ellis was told to lie. We need to be careful here: this is not the same as finding that the event did not happen. All it is saying is that there is not enough proof. In any case where that sort of evidentiary test is applied, the party with the power in the relationship (in this case, both AusAID and the Department of Foreign Affairs and Trade) tends to win out. A lack of evidence privileges the status quo, and always favours the large and powerful by allowing their version of events to stand.

The Government itself has set the example here. Over the course of the present Government, standards of ministerial responsibility have been allowed to decline from the high bar it set when first elected. By the time of the post-2001 election period, the standard had become that you could get over the line provided the Australian Federal Police could find insufficient evidence to prosecute (an issue in relation to appointment of a particular minister at the time). This amounts to applying the criminal standard of proof (evidence ‘‘beyond reasonable doubt’’) rather than the civil standard (‘‘on the balance of probabilities’’) to alleged problems of ministerial conduct.

Governments can also do questionable things – instruct public servants to produce a socalled ‘‘mid-year’’ economic and fiscal outlook three months earlier than scheduled (as it did last month) or to appear in highly controversial government advertisements (as it did the month before). At present, in the absence of any independent body with powers to make determinations on public-sector ethics, these pass the test of being ethical almost by default.

A lingering lesson for the APS is the experience of the lead-up to the 2001 election. Former Public Service Commissioner Andrew Podger has said, ‘‘I do not believe the ‘children overboard’ case was the service’s finest hour. Whatever the circumstances in the lead-up to the election – and I am still uncomfortable with what happened over that period – the reluctance by officials to face up to the facts over the subsequent months is extremely difficult to defend.’’ These remarks were not welcomed at the time, but continue to resonate. It is not just the ‘‘children overboard’’ claim; we should never forget that 353 people died when an overloaded boat, the SIEV X, was lost at sea while trying to reach Australia. There is still an air of denial about the ethical implications of the case, and reluctance by the public service to face up to and deal with these implications.

In the Ellis case, there does not seem to have been any investigation of the underlying ethical basis of the dispute – whether or not it is justifiable to mislead another organisation in pursuit of government interests. This is by no means an easy question; public servants always make choices about how much information to provide to others, whether in Senate estimates hearings, briefings to ministers or advice to external stakeholders. Omission or selection of facts may be due to limitations of space, time or complexity, rather than a desire to mislead. When an omission turns into an untruth is very hard to determine, and not the sort of thing that a legal process is good at dealing with.

Ethical dilemmas rarely arise in relation to proposals for government actions, policies or programs that are obviously against the law. Public servants have a duty to advise ministers on the law, and to ensure that any program they implement is legal.

In the same fashion, bribery, fraud or other criminal activities are clearly in breach of ethical values. There may be a case for better investigation of such matters: late last month NSW Premier Morris Iemma was reported as telling an anti-corruption conference, ‘‘Any jurisdiction that doesn’t have its own ICACtype body is just crazy . . . If you don’t have one, you have either discovered a secret to human nature that has eluded the rest of us, or – as is more likely to be the case – you are kidding yourselves.’’

Even so, this is an issue about the mechanisms for investigation, not a doubt over the basic principle that corruption is unethical. Where publicsector ethics become complicated is when public servants conceal information or become aware of a problem and do nothing about it.

One of the best accounts of public sector (and broader) ethical issues is in Hannah Arendt’s Eichmann in Jerusalem: A Report on the Banality of Evil. Her key observation was not that Eichmann, a Nazi war criminal, was monstrous, but that ‘‘the trouble with Eichmann was precisely that so many were like him, and that the many were neither perverted nor sadistic, that they were, and still are, terribly and terrifyingly normal’’. It is worth remembering that Eichmann had been acting within the laws and government policies that applied at the time.