The Department of Prime Minister and Cabinet is fairly clear in its guidelines on caretaker conventions applying to the public service once Parliament is dissolved. “Officials need to exercise judgment if they are scheduled to speak at public functions during the caretaker period.  In the case of controversial issues, officials should decline invitations to speak.”

The head of NBN Co, Ziggy Switkowski, most certainly “spoke” on a controversial issue when he published a piece in the Fairfax press defending NBN Co’s pursuit, using the Australian Federal Police, of whistleblowers who had revealed major failings by the company. That pursuit resulted on extraordinary raids by the AFP on Labor’s Stephen Conroy and Labor staff.

Switkowski’s justification for his pursuit of whistleblowers is part of what Crikey has previously shown to be a dedicated campaign by governments — and especially the current Coalition government — against whistleblowers, often using national security as an excuse. But his article was no simple breach of caretaker conventions. PM&C notes about the rules “their application in individual cases requires judgment and common sense. The Department of the Prime Minister and Cabinet (PM&C) is able to provide information and advice to agencies, but responsibility for observing the conventions ultimately rests with agency heads.”

That is, Switkowski is specifically charged with responsibility for observing the conventions. As chair of NBN Co, he, along with his CEO, is required to enforce the conventions. He is required to set the standard for his staff. He is required to be the exemplar and to apply his judgement to ensure that his staff observe the rules. Nor is Switkowski a public service neophyte. He was CEO of Telstra while it was a majority-owned government company, for five years.

Instead, Switkowski deliberately breached the conventions. We know it was deliberate because the head of PM&C, Dr Martin Parkinson, investigated the circumstances in which the article was published and learnt that NBN Co’s portfolio department, Communications, had expressly told him that the article would breach caretaker conventions. Communications complied fully with the conventions — the department contacted PM&C and asked for advice on the article. PM&C said that the article breached the conventions. Communications “strongly” conveyed those views to NBN Co, and noted they applied to the chairman every bit as much as anyone else in the agency.

The word “strongly” in Parkinson’s letter is significant. Such adverbs aren’t included randomly by senior public servants; their inclusion is meant to convey a message. The word suggests that Communications bureaucrats repeatedly, or forcefully, or both, advised NBN Co they were breaching caretaker. Still, Switkowski went ahead and deliberately breached the conventions.

It’s by far the most egregious breach of caretaker I can recall, notwithstanding Switkowski’s laughable “staff morale” excuse. I’ve seen junior officers overly excitedly respond to requests from minister’s offices during campaigns and get chipped for it. I’ve seen departmental secretaries regretfully ring the shadow minister to explain that someone screwed up and might have inadvertently committed a minor breach of the conventions. I’ve never heard of an agency head deliberately ignoring a PM&C warning and breaching them.

The conventions, however, have no legal force. They “are neither legally binding nor hard and fast rules,” PM&C tells agencies. There are no repercussions for Switkowski. That’s exactly why he has to resign, or be dismissed by the government. If there are not serious consequences for deliberately breaching caretaker conventions, they become a dead letter. In future, agency heads will be able to rely on the precedent of Switkowski deliberately and egregiously breaching conventions to justify assisting one side or another during an election campaign.

The return of Parkinson to the public service was meant to be, in part, a signal by Malcolm Turnbull that the relentless politicisation of the public service under the Abbott government was over. A failure to punish Switkowski would not merely undo that, it would enable partisanship and politicisation at the highest levels of the APS, and take us ever closer to a wholly political Washington-style public service. Unless anyone think that’s a good outcome, Switkowski needs to go, and go now.

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Peter Fray
Peter Fray
Editor-in-chief of Crikey
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