There were extraordinary scenes in the Senate yesterday when public service boss Phil Gaetjens admitted his probe into the sports rorts affair did not investigate whether Senator Bridget McKenzie had the legal authority to hand out $100 million in grants.
As Crikey has pointed out, Gaetjens is Australia’s most powerful public servant and as Department of Prime Minister and Cabinet (PM&C) secretary, is the very custodian of the integrity of the Australian public service.
But his employment status is also in the hands of one man, Prime Minister Scott Morrison.
By nature of his appointment, Gaetjens is under the direct control of the government in which he’s required to serve. He reports to the prime minister and is therefore part of his core executive.
So while the admission was shocking, legal experts said it was also hardly surprising.
“There’s no notion of independence in that kind of role,” Dr Yee-Fui Ng, Monash University law senior lecturer told Crikey.
“There is this idea that public servants are able to give frank and fearless advice. But the employment structure of the public service has changed over the years.”
Ng said changes to the employment contracts of department heads meant they were no longer as independent as they once were.
“Senior officials no longer have tenure, they are employed on short-term contracts, and their contracts can be terminated by the government at any time,” she said.
“The government can also terminate a secretary without a good reason. So that might create a perception of fear that, ‘I’m not secure if I don’t abide or please the government of the day’. That reduces the level of independence.”
Morrison asked Gaetjens to conduct an inquiry into the sports rorts affair after a scathing report by the Australian National Audit Office (ANAO) revealed McKenzie had run her own assessment process for the grants, favouring marginal Coalition seats.
Under questioning from Labor’s Katy Gallagher in the Senate hearing on Wednesday, Gaetjens revealed that he did not consider whether McKenzie had acted lawfully and claimed it was “not part of the ministerial standards”.
The inquiry also heard that just two people were formally spoken to as part of his investigation. Gaetjens said he had not looked into any role the prime minister or his advisers might have played in deciding where grants were handed out under the scheme.
But experts said the report was doomed from the start and could never deliver a truly independent picture of what happened.
Australian National University emeritus professor Richard Mulgan told the hearing on Thursday that it was “wishful thinking” to expect the head of PM&C to be a champion for the public service.
“It is not a particularly comfortable role for someone who is also driving the government’s program and must be a loyal servant of the prime minister and cabinet,” he said.
“There’s a general tension and conflict of interest in that role.”
Gaetjens’ previous roles as the chief of staff for Morrison and the chief of staff to former treasurer Peter Costello are well known. But Mulgan said even without allegiances to any one party, it was unfair to view the role of PM&C secretary as a pillar of independence.
“I’m not sure they can be the champions of that cause.”