Lesson Five – The Policy Cycle

Influencing the Public Service

Introduction

In our previous lessons we learned that sovereignty does not reside in the people but in the Parliament.

We learned that the Australian colonies federated to become a country and for that reason we have two houses in the Federal Parliament. The Lower House or ‘House of Representatives’ is based on electorates with equal numbers of people in them, and the Senate has equal numbers representing each State.

We learned that government is Cabinet and Cabinet governs largely by directing the Public Service.

We also followed the career path of a person to become a Cabinet member.  We learned about some of the constraints that Parliamentarians live with and we looked at ways to gain influence with Parliamentarians.

We touched briefly on two competing Western World traditions. One of Parliamentary democracy and the other of fascism – the idea that the wisest and best should rule. We noted that fascism is characterised by: a single party representing only the interests of the elite, a police state, an enforced ideology, and the removal of independent public bodies such as private schools and churches. We noted that fascism can exist to varying degrees within democratic countries.

We also learned that all governments in the Westminster system are incompetent and that they rely on other sources for expertise. I want to look now at what some of those other sources are and how you can engage with them.

Who Ministers Listen To

Ministers are at liberty to inform themselves about something in any way they wish. We have already looked at the Parliamentary Committee system. In addition Ministers and other senior government members hire advisors and research staff. This is, frankly, an affront to the Public Service because it is the role of the Public Service to undertake research and provide advice to the government of the day. However it is also the role of the Public Service to be non-political. Advisors are often highly political and are usually members of the party. For this reason they may be more trusted and they are also more available. Public servants seldom take calls late at night.

If you can get the ear of an advisor you may get access to a Minister. Those contacts are usually made by associating with the same networks that the Minister and their advisor(s) associate with. If that appeals to you, study these networks and engage with them if possible. Unions, business groups, welfare organisations, environmental organisations, and various publications cluster around the different political parties.

The Public Service is a very different animal. According to the nineteenth century view the public service sits around dispassionately waiting for instructions from their political masters then rushes to carry out those instructions. In reality the Public Service drives agendas, initiates policy, and carries out policy. The Public Service acts under instruction from the Minister but also seeks to steer the Minister by providing advice. There are times when the Public Service will undermine a Minister and there are times when Ministers will undermine the Public Service. For example the Department of Defence essentially did a hatchet job on their Minister Joel Fitzgibbon and successfully destroyed him. I refer you to the wikilink in your materials.

Conversely it is also the job of senior public servants to protect the Minister and in essence, help them do their job. Senior and at times middle ranking Public Servants strive to gain influence by cultivating Ministerial staff – advisors, office managers, liaison staff and so forth. Ministerial staff who are smart work hard to cultivate links with the Public Service. It is a complex relationship, and it is one which can make or break a government. When these relationships work well governments do well and there are fewer leaks and less internal strife. When they work badly governments struggle and leaks and internal frictions are more likely to occur. In your materials I have included by way of example an article on Peta Credlin.

I would suggest, for example, that the Commonwealth Public Service provided very poor advice to the Minister on the pink batts home insulation program and failed to identify a number of risks despite having been specifically warned of those risks by state government agencies. The consequent deaths from house fires were instrumental in Kevin Rudd’s drop in popularity which led to the change in leadership which destroyed his government. A lack of oversight and risk management proved both politically and literally fatal.

Note also that there is the Commonwealth Public Service that answers to the Federal Government and each State and Territory also has its own public service that answers to the government of that State or Territory. They work under different awards, have different work cultures and answer to different people. The relationship between the Commonwealth and State bureaucracies on issues like health and natural resource management is often fraught.

Public Consultation

So what does all this mean for us?

Well one thing that the Public Service does is consult on proposed policies and legal changes. There is normally a formal process of policy development and review for all manner of things – everything from regulation of caravan parks to management of the Murray Darling river system. This is called ‘policy development’. The process is officially called the ‘Policy Cycle’. A diagram outlining the policy cycle is included in your notes but I will run through it briefly here. Each stage of the policy cycle can provide an opportunity for in-put. If you want to be a person or organisation of influence it is worth paying close attention to what the public service is doing so you can engage with this cycle.

Suppose the government decides on a certain policy. It could be to roll out ‘diversity training’ in schools to teach same sex marriage. It could be changes to the charitable status of non-government organisations. It could be changes to taxation or superannuation. At some point the Minister will ask their Department to draft a proposal, make it publicly available and call for public submissions.

In all likelihood the proposal will have come from within the Department but may have come from external sources through the Minister’s own consultations. In either case Departmental advice will be sought in framing the draft proposal. If the Minister is acting on an election promise the Department will have provided a number of briefings and alternative proposals explaining how that policy could be implemented, any associated risks and costs, and alternatives.

Once public submissions are called for this is your chance to provide a coherent argument for or against the proposal, and your chance to suggest alternatives. It also alerts you to the fact that there is an agenda out there for XYZ on which basis you can start calling talk-back radio, writing to the paper, and knocking on the doors of your local MPs.

Some consultations are fairly minor. For example some of the reviews of residential renting laws in Tasmania attracted around 60 submissions. In contrast the proposed Commonwealth Marine Reserves attracted half a million submissions. These varied in complexity from a card put out by a conservation group which someone signed and posted in, to complex documents put together by petro-chemical companies on marine oil exploration. It is the job of the relevant Department to read, collate, record and understand these submissions then report to the Minister. Typically the Department will also write a public report that summarises the main issues of concern.

The Department may also hold stake-holder forums for affected groups. For example, irrigators along the Murray Darling were consulted on various management proposals. Public meetings are usually held. Big stake-holders may get one-on-one meetings with senior officials.

After the proposal has gone out to consultation the Department will collate and analyse responses then report back to the Minister. The Department will advise the Minister of what people have said and suggest what the Minister should do. The Minister will then tell the Department what they will do. There could be any amount of further consultation or none. At that point the idea might be shelved, or it might go ahead but it might be changed a bit.

Introducing a Draft Law (Bill) to Parliament

If the proposal requires a change to the law the Department will draft a proposed change. This may be circulated to stake-holders for comment as a ‘circulation draft’. This is an opportunity to get someone smart to take a really close look at what the proposed law says.

Eventually there will be a final proposal or a final draft law for Parliament. At this point, if you like the proposal you are pretty happy. If you don’t like it your only hope is that Parliament will not support any draft law associated with the proposal. If most of the MPs belong to the party that is in government – for example if it’s a Labor government and most of the MPs are Labor – they will vote the law in. However, it can still be rejected or changed by the Senate (Federally) or the Upper House in State Parliament (except in Queensland which has only one house). This is where you need to lobby if you are not happy with the proposal.

If the Minister decides to go ahead with the policy and any associated legal changes are passed by Parliament, it will go ahead. If you are still unhappy you can still talk to your local MPs but basically you have to wait.

At this point some people feel that they had best write to the Minister and let them know what they think. That is fine but realise that the Minister will never see your letter unless their staff consider you to be important enough. What will happen is that your letter will be sorted by the Ministerial staff who will shoot it through to some junior or middle ranking public servant. That person will write a polite, inoffensive but non-committal response with a cover note and flick it back up stairs to the Minister’s Office. At that point the reply will either be given an electronic signature by a staffer and posted to you, or the Minister will sign it with a stack of other stuff in their tray that they likely do not pay close attention to – probably early one morning over coffee before they have to attend meetings.

So is it worth writing to a Minister? If a lot of people write on an issue in a small State like Tasmania or South Australia it may have in impact. If nothing else, the Minister will become aware that there is a lot of concern out there and someone – public servant or staffer, will let them know if there is a consistent theme to the correspondence.  For example – it could be “we really want submarines built in Adelaide” or it could be “Lots of coro on gay marriage minister but it’s even draw for and against”. This will become part of the Minister’s political calculus – how much heat am I getting on this issue and is it worth it? Their answer to that question will largely depend on what constituency they represent. Some people’s position is fixed while others are more flexible. Senator Eric Abetz for example, will be unmoved by pleas for asylum seeker rights or wilderness or worker’s rights because his position on those issues is fixed. Effort on these issues therefore should be directed elsewhere.

On most issues you are better to engage with any policy review and lobby back bench MPs and Senators/Upper House members.

Post Implementation Review

Sometime after the policy goes ahead there should be a review to see whether it has worked. This is called a ‘Post Implementation Review’. This is your next bite at the cherry. Here the Department repeats what it did before – call for submissions, meet with stake-holders, write up a report on what everyone has said, and advise the Minister. So engage with this process.

Usually these review are genuine but be aware that sometimes these consultation processes can be a sham. Sometimes the Minister has already made a decision but has to cover themselves by doing a consultation. Senior bureaucrats will likely get the message and give the ‘right’ advice to the Minister. After all they are on lucrative five year contracts and those contracts may not be renewed. The decision might be to go ahead despite objections, or the consultation might be a face-saving way of scraping a policy. This is particularly the case if the policy was inherited from a previous government. In the case of one Federal consultation review into defence policy it was later publicly admitted that the review had been a sham because the government was committed to buying the Joint Strike Fighter regardless. I refer you to your materials.

It also pays to be aware that Departments have their own biases and cultures often driven by senior management. When it comes to consultation processes the Department gathers and filters the information that the Minister receives. The Public Service can simply filter out or bias what gets to the Minister. In that case you should still engage but you may choose to limit your effort and focus instead on local MPs and community campaigning.

There is one more thing to say about the policy cycle. If the Department lacks technical expertise or the Minister thinks they do, they can hire that expertise externally. This is done by hiring consultancy firms, seeking advice from subject matter experts, and setting up expert review panels. If you have access to subject matter experts you may seek to engage them. Usually this is something that organisations and lobby groups do. For example my Father is a subject matter expert on home education and has been called upon by home education groups when State Education Departments try to consult on the issue.

In summary the policy cycle and the consultation process will vary depending on the complexity of the issue and political considerations. However the following sets out the key stages in a normal process around a moderately complex issue:

1. Internal analysis/report on the issue
2. Policy proposal or statement of problem – could be in various forms e.g. as a ministerial brief
3. Meetings with key stakeholders/stakeholder groups
4. Call for public submissions
5. Analysis of submissions and stakeholder feedback
6. Public report on consultation. May include recommendations
7. Advice sought from technical/subject matter experts (this could be at any state or more than one stage)
8. Change to Departmental policy and/or drafting of a new law or amendment to an existing law
9. Parliamentary vote on any legal change
10. Policy implementation
11. Post implementation review (may include another round of consultation to assess effectiveness of any change)
12. Post implementation review report

How to Write a Submission

Suppose then that you wish to lobby on an issue. Suppose you go to the Department website and print off a document that calls for submissions. At this point do not write a stream of consciousness rave about your pet topic. The document you have printed off will define the topic and contain terms of reference. The ‘terms of reference’ define the topic.  For example there is a current ‘red tape’ committee with the following TOR (Terms of Reference):

The committee is to inquire into effect of restrictions and prohibitions on business (red tape) on the economy and community, with particular reference to:

1. the effects on compliance costs (in hours and money), economic output, employment and government revenue, with particular attention to industries, such as mining, manufacturing, tourism and agriculture, and small business;
2. any specific areas of red tape that are particularly burdensome, complex, redundant or duplicated across jurisdictions;
3. the impact on health, safety and economic opportunity, particularly for the low-skilled and disadvantaged;
4. the effectiveness of the Abbott, Turnbull and previous governments’ efforts to reduce red tape;
5. the adequacy of current institutional structures (such as Regulation Impact Statements, the Office of Best Practice Regulation and red tape repeal days) for achieving genuine and permanent reductions to red tape;
6. alternative institutional arrangements to reduce red tape, including providing subsidies or tax concessions to businesses to achieve outcomes currently achieved through regulation;
7. how different jurisdictions in Australia and internationally have attempted to reduce red tape; and
8. any related matters.

Whatever the terms of reference are, that is what you need to write about. They have not asked for anything else. They do not want to know about anything else unless it is related. They will not consider anything else. Use the TOR for your submission headings. Provide a summary of your conclusions at the end of your submission. Type your submission and either double space or one and a half times space. Make it easy for the person reading. Refer to other sources and experts if you can. Do not send a long, rambling, handwritten submission.

Working in the Public Service

The other way to try to influence the Public Service is to work in it. If you wish to make change in the Public Service you will need great patience. My observation is that large policy changes take around ten years. They happen when consistent pressure from the public, and consistent support from within the bureaucracy, meet political opportunity. The bureaucracy is seldom mentioned in the news but is a key player in the policy game. It needs good people. One word of caution: you need to assess the work culture you are in and count the cost of making change. Careers and marriages have been destroyed by public service cultures that are dysfunctional, dishonest and change resistant. As with all attempts at influence, you are playing the long game not the short game.