In the public sector, the vast majority of jobs are appointed by a public servant (eg: a secretary of a department) or other equivalent. The Public Service Act 1999 provides the authority of appointment to the relevant Secretary not to the Minister. This is then delegated by the Secretary under the relevant Chief Executive Instructions.
Some jobs – statutory positions – are appointed by the Government. Appointment to these positions is subject to the relevant legislation.
So, for example, the Governor of the Reserve Bank of Australia is appointed under section 24 of the Reserve Bank Act 1959:
The Governor and the Deputy Governor
(a) are to be appointed by the Treasurer; and
(b) shall be appointed for such period, not exceeding 7 years, as the Treasurer determines but are eligible for re-appointment; and
(c) hold office subject to good behaviour.
There are relatively few statutory positions and governments have zealously guarded this power of patronage. In 2008, however, Kevin Rudd wanted to claim credit for creating a ‘merit-based’ selection process and established a new policy that would effect an interview process by public servants which would then recommend the suitable candidates. Of course the Government was not obliged to follow the recommendations. But it did cede a level of control over statutory appointments to the public service.
Now the public service is relatively homogenous. If you want to be promoted, especially to the senior executive service, you would normally have the same leftist Green/Labor world view. Hence the selected candidates for statutory office will tend to be of the same colour.
I think the policy was actually introduced to bind a future Coalition Government. The Abbott Government would do well to rescind the policy and select qualified and competent people for statutory office who do not have the traditional public service mentality.
Worryingly, though, is section 2.1 of the Guidelines which states (my bolding)
Each Secretary is responsible for keeping a record of all statutory appointments in
his or her portfolio. The Secretary will notify the relevant Minister or Ministers,
in writing, of an upcoming expiry of an appointment six months before the
The Secretary will seek the Minister’s advice on whether:
• the incumbent is to be offered reappointment (if allowed by legislation), or
• the incumbent is not to be reappointed, or
• the Minister wishes to test the field through advertising the position (which may or may not result in the incumbent being reappointed).
The Secretary’s notification to the Minister must be copied to the Public Service Commissioner (the Commissioner).
Where the Minister decides to advertise the job rather than reappoint the incumbent, an open and merit-based selection process must apply. The Secretary will consult with the Minister on details such as the scope of advertising and
selection criteria. However, there are minimum requirements detailed in sections 2.6.1 and 2.6.2 below.
The Minister is responsible for advising the incumbent in writing at least four months before the expiry of their appointment that he or she will:
• be reappointed, or
• not be reappointed, or
• not be reappointed because the Minister wishes to test the field of potential candidates but he or she is able to apply (if reappointment is allowed by legislation).
The Secretary must advise the Commissioner of the Minister’s decision.
What if, say, Wayne Swan or some other Minister advised a person that he or she will be reappointed even though the appointment will not be made until a Coalition Government is in place? That person will have an expectation that he or she will be reappointed, yet the Coalition Government should have the unfettered right to appoint whoever it wishes according to law.
My view is that the new Government is not bound by such promises from the old Government. But could a person then sue?
One thing though, it seems clear that the policy is designed to thwart a Coalition Government from making its own appointments. If the policy continues under the Coalition Government, no doubt the same type of persons will be put up which reflect the Green/Labor worldview. If the Coalition ignores the recommendations (as it should) it will be subject to criticism of not following merit selection guidelines. The Coalition would be best to abolish the guidelines.