Avoiding maladministration in the context of the NSW State election

As the March 2023 election approaches, it is timely to consider how the context of an election year can give rise to different or heightened risks of ‘maladministration’ by NSW government agencies and their staff.

What is maladministration?

As an independent integrity agency, the day to day work of the Ombudsman is not significantly impacted by the election. Our work, including receiving and investigating complaints, continues as normal throughout the election and caretaker periods. However, the context of a general state election can mean that the things we receive complaints or reports about may change.

The types of administrative conduct the Ombudsman can investigate is set out in section 26 of the Ombudsman Act 1974. We loosely refer to this conduct as ‘maladministration’:

(a) contrary to law

(b) unjust

(c) unreasonable

(d) improperly discriminatory

(e) based wholly or partly on improper motives

(f) based wholly or partly on irrelevant grounds or consideration

(g) otherwise wrong.

Any person who complains to us about maladministration has certain protections under the Ombudsman Act against reprisal action being taken against them.

Special protections also apply under the Public Interest Disclosures Act 1994 where a public official reports “serious maladministration” to the Ombudsman. Serious maladministration is defined as action or inaction of serious nature that is contrary to law, that is unreasonable, unjust, oppressive, or improperly discriminatory, or that is based wholly or partly on improper motives.

In this edition of In Focus, we look at some of the ways in which the conduct of public servants in the period immediately before or after a general state election could constitute maladministration.

The paper is not intended to be comprehensive but seeks only to highlight some pressing issues that all public servants need to be especially aware of at this time. These include the importance of:

If maladministration does occur, then a complaint or report (including, if serious maladministration is involved, a public interest disclosure) may be made to the Ombudsman.

Other integrity agencies also have a role to play with respect to some forms of maladministration – such as where maladministration constitutes ‘corrupt conduct’ (ICAC) or where maladministration involves a breach of electoral laws (Electoral Commission). The Chief Commissioner of the ICAC has recently written a brief paper to MPs highlighting important integrity issues relating to the state election.

The Public Service Commission (PSC) also has an important role during the pre - and post-election period. Its functions include promoting ethical behaviour in the government sector, and fostering the government sector core values.

Complying with the ‘caretaker conventions’

The most obvious new requirement that applies before an election is observance of the caretaker conventions.

These are self-imposed limits that successive Governments have agreed to observe in the period immediately before an election. In particular, the incumbent Government agrees not to make significant policy decisions, make significant appointments, or enter into significant contracts and agreements, which would bind a future Government.

These caretaker conventions formally apply from the day the lower house of Parliament, the Legislative Assembly, is dissolved (which this year is 3 March 2023). They also apply after the election (which is on 25 March 2023) until the election result is clear (if the current government is returned) or a new Premier is commissioned to form government (if there is a change of government).

The Department of Premier and Cabinet (DPC) has issued a detailed Guidance Note on the Caretaker Conventions and other pre-election practices. That note has been formally issued by the Premier under a Premier’s Memorandum, which makes it mandatory for Ministers and government sector agencies.

Although traditionally focused on the conduct of Ministers, it is the public sector that may be in the spotlight when concerns arise about possible non-compliance with the caretaker conventions.

A failure to comply with the caretaker conventions may constitute maladministration. As the Queensland Crime and Misconduct Commission has observed, a deliberate breach of the caretaker conventions could also amount to official misconduct resulting in disciplinary action.

An agency must not engage in conduct that would result in the Government directly or indirectly contravening the conventions. For example, if the Minister has delegated to the departmental Secretary the power to enter into a major new contract, then just as the Minister would not sign such a contract themselves during the caretaker period, so the Secretary must not sign such a contract during that period.

What constitutes a ‘significant’ contract, (or appointment, decision, or arrangement) involves some element of judgement, as the DPC Guidance Note explains.

Where urgent and unanticipated circumstances arise which mean that it is not possible to defer the making of a significant policy decision or appointment, or entering into a major contract or undertaking, it is expected that consultation with the Opposition will take place. In the case of significant appointments, an acting or short-term appointment could also be considered.

That said, as the DPC Guidance Note observes: NSW has fixed term elections, which means that the timing of the caretaker period is known well in advance with certainty. This means that it should not be difficult to avoid the need for any such urgent decisions, except in cases of genuinely unforeseeable emergency or perhaps where the caretaker period is significantly extended after the election because the election has resulted in a hung Parliament and the formation of a new Government does not occur for some time.

Agencies may be concerned about what they should do if they are asked by a Minister to engage in conduct that could be inconsistent with the caretaker conventions, noting that agency heads are responsible to a Minister, and even during the caretaker period are required to comply with any lawful Ministerial direction.

Of course, as the Ministerial Code of Conduct recognises, Ministers are prohibited from knowingly contravening the law and from knowingly directing or requesting a public servant or other person to contravene the law. However, the caretaker conventions themselves are unlikely to be considered legally binding in this way.

Nonetheless, an agency head in this situation has a duty to draw the Minister’s attention to the conventions and to provide impartial and ‘frank and fearless’ advice – which in this case would be to advise the Minister against action that would be inconsistent with the conventions. If the Minister does not accept the advice, the agency can seek advice from DPC, which could escalate the matter to the Premier if necessary.

If, having taken the above steps, the Minister (presumably then with the Premier’s backing) issues a direction to the agency to take the requested action, then any breach or alleged breach of the conventions would be a political matter. Although a deliberate breach by a Minister of the caretaker conventions might be considered maladministration, the conduct of Ministers is excluded from the Ombudsman’s jurisdiction.

Continuing to make ordinary administrative decisions and avoiding unnecessary delays

While the Government avoids making significant decisions during the caretaker period that would bind a future government, the ordinary business of the public sector generally continues without unnecessary delay.

The fact that an election is coming is not a reasonable basis for delaying proper and routine administrative action or decision. Indeed, doing so (for instance, because of a fear of potential adverse publicity for the government) could itself be construed as politically motivated, and therefore in contravention of the public service duty of non-partisanship.

For example, an upcoming election is not a reason or excuse to deny or delay responding to a service request, enquiry or complaint, or for an administrator to delay making routine decisions.

Nor is the caretaker period or the election a reason for an agency to delay dealing with or responding to applications in accordance with statutory timeframes under the Government Information (Public Access) Act 2009. As always, such responses must also be made without political interference and, in accordance with section 15. Considerations such as possible embarrassment to, or loss of confidence, in the government, or the fact that information could be misinterpreted or misunderstood, are irrelevant and must not be taken into account.

Keeping and maintaining proper records

Record keeping is an essential component of good administrative practice. All significant decisions should be documented to ensure accountability and transparency. The State Records Act 1998 requires each public office to make and keep a full and accurate record of their activities.

Although the obligation to keep full and accurate records applies at all times, it may be even more important in the lead up to an election, given the heightened prospect that decisions and actions taken during this time may be questioned or scrutinised. Decisions that are particularly relevant include those relating to the expenditure of public funds, policy decisions, and appointments.

It is not uncommon for the period immediately before and after an election to be seen as a convenient time to undertake administrative ‘housekeeping’. This can include identifying any state records that will no longer be required for day to day use and ensuring they are properly archived and/or returned to the appropriate agency.

Agencies should be careful to ensure that no state records are unlawfully destroyed in this process. Section 11(1) of the State Records Act provides that every public office must ensure the safe custody and proper preservation of the state records it has control of. It is an offence for any person to abandon or dispose of a state record unless doing so in accordance with the limited disposal authorities set out in the Act. For example, the destruction of a mere duplicate copy would be permitted, provided the original is properly kept: section 21(1).

The unlawful destruction of state records would constitute serious maladministration.

Arrangements for ensuring the continued confidentiality of the Government’s Cabinet records are dealt with in the DPC Guidance Note. Such records must also not be destroyed. DPC advises that official Cabinet papers should instead be returned to DPC at the beginning of the caretaker period for safekeeping and, if there is a change of Government, confidential archiving after the election.

Remaining apolitical and impartial

Public servants have a duty to provide non-partisan advice, and to act impartially and only in the public interest at all times, not just in the context of an upcoming election. Non-partisan advice is ‘frank and fearless’ and free of any political affiliation or bias, especially towards any particular political party or group.

This duty is now reflected in the Government Sector Employment Act 2013 (GSE Act). Of particular relevance are the government sector core values set out in section 7, which include:

  • placing the public interest over personal interest
  • upholding the law, institutions of government and democratic principles
  • providing apolitical and non-partisan advice.

The PSC has also issued a direction requiring all NSW government agency heads to apply the Code of Ethics and Conduct for government sector employees, whether by adopting it directly or by incorporating it into their agency’s code of conduct, and to make it mandatory for their staff.

From July 2023, a legislative amendment will introduce section 8A of the GSE Act, which will directly provide that compliance with the code is mandatory for all government sector employees.

A breach of a code, or failure to otherwise act in accordance with the government sector core values, may constitute misconduct and result in disciplinary action. Such conduct is likely to also constitute maladministration in so far as it can be said to be unreasonable (if not contrary to law).

While these values and duties apply at all times, the public service’s obligation to be non-partisan may be more likely to be tested, and to be under scrutiny, during election campaigns.

As NSW has fixed four-year terms, election campaigning in practice begins well in advance of the caretaker period. For this reason, the DPC Guidance Note urges special caution to maintain non-partisanship during the entire ‘pre-election period’. DPC suggests that this period could be considered as beginning as soon as Parliament ceases its scheduled sittings before the election (the last scheduled sitting day was 17 November 2022).

As the election approaches, it is essential that the government sector be and be seen to be impartial and apolitical. This means that agencies should at all times, but with special caution in the period leading up to an election, act only in ways that are consistent with their apolitical status, including:

  • ensuring that any publications placed on agency websites, social media or other public forum are politically neutral (this is especially important during the caretaker period, when any publications should generally be limited to essential matters of fact only)
  • ensuring any correspondence sent from the agency is likewise politically neutral
  • not providing political advice or opinions (this also means, during the caretaker period, that agencies avoid providing future-looking policy advice, although the Government can still request factual information from agencies)
  • making the agency available to respond to requests for factual information from the Opposition and other MPs in accordance with accepted practice
  • seeking to be even-handed in the way the agency treats requests from MPs and other candidates to visit agency facilities
  • exercising discretion if staff are scheduled to speak in public (public servants would, for example, be expected to decline invitations to speak or appear on panels that are discussing controversial issues relevant to the election campaign).

Again, agencies and government sector staff should follow the government sector core values, the DPC Guidance Note, and the PSC Code of Ethics and Conduct for government sector employees and their agency code of ethics and conduct on these matters – and, if in doubt, seek advice.

A deliberate or unreasonable failure to abide by the values, guidance or codes may be considered maladministration.

Social media use

It is worth highlighting social media use – both official and non-official – as a particular case where conduct must remain consistent with maintaining the status and reputation of a politically neutral public service.

While this is true at all times, the impact of posts that could be seen as political may be amplified in an election period.

Issues in this regard can arise even when posts do not expressly state political views, but where they could nevertheless reasonably be perceived as being aligned with, or endorsing, a particular political party. In a recent investigation, the South Australian Ombudsman found that the SA Department for Health and Wellbeing had engaged in maladministration in this regard by directly reposting content on agency social media channels from the social media page of the Premier of South Australia.

Individual government sector employees may also have their own personal social media accounts. Individuals have a right, in their personal lives, to participate in political and community activities and pursue private interests, which includes a right to participate, as private individuals, in online discussions about a range of issues. However, that right must be balanced with their status and obligations as a government sector employee – that includes ensuring that none of their social media activity could lead an ordinary member of the community to doubt whether they will be able to put aside their personal views, to act professionally and impartially in their work, and to work apolitically for any party that may happen to form Government.

The NSW Government social media guidelines require all departments to have a non-official social media policy in place, and all government sector employees who wish to engage in any social media activity should ensure they pay careful regard to their relevant department and/or agency policy.

The Australian Public Service (APS) Commission has also issued more comprehensive Guidance for APS public service employees and agencies, much of which will also be helpful for NSW public servants.

Avoiding conflicts of interest

All public officials have a duty to properly disclose and manage (and avoid where possible) any conflicts of interest.

The PSC Code of Ethics and Conduct for government sector employees provides that employees must always disclose actual, potential or reasonably perceived conflicts of interest. Where a conflict exists, it should always be resolved in favour of the public interest.

In the context of an election, the most obvious circumstance where a new conflict of interest might arise is where a government sector employee decides to run for office.

Under section 71 of the GSE Act, employees running for office in a NSW state election must apply for and be granted leave until the result of the election is declared. Government sector employees considering contesting an election should also consult the FAQs prepared by the PSC and published under a DPC circular.

Section 13B of the Constitution Act means that, if any government sector employee (or other person who holds ‘an office of profit under the Crown’) is elected, they must resign their role before they can sit in Parliament.

Even if they are not running themselves, government sector employees may have political affiliations with, and wish to support, a political party during its campaign. While this is generally permissible, these employees may need to take steps to minimise any perception of a conflict. Particularly for senior public servants, or those whose involvement in a campaign is significant, this may mean taking leave or stepping aside from their role for a period.

Campaigning and other use of public funds

The PSC Code of Ethics and Conduct requires government sector staff to use public resources in an efficient, effective and prudent way and prohibits the use of public resources for personal benefit or for an unauthorised purpose. This also means that government resources should not be used for campaigning.

During the caretaker period, it may be necessary to assess the provision of resources for Ministers and their staff on a case-by-case basis. Guidance on the provision of resources for Ministerial travel is set out in the Minister’s Office Administration Handbook. It provides that travel at public expense (other than using DPC cars and drivers) is limited to official (that is, Ministerial) business, which would exclude travel to an event such as a party campaign launch or conference. Likewise, publicly provided Ministerial office resources could not be used to fund expenses of the election campaign itself.

Members of Parliament may ask to visit government premises during an election campaign, such as schools and hospitals. The DPC Guidance Note sets out the processes to be followed when this happens. It also deals with requests by candidates and their supporters to distribute election materials at Government facilities, such as train stations.

The potential for public funds to be used to indirectly support political campaigns through advertising is curtailed in the lead up to an election. Under section 10 of the Government Advertising Act 2011, NSW has a moratorium on government advertising from 26 January of the election year until the election is over. There are exceptions for advertising related to routine government business, such as public health or safety matters, service announcements (including electoral information announcements), notices required to be published under a law, job advertisements and tender advertising.

The prohibition on mis-using Government resources (including the work time of government sector employees) for campaigning purposes also applies to staff in Ministerial offices. Unlike other public servants, Ministerial staff are not required to observe non-partisanship in the performance of their duties. However, like other public servants, Ministerial staff are paid from public resources to perform a particular role. So, for example, it would be an inappropriate use of public resources for Ministerial staff to be diverted (during their paid working hours) to participate in campaign work under the direction and supervision of party officials.

Grants administration

The temptation to provide or promise funds to communities in seats that are marginal or held by the Government of the day could be heightened in the period leading up to an election. This can give rise to a risk of ‘pork-barrelling’, which a recent ICAC report defines as “the allocation of public funds and resources to targeted electors for partisan political purposes”.

For this reason, it is particularly important that agencies administering grant programs are aware of their obligations and adhere to them in the period around an election.

Guidance for agencies on how to administer grants in an impartial and transparent manner is available in the recently updated DPC Grants Administration Guide. That guide has been issued under a Premier’s Memorandum and compliance is now also legally mandatory under Schedule 1 (section 31) of the Government Sector Finance Act 2018.

In administering grants, the government sector must also comply with the Government Sector Finance Act 2018 more broadly, as well as relevant government sector core values under the GSE Act, which require those administering grants to place public interest over private interest, to be transparent, fiscally responsible, and to focus on the efficient, effective and prudent use of resources.

Failure to comply with the new Guide, and the requirements of the above legislation, may constitute maladministration.  Grants programs may also be the subject of audit by the Audit Office. In a number of recent reports, on local council grants and on bushfire relief grants, the Audit Office has made adverse findings about ineffective administration and processes lacking integrity.

If a grant is approved solely to benefit private interests, then this may also amount to a breach of public trust, which is corrupt conduct as defined in s 8 of the Independent Commission Against Corruption Act 1988. In August 2022, the ICAC released its “Report on investigation into pork barrelling in NSW”. The report sets out the circumstances under which pork-barrelling may amount to corrupt conduct and emphasises that Ministers do not have unfettered discretion to allocate funds in the form of grants.

No publications available.