The Australian War Memorial has gone through a period of major disruption over the four-month inquiry by the Merit Protection and Review Agency in what is seen by some as a dangerous precedent in the Australian Public Service. It has also revealed one Federal Minister being taken totally by surprise by the actions of another that affected in his portfolio area _ similar in nature if not seriousness as the woodchip fiasco.
Information received by The Canberra Times shows also that the Ministers were sent quite early in the inquiry’s life Federal Attorney-General’s Department advice that the inquiry was flawed, but no action was taken on the advice. Since the inquiry into alleged workplace harassment was launched (it was never formally announced to the public) in August last year, up to eight staff have been off on stress leave at any one time, key and talented staff have sought jobs elsewhere and staff have been frequently distracted by gossip, hearings and generally taken up with inquiry matters rather than memorial work. A Federal Court challenge to the MPRA’s unpublished findings is now under way by the former director Brendon Kelson and the present deputy director Dr Michael McKernan. Documents obtained by The Canberra Times reveal that the Minister for Veteran’s Affairs, Con Sciacca, had been provided with legal advice from officers of the Attorney-General’s Department expressing the opinion that the procedure and jurisdiction of the MPRA was defective and he had been urged to ask the Minister responsible for Public Service Matter, Gary Johns, to stop the inquiry. Other sources say other legal advice to similar effect had been sent to John’s office. Johns’s office said yesterday that no legal advice impugning the jurisdiction or procedural correctness of the inquiry had been received.
Johns’s office said Sciacca had been aware of the inquiry, but had had no input into its terms of reference. Other material shows that the Public Service Commissioner, Dennis Ives, had expressed concern and doubt about the MPRA’s definition of workplace harassment as being too wide and beyond the defined public-service offence. The MPRA apparently created its own definition by referring to a range of dictionary definitions of the word “”harassment” among other material. The Public Service guidelines have a stricter correlation between conduct and the workplace. However, the MPRA says it undertook its inquiry fairly, within jurisdiction, using the proper definition of workplace harassment, giving people affected a proper chance to respond to allegations and fulfilled the inquiry task given to it by Johns in an efficient and timely way. That is not the view of Kelson and McKernan. They assert the MPRA acted outside its jurisdiction, did not adopt procedural fairness, engaged in trawling for allegations and encouraged allegations to be brought, that it put allegations in a generalised way and did not confine itself to the definition of harassment in the public-service guidelines, among other things.
It is fairly hard to find out exactly how the matter arose. In mid-1994, Kelson announced he would retire at the end of the year; it seemed likely his deputy McKernan would get the job. Some memorial sources suggest that a small group of people who did not especially like McKernan or his management style thought they would stymie him by making allegations of workplace harassment. They had no specific serious charges so made ambit allegations. Someone appeared to have high and influential access into Johns’s office where the complaints went _ by-passing Sciacca’s office. Instead of referring them to the portfolio Minister, or even discussing them with him to see if the allegations could be dealt with through normal public service procedures, Johns ordered an inquiry by the MPRA _ the first by the agency of this wide-ranging kind. Johns gave the MPRA a two-paragraph brief: “”Recently I have had brought to my attention matters relating to staff management at the Australian War Memorial. I understand that there have been allegations made by staff at the Australian War Memorial of various types of workplace harassment over a considerable period.
“”I now request, pursuant to Section 56 of the Merit Protection (Australian Government Employees) Act that the Agency conduct an inquiry into, and report to me upon, workplace harassment at the Australian War Memorial”. There was no detail of allegations to be investigated. The Minister’s office said yesterday that given the number of allegations both before and after the inquiry that an MPRA inquiry was the most appropriate action. A spokesman said the Minister was concern that certain people went public when he and the MPRA had conducted themselves in accordance with the secrecy provisions of the Act. After the inquiry was appointed, Kelson then rather foolishly (in hindsight) jointly signed with the acting head of the MPRA a letter to all staff asking them to co-operate with the inquiry by raising any concerns about staff management issues with the inquiry, but to support them with specific examples. It was an invitation for a trawling exercise. Once people came forward, the inquiry could investigate. The MPRA has powers to force people to attend it and force people to answer questions on pain of jail or a fine. It can also demand access to documents. It does not have to obey the rules of evidence. In short it has wider powers than the police.
It has powers of a court with none of the protections: open hearing, right to representation and cross-examination. This may be acceptable when the MPRA is engaged like a defence counsel in protecting some lower clerk against being demoted, fired or moved, for example. Defence counsel generally use any trick in the book to get their client off. However, when these powers are available in a prosecutorial role, it is downright dangerous. The MPRA launched a prosecutorial process against the two most senior managers at the memorial. The charge was workplace harassment. The trouble for those being prosecuted was that a “”conviction” or finding against them has serious consequences under the Public Service Act and more generally for future prospects. Kelson thinks the mere fact of the inquiry has resulted in the “”smoke-and-fire syndrome”. Unlike other public servants of his experience he is unlikely to be asked to join boards of get consultancies. Some think that in McKernan’s case his career will be virtually stopped dead. The MPRA’s inquiry has had a similar effect on them as a US civil servant appearance in the 1950s before the Un-American Activities Committee. The announcement of the inquiry (made without warning to Sciacca) was enough to ensure McKernan did not get the director’s job, even in an acting capacity when Kelson retired. An acting director has been appointed for a year. McKernan is on a year’s leave attached to the ANU. Sciacca found out about the inquiry indirectly. Once the inquiry was launched every employee with a whinge came forward. Now, if you went into any organisation in Australia you would get the sorts of generalised whinges the MPRA got _ with one or two isolated incidents that no manger would be proud of, but which happen occasionally in most places. On the other hand, Kelson and McKernan are not model mangers.
No-one is. No doubt they said and did things or did not do things that occasionally upset people, or occasionally behaved in a cliquey way. In a place like the War Memorial, where there are many professional groups, it is likely that people will feel they know best and “”those idiots upstairs” do not know what they are doing. But some of the allegations by the MPRA put to Kelson indicate the MPRA was scraping the barrel and drawing a long bow in terms of a serious formal public service offence. For example, the MPRA said Kelson was committing harassment because he did not attend a National Press Club lunch where a staff member was giving an address. Seriously, it said it showed his failure to support staff and therefore could be harassment. Other allegations included by-passing an SES officer to seek advice from lower staff; excluding a staff member from work on a major project; being considered by staff to be weak; being considered by staff to allow McKernan to run the memorial; “”being mistrusted by staff”; “”not knowing or wanting to know what is going on”; “”having staff from Personnel consider that there is a widespread high degree of cynicism, mistrust and fear; and “”having a high regard for Michael McKernan”. Many of the allegations seem impossibly general and relate to staff perceptions rather than specific action Kelson took against staff.
It seems the MPRA is saying there is a case against Kelson for workplace harassment because of what other people think about him; not what he himself has actually done. It is classic McCarthyism: “”People think you are a communist; so you are one”. Many relate to management decisions. Two allegations, however, are directly ones of harassment: shouting at a staff member, and saying he will “”get” the staff member responsible for the inquiry _ both of which Kelson denies. The MPRA’s trawling resulted in 27 per cent of staff coming forward and about 87 per cent of them making negative comments. Thus in an open-slather offer of an anonymous free-kick against the management about a quarter of people came forward with complaints. Most organisations in Australia of that size _ 250-odd _ would cop that sort of result. It is not Japan. Australians do not sing the company song every morning.
They will always have a gripe _ usually a healthy one. But to covert that into formal Public-Service charges in an environment of anonymity, absence of the rules of evidence, compulsion by the accused to attend and answer without benefit of representation is downright dangerous. During the time of inquiry nine fairly senior officers went to the Ombudsman to get the inquiry stopped _ alleging “”serious corruption of due process and natural justice”. The Ombudsman declined because the complaint related to “”a person’s employment in the Australian Public Service or prescribed authority”. Several other people were asked to intervene without effect _ apparently no-one dared _ so the matter will now go to the courts. The memorial’s council has refused to help Kelson and McKernan with costs.
The essential problems were anonymity of accusers and secrecy of process. The MPRA is not alone in this. In the past decade or so, various bodies have been set up to deal with grievances where it has been thought the traditional legal approach was too intimidating so victims would not be able to come forward. So it was thought that accusations should be allowed to be anonymous and/or hearings of the accusations in secret: various federal and state human rights commissions are examples.
The lesson of this exercise is that justice can only be done in the open. A spokesman for Johns said the Minister had received a copy of the MPRA’s report and is still considering whether to make it public. Sciacca said he had no power with respect to the day-to-day management of the memorial. His power was confined to the appointment of the director and the council members, who elected their own chair, and power to approve the estimates of expenditure. It could be argued that, given a quarter of the staff made complaints, there was some things wrong at the memorial, but the MPRA was the wrong way to fix it. It may be that the memorial got too bureaucratised.
It may be that Kelson was the wrong person for the job. But that does not excuse the sort of process that has gone on there. It could also be argued that the MPRA process allowed a very small number of malicious disaffected whingers to inflict grave damage to some upper managers completely disproportionate to any problem they may have had with them or worse to discredit one so that one of the complainants could get the job. The important thing is for the Parliament and Government to have a thorough look at the MPRA’s powers. To some extent this might be happening in a quiet way.
Notice how the proposed changes to the Public Service Act suggest that the Industrial Relations Commission look after employment grievances in the Public Service in future. But a more open inquiry would be better. Meanwhile, the present acting director of the memorial, Peter Hawker, wants to put the MPRA inquiry behind the organisation. He senses a great deal of goodwill and loyalty to the memorial by the staff _ something the memorial will need in the 50th anniversary year.