Making Creeping Assumptions

Even if the recent Board of Inquiry into Victorian Hotel Quarantine Program does not reveal who actually made the now fatal decision to engage private security companies, it will have at least added a new phrase to the lexicon of public discourse – the notion of “creeping assumptions”.

To recap, based on the evidence presented during the public hearings, we have been led to believe that no single person, department or government agency made the all-important decision. Instead, we are left to conclude that this was a decision made by default, based on a series of “creeping assumptions”.

What this suggests is that rather than a conscious or affirmative decision, the parties relied on their own interpretation of unfolding events and information flows to conclude that someone else had made the call to outsource hotel security, and as a consequence everyone involved simply went along with it. As I have pointed out before, the decision to engage private contractors is not the issue. But it does beggar belief that even if nobody could recall who made the decision, they could not point to the information that informed their assumptions, nor could they specify who instructed the drawing up of the commercial contracts. As a result, the Victorian Government has spent $6m to find out who signed off on $30m of expenditure.

Anyway, one of the consequences of these so-called creeping assumptions is that the decision-making was deeply flawed because it lacked process, scrutiny and accountability:

  • Process was clearly missing (unless the Inquiry finds otherwise), because of the absence of documented minutes or formal note-taking.
  • There was no scrutiny of the “decision”, to confirm the various dependencies and delegated authorities that initiated the contracts issued to private contractors.
  • And the fact that no-one can be identified as being responsible for the decision, could mean that no-one can be held accountable.

If nothing else, this will become a case study for students of politics, public administration, and corporate governance.

Next week: Bread & Circuses

Three Wise Monkeys

At the time of writing, Melbourne is poised to move out of Stage 4 lock-down – but don’t hold your breath in anticipation: we have become used to the drip feed of information, contradictory policy narratives, and the political process of softening up the public not to expect too much too soon.

Three Wise Monkeys – Image by Anderson Mancini, sourced from Flickr

Meanwhile, the Public Inquiry into the failure of the Hotel Quarantine Programme will this week feature three key political witnesses, namely the State Premier and his Ministers for Health and Jobs respectively. Based on the evidence given to the Inquiry so far, plus the Premier’s daily press briefings, it’s clear that no-one in public office or in a position of authority can say specifically who, how and when the decision was made to engage private security firms to implement the hotel quarantine arrangements.

Of itself, the decision to outsource the hotel security should not have been an issue – after all, the State Government engages private security firms all the time. However, it has now been established that nearly 100% of the community transmission of Covid19 during Victoria’s second wave of infections can be traced back to returning travellers who were in hotel quarantine. On top of that, the Inquiry has seen evidence of people breaching the terms of their quarantine, and has heard a litany of errors and mismanagement at every level of administration.

Although the Premier as leader of the Government has claimed overall responsibility for the quarantine debacle (and which led to him imposing the Stage 4 lock-down), it’s worrying that no-one in his administration (himself included) can recall the details of the fateful decision. Pending the outcome of the Inquiry (and the result of the next State Election), it remains to be seen whether the Premier or anyone else is actually going to be held directly accountable for the blatant quarantine failures.

Not only that, but Ministers, their senior civil servants and key State Administrators all seem to be denying responsibility for making any concrete decisions on the hotel quarantine security arrangements, let alone to knowing who did, when or how. It’s like a bizarre remake of the Three Wise Monkeys, in triplicate: first, we have the Premier and his two key Ministers; then you have their respective Departmental Secretaries; finally there is the Chief Health Officer, the Chief Commissioner of Police and the Emergency Management Commissioner.

Instead of “see no evil, speak no evil, hear no evil” it’s more a case of: “I didn’t see who made the decision, I didn’t speak to anyone who made the decision, and I certainly didn’t hear from anyone who did make the decision“. In exchanges with the media and at the Inquiry, some of the players have even tried to deflect responsibility onto their counterparts, along the lines of, “I assumed X had made that decision”, or “the decision had been made before I got to the meeting”.

Yet, somehow, a decision was made.

So was the decision taken telepathically, organically or via a process of osmosis – the people involved simply “knew” or “sensed” that a decision had been made?

In case anyone think I am being unfair or I am deliberately misconstruing the situation, let’s follow the logic of what we are being told, and as a consequence, what we are being asked to believe. Earlier this month the Hotel Quarantine Inquiry heard evidence about an apparent administrative “decision” to exclude the Chief Health Officer “from taking control of the state’s coronavirus response against his wishes and in contradiction to the state’s own pandemic plan”.

A few weeks prior, the Premier was reported as saying:

I wouldn’t want anyone to assume that anyone had made an active decision that [the Chief Health Officer] should be doing certain things.”

And there is the nub of the issue – as voters and tax payers, we are expected to believe that none of our elected representatives, civil servants or public officers have made specific decisions about key aspects of the public health response to the pandemic.

In his evidence to the Hotel Quarantine Inquiry, the Secretary to the Department of Premier and Cabinet gave further insight into the decision-making processes. Like his colleagues and counterparts, he was “unaware” who ultimately made the decision to use private security firms. Instead, he suggested that decision-making was shared among key experts:

“I have a strong view that the concept of collective governance where you’re bringing together the special skills of different actors to deal with complex problems is an important part of how we operate,” he said. “So you’ve asked for my response, as the head of the public service, I can see some legitimacy in the idea of there being collective governance around an area such as this.”

So does “collective governance” mean that no single person is responsible for decision-making (and as such, no individual can take the credit or be blamed for a specific decision)? Or does it mean that everyone involved is responsible, and as such they are all accountable for the decisions made by the “collective”, or which are made in their name or on their behalf? In which case, if the decision to engage private security firms was the root cause of the second wave and the Stage 4 lock-down (and all its consequential social and economic damage) should the “collective” all fall on their swords?

As the Guardian commented last week:

“The hearings have been running for several weeks now, and no one has yet claimed personal responsibility for the decision to use private security guards in hotel quarantine. The murkiness around this decision […] has become almost more significant than the decision [itself]. In inquiries like these, being unable to elicit a clear answer to such a key and really simple question is usually not a good indicator of the underlying governance protocols in place.”

Having once worked in the public sector for five years, I know that there are basically four types of decision-making outcomes in Public Administration:

  1. A good decision made well (due process was followed, and the outcome was positive and in accordance with reasonable expectations – job done)
  2. A poor decision made properly (the due process was followed, but unfortunately it turned out badly – shit happens)
  3. A good decision made poorly (we stuffed it up, but sometimes the end justifies the means – high-fives all round)
  4. A poor decision made poorly (no-one in their right minds would have come to that conclusion, and the results speak for themselves – we’re toast)

Subject to the evidence to be presented to the Inquiry this week (and depending on how the transition out of Stage 4 lock-down goes), I fear that in the case of the decision to outsource hotel quarantine security, it sits squarely in category #4.

I can almost imagine the scenario when the “decision” to hire private security guards was communicated to the various Ministers, Civil Servants and Public Officers:

Member of the Collective #1: “OK, the State Government has been asked to implement the Hotel Quarantine programme on behalf of the Commonwealth, so we need you, you and you to organise the security hiring arrangements. We don’t care how you do it, or who you use, but just get it done, and make sure that any poor outcomes can’t be attributed to any of us.”

Member of the Collective #2: “Can we take up the offer of assistance from the ADF?”

Member of the Collective #1: “Don’t ask. (Don’t get.)”

Member of the Collective #2: “Oh, so we’re working under a policy of plausible deniability?”

Member of the Collective #1: “You didn’t hear that from me.”

Member of the Collective #3: “Is so-and-so aware of this decision?”

Member of the Collective #1: “I don’t know, and you don’t need to know either.”

Member of the Collective #4: “Got it. Didn’t see it, didn’t say it, didn’t sort it.”

Of course, this dialogue is pure conjecture on my part, but I think we’ve all seen enough episodes of “Yes Minister”, “The Hollowmen” and “The Thick of It” to know how these things play out….

Next week: The Age of Responsibility

 

 

 

Responsibility vs Accountability

One of the issues to have emerged from the response to the current coronavirus pandemic is the notion that “responsibility” is quite distinct from “accountability”.

In the Australian political arena, this is being played out in two specific aspects, both of which reveal some weaknesses in the Federal and State delineation. The first is the Ruby Princess, the passenger cruise ship that appears to have been a significant source of Covid19 infections from returning and in-bound travellers. In this case, blame or liability for the breach in quarantine measures is being kicked around between Border Force (Federal), and NSW Health (State): who was responsible and/or accountable for allowing infected passengers to disembark?

The second arises from the number of Covid19 cases among aged care residents in the Melbourne Metropolitan area. Here, the issue is the governance of aged care facilities as between privately-run homes (Federal oversight), and public homes (State operation). As an example of the strange delineation between Federal and State, “…the Victorian government mandates minimum nurse-to-resident ratios of up to one nurse for every seven residents during the day, the Commonwealth laws only call for an “adequate” number of “appropriately skilled” staff – both terms are undefined.”

As with all key areas of public policy and administration (health, education, social services), the relationship between different government departments and administrative bodies can be confusing and complex. In very broad terms, public funding comes from the Commonwealth (via direct Federal taxes and the redistribution of GST back to the States), since States have limited options to raise direct revenue (land taxes, stamp duty, payroll tax, and fees from licenses and permits). The Commonwealth funding can be allocated direct, or co-mingled with/co-dependent upon State funding. Likewise, service delivery can be direct by the Commonwealth, jointly with the States, or purely at the State (or even Local) level.

Within Victoria, there is an added dimension to the “responsibility” vs “accountability” debate, largely triggered by apparent failures in the oversight of the hotel quarantine programme. This in turn led to the second wave of Covid19 infections via community transmission (and the tragic number of deaths among aged care residents). The Premier has said he wasn’t responsible for the decision to use private firms to operate the security arrangements at the relevant hotels. In fact, the Premier appears not to have known (or wasn’t aware) who made that decision (or how/why it was made). But he does admit to being accountable for it.

Meanwhile, his departmental ministers have similarly denied knowing who made the decision, or they have said that it was a “multi-agency” response – maybe they are trying to shield each other in a strange show of cabinet collective responsibility, and to avoid apportioning direct blame to their colleagues. But if the government didn’t know who was supposed to be running the hotel quarantine programme, then surely the private security firms certainly couldn’t have known either – if so, who was paying them, and from whom did they take their orders and direction?

We are being drip-fed information on the failures in the hotel quarantine programme: did the AMA “write a letter” to the Victoria Department of Health & Human Services about their concerns over the hotel quarantine programme? did the DHHS provide “inappropriate advice” on the use of PPE by hotel security staff? did the Victorian Premier actually propose the hotel quarantine programme at National Cabinet, and then omit to request support from the police and/or the ADF?

It’s not surprising, therfore, that confusion reigns over who was responsible, and who is accountable; more importantly, who will be liable? What would be the situation if, for example, front line medical staff or employees in “high risk settings” have died from Covid19 as a result of community transmission within their workplace (itself stemming from the hotel breakout), and where there were inadequate workplace protections, especially if the latter were based on government advice and supervision?

The new offence of criminal manslaughter applies in Victoria since July 1, 2020. It will only apply to deaths caused since that date and as a result of “negligent conduct by an employer or other duty holders … or an officer of an organisation, which breaches certain duties under the Occupational Health and Safety Act 2004 (OHS Act) and causes the death of another person who was owed the duty”.

Finally, in reading around this topic, I came across an academic paper which discusses the treatment of responsibility, accountability and liability in the context of professional healthcare. In trying to define each from a clinical, professional and legal perspective, the author concluded that:

“….[R]esponsibility means to be responsible for ensuring that something is carried out whilst accountability moves beyond this to encompass the responsibility but adds a requirement that the healthcare professional provides an account of how they undertook the particular task. Liability moves the definition forward by adding a dimension of jeopardy to the definition of accountability. In a strict legal sense once the accountable person has provide their account they have fulfilled their duty. However, if the healthcare professional is liable rather than accountable for their action then the account they provide will be judged and, if found to be wanting, there may be a penalty for the healthcare professional.” (emphasis added)

I wonder if we should be assessing political and administrative liability by the same standard?

Next week: Startupbootcamp Demo Day – Sports & EventTech

 

 

Life After the Royal Commission – Be Careful What You Wish For….

In the wake of the recommendations from the Royal Commission into Misconduct in the Financial Services Industry (aka the Hayne Report), one of the four major banks announced that it would be removing bonus payments for its front line tellers. This was supposedly in line with Hayne’s proposal that performance-linked remuneration, financial incentives and sales commissions in the financial services industry need to be restructured.

Image sourced from Small Caps

This prompted a mixed reaction among the public, based on some of the comments I have read on social media. Some felt that the tellers were being made scapegoats for the banks’ bigger failings – others felt that this was an inevitable outcome from the banking backlash.

Personally, I believe the announcement is potentially just one of the many likely “unforeseen consequences” to come out of the Royal Commission – I’m not saying this particular decision is good or bad, just that we need to be aware of what’s likely to happen based on Hayne’s key recommendations. Be careful what you wish for. And, as an underlying theme to this whole debate, let’s not forget that most Australians are shareholders (directly or indirectly via their Super) of the Four Pillar Banks (one of the greatest government-endorsed and legislatively protected market oligopolies around which also helped steer us through the GFC relatively unscathed….).

So, what else might we see?

First, as with financial advice, residential mortgages will move to a “buyer pays” model. Brokers would not be able to receive commissions from mortgage providers or other intermediaries based on the products they sell, recommend or refer – instead, mortgage applicants will be expected to pay for the services of a broker, who will therefore be under an obligation to find the best product for their client. But removing trailing commissions and other conflicted remuneration may also mean that brokers could seek to earn additional fees from their mortgage clients by re-contacting them a year or so later (with permission, of course) to inform them of a better deal. (Even now, lenders are not explicitly obliged to let existing customers know if they have a newer product that may be better for them). Some estimates suggest that fee-for-service will add about $3,000 to the initial cost of applying for a mortgage. Whether this will also lead to more competition among mortgage providers (who will no longer have to pay broker commissions) is not clear.

Second, the increased focus on acting in the best interests of the customer may result in placing all financial planners, brokers, advisors, insurers, and banks (and their officers, agents and employees) under a fiduciary duty of care to their clients – even if they are not directly managing specific assets, selling a specific product or advising on specific services or financial strategies. In other words, advisors etc. will be deemed to have taken ALL of a client’s needs and circumstances into account. (This is largely the result of the miss-selling of financial products, and the charging of fees for “no service”, by banks and their retail wealth management arms.)

Third, the increased cost of compliance will disproportionately impact smaller financial institutions such as credit unions, member-owned banks and other mutual societies, who came through the Royal Commission pretty much unscathed. Those costs will need to be passed on, to customers and members. Of course, there has also been some political debate around the need for some sort of banking levy – which will ultimately be passed on to shareholders or customers (who are often the same people…).

Fourth, and related to the above, the separation of roles between those superannuation trustees who act as both fund trustees and as responsible entities of managed investment schemes will have a knock-on effect in terms of operating and compliance costs. Such dual-regulated entities will have to decide whether to focus on their trustee role, or appoint a separate and independent responsible entity in respect of the asset management.

Fifth, the higher compliance and regulatory obligations may deter or inhibit more competition – either from new market entrants from overseas, or from local start-ups. The recent restricted ADI model (aimed at enabling challenger or neo-bank brands) has not exactly seen a raft of applications, and off-shore banks tend to come and go in successive waves, largely driven by market conditions. If lending standards are further tightened, it may be less attractive for foreign firms to set up local operations. In fact, there have been calls to force some smaller superannuation funds to merge with larger funds, or exit altogether for reasons of scale and efficiency – potentially taking out some of the competition in that sector. And if mortgage brokers have to move to a fee-for-service model, it will likely force some providers to exit the industry, as happened with the FOFA reforms in financial planning and wealth management.

Sixth, at the level of corporate governance, boards of financial services providers will need to be mindful of their duty to act in the best interests of the company – which has traditionally meant the share holders – and the increased duty of care towards their customers, which may at times be at complete odds. Non-executive directors willing to serve on the boards of banks and insurers may also be harder to find, at a time when there is already a high concentration of directors who sit on multiple boards across Australia’s biggest companies. So, board diversity may be even harder to achieve, especially if non-executive directorships become subject to even greater formal qualification, to ensure board members have appropriate professional experience, industry knowledge and technical expertise, as well as financial competence and risk management skills.

Finally, all this is happening as we face something of a credit squeeze (thanks to increased lending standards and greater provisioning for risk-weighted assets) heightened economic uncertainty (slowing GDP growth, lower productivity, wage stagnation, falling property prices), and an upcoming General Election campaign during which the Hayne Report will be held up as a key reason for why “things have to change”. The irony being that, except in a few areas, the complaints aired and wrong-doing uncovered during the Royal Commission could have been addressed by the regulators and enforcement agencies via existing laws on financial services, prudential standards, and general consumer protection (unfair contract terms, unconscionable conduct, deceptive and misleading behaviour). Plus, the Australian Financial Complaints Authority (which combines the remit of the former Financial Ombudsman Service, the Credit and Investments Ombudsman and the Superannuation Complaints Tribunal) has a wide jurisdiction over consumer complaints relating to Credit, Finance and Loans, Insurance, Banking Deposits and Payments, Investments and Financial Advice, and Superannuation. And as with most External Dispute Resolution agencies, AFCA and its predecessors have an obligation to report on systemic issues within their industry.

Next week: Pitch X