Is Australian Public Service Commissioner John Lloyd under investigation? After initially refusing to answer questions about being under investigation on Monday in the wake of the Canberra Times’ revelation about FOI documents, Lloyd decided yesterday that he was going to answer them, and the answer was “no”.

Earlier yesterday, officials from the Department of Finance said a complaint about Lloyd had been referred to the Merit Protection Commissioner. So Lloyd has been referred for investigation in relation to his emails with the IPA and the fact that Lloyd did research for the right-wing thinktank on taxpayer time, but he says he’s not under investigation. Which of course makes one wonder why he declined to answer in the first place. Possibly just because he’s not under investigation now doesn’t mean he may not come under investigation.

What’s clearer is why he changed his mind about not answering. Witnesses can’t simply refuse to answer questions at Estimates, they have to make a public interest immunity claim that the answer would not be in the public interest. The government decided not to help Lloyd out by making a claim on his behalf.

“I am not inclined to make a Public Interest Immunity claim,” Senate president Scott Ryan — who looks ever more impressive in that role — told the Finance and Public Administration committee late on Monday. “I am not aware of sufficient facts to sustain such a claim.”

He left it open to Lloyd to make a claim because he is a statutory officer. But Ryan had signalled he wasn’t going to make the same mistake as Michaelia Cash had made with Lloyd’s protege Nigel Hadgkiss when he broke the law while heading the ABCC — providing cover for someone whose position might later become untenable.

After lunch yesterday, the government then definitively hung Lloyd out to dry: Finance officials were allowed by the government to name Lloyd as being the subject of an allegation of a breach of the public service code of conduct, obliterating his refusal to answer questions. Later yesterday, Lloyd wrote to the committee redundantly declining to make a PII claim but insisting he wasn’t the subject of an investigation.

Like Hadgkiss, Lloyd is an ideological appointment by the Liberals that in retrospect looks too cute by half. He is an ideological warrior on industrial relations inexplicably given the role of overseeing the public service by Tony Abbott. But he failed to understand that the rules apply to him like they do to any other public servant.

Public servants don’t get to help out their mates in the private sector like Lloyd helped out the IPA. And they don’t get to complain about shadow ministers having a “swipe” at their mates. Nor, after that complaint has been publicly revealed, do they get to complain again about the shadow minister questioning them, which is what Lloyd did in an email to IPA head John Roskam in October. 

How can we be so sure this is a poor fit with the APS code of conduct? Let’s ask none other than… John Lloyd himself. In August, Lloyd released a draconian interpretation of the public service code of conduct in relation to social media that makes clear that his own behaviour doesn’t pass muster. Lloyd’s document explicitly warns against “criticising your shadow minister, the leader of the Opposition, or the relevant spokesperson from minor parties”, because it is “likely to raise concerns about your impartiality and to undermine the integrity and reputation of your agency and the APS generally.”

Lloyd goes on to note “senior APS employees, or employees with a particularly high-profile or specialist role, need to be especially careful in considering the impact of any comments they might make.”

Indeed, John.

“Can I breach the Code through material in a private email that I send to a friend?” Lloyd’s FAQ goes on to discuss. “Yes. There’s nothing to stop your friend taking a screenshot of that email, including your personal details, and sending it to other people or posting it all over the internet.”

Or, for that matter, someone FOIing it.

Still, there’s a bright spot for Lloyd. Should a decision be taken to investigate him, and should it find against him, he’s not subject to ordinary public service disciplinary proceedings and can only be removed from office by the Governor-General after a vote of both houses of parliament on the basis of misbehaviour or physical or mental incapacity.