Public Sector Journal 38:1

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A specialist publication for everyone with an interest in public management and policy-making. With an independent editor and a stable of great writers, Public Sector covers the events, people and issues that are making news in the public sector.

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Dr Michael Macaulay, Director, Institute of Governance and Policy Studies, Victoria University

Public Sector – Journal of the Institute of Public Administration New Zealand

Volume 38:1

April 2015

PUBLISHER The Institute of Public Administration New Zealand PO Box 5032, Wellington, New Zealand Phone: +64 4 463 6940 Fax: +64 4 463 6939 Email: admin@ipanz.org.nz Website: www.ipanz.org.nz

CONTENTS

ISSN 0110-5191 (Print) ISSN 1176-9831 (Online)

Cover story: The public service: finding the balance......................................... 5–9

The whole of the literary matter of Public Sector is copyright. Please contact the editor if you are interested in reproducing any Public Sector content.

Ngāti Hauā settlement of non-raupatu historical claims Office of Treaty Settlements............................................................................10–11

ADVERTISING Phone: +64 4 463 6940 Fax: +64 4 463 6939 Email: comms@ipanz.org.nz SCOPE IPANZ is committed to promoting informed debate on issues already significant in the way New Zealanders govern themselves, or which are emerging as issues calling for decisions on what sorts of laws and management New Zealanders are prepared to accept.

INFORMATION FOR AUTHORS Public Sector considers contributions for each issue. Please contact the journal’s editor for more information.

SUBSCRIPTIONS IPANZ welcomes both corporate and individual membership and journal subscriptions.

Please email admin@ipanz.org.nz, phone +64 4 463 6940 or visit www.ipanz.org.nz to register online.

DISCLAIMER Opinions expressed in Public Sector are those of various authors and do not necessarily represent those of the editor, the journal advisory group or IPANZ. Every effort is made to provide accurate and factual content. The publishers and editorial staff, however, cannot accept responsibility for any inadvertent errors or omissions that may occur.

Secrets and spies: a conversation with former GCSB Director Sir Bruce Ferguson...........................................................................................12–14 Leading by backing others to win....................................................................15–17 New Zealand’s Official Information Act: Still fit for purpose?.......................18–21 A sticky issue by Dave Armstrong, columnist and playwright...................... 22–23 Point of view: By Dr Chris Eichbaum, Reader in Government, Victoria Business School, Victoria University of Wellington.................................24

N G Ā T I H A U Ā S E T T L E M E N T O F N O N - R A U PAT U H I S TO R I C A L C L A I M S

10–11

L E A D I N G B Y B A C K I N G OT H E R S T O W I N

15–17

JOURNAL ADVISORY GROUP Annie De’ath John Larkindale Karl Lofgren Len Cook Margaret McLachlan Ross Tanner

Guest editorial: A question of governance.............................................................. 4

by Dr Michael Macaulay, Director, IGPS, Victoria University of Wellington

Photo: Office of Treaty Settlements

CONTRIBUTORS Carl Billington Chris Eichbaum Dave Armstrong John Larkindale John O’Leary Margaret McLachlan Michael Macaulay Rose Northcott

IPANZ news: Public sector scrutiny and good ideas............................................... 3

Photo: Ministry of Education

EDITOR John O’Leary: johntoleary@paradise.net.nz

President’s message by John Larkindale................................................................ 2

Front cover image: © Andreyuu | Dreamstime.com - Rope-walker Photo Public Sector is printed on environmentally responsible paper produced using ECF, third-party certified pulp from responsible sources and manufactured under the ISO14001 Environmental Management System.

April 2015 Public Sector 1

PRESIDENT’S MESSAGE

Who are the stewards?

I

n my travels around New Zealand over the past few months I have been struck by the number of organised voluntary conservation efforts throughout New Zealand. As a keen tramper and one who enjoys our environment and the fauna, flora and natural features that make it up, it is wonderful to note (and acknowledge with appreciation) just how many volunteers set and monitor traps for unwelcome predators, remove unwanted and damaging trees and plants, and seek to re-establish areas of native bush, just to mention a few activities. There are groups active from one end of New Zealand to the other. And they are making a significant difference.

The Department of Conservation clearly has the central official role of preserving and nurturing our natural environment. Yet, as DOC frequently acknowledges, so much less would be achieved if their efforts were not complemented and extended by many other organisations, mostly voluntary. That has led me to reflect on just who really has the responsibility for stewardship of New Zealand.

“Stewardship” is a concept that has been enshrined in law in the 2013 State Sector reform legislation. Yet it is a term that perhaps might be interpreted differently by different people.

Indeed, it is just that complexity that lies behind the decision to have this year’s public sector conference focus on this subject. For me, “stewardship” means preserving and, sometimes, enhancing a resource so that it endures into the future. Is the legacy left for future generations no worse than that we have today?

In the case of our natural environment there is an encouraging number of success stories where decades of bush degradation and decline of native species have seemingly been arrested and even turned around. Yet there are also many other areas where decline continues and we have many species of native fauna under threat of extinction. So, is DOC doing enough?

Are the voluntary organisations doing enough? Are we all doing enough? And what indeed is “enough”?

This is a subject that needs substantive debate by the

Evans, Malcolm Paul, 1945- :Nick Smith RMA. 22 January 2015. Evans, Malcolm Paul, 1945- :[Digital cartoons published from 2008]. Ref: DCDL-0030407. Alexander Turnbull Library, Wellington, New Zealand. http://natlib.govt.nz/records/35331370

2 Public Sector April 2015

By IPANZ President John Larkindale community. On the one hand, I’m one of those who believe that prosperous societies are the ones that are most likely to preserve and enhance the environment, and as such national economic growth and wealth generation is a necessary condition if we are to achieve our environmental objectives. On the other hand, economic growth needs to be focused on areas that don’t undermine the very environmental goals that we wish to achieve.

It is only too easy to damage and destroy aspects of our natural heritage, while restoration – even if possible – is a lengthy and costly process. We also need to remember that our environment is a source of economic advantage, both directly in terms of the visitors it draws to New Zealand and as context for the goods and services we produce as a country.

Preservation of our environment is as much an economic essential for New Zealand as it is a moral obligation we have to our descendants.

The Government is bringing forward proposals for amending the Resource Management Act. After nearly a quarter of a century its probably right that the Act be reviewed in the context of today’s requirements.

Is the balance right between preservation of the environment and the desirability of allowing well-grounded construction and infrastructural developments to proceed effectively and efficiently? Are the costs of compliance proportionate to the societal benefits delivered by the Act? How might procedures under the Act be simplified or sped up to reduce costs for both proponents and opponents of specific projects requiring resource consent, while protecting the interests of both? And perhaps most importantly of all, is there evidence that clearly demon-

strates where the current system might be failing New Zealand as a whole?

There have been claims that one of the reasons for New Zealand’s high cost of housing is the extra costs imposed by the RMA. Personally, I don’t think that this has yet been conclusively proved. But even if it a contributor, is this the real issue? Or is it perhaps that, particularly in Auckland, we need to seize the much more controversial nettle of what should a predominantly urbanised society in New Zealand in the 21st century look like?

Auckland, in particular, needs to examine whether it makes economic and environmental sense to grow outwards while overlooking opportunities to increase population density within its existing boundaries.

Possibilities for “brown field” development close to existing urban services need to be looked at carefully and impediments to redevelopment examined and, where possible, reduced or removed. Our urban centres simply cannot continue to expand endlessly taking over land that has conservation or agricultural production values.

We need to ask ourselves, too, whether laissez faire growth for Auckland while other centres either grow much more slowly or even decline is compatible with New Zealand’s long-term interests. While it is indeed important that New Zealand has at least one internationalscale city, this is not a sufficient condition for future economic and social success, and a balanced approach needs to be taken to the way in which we grow. Some difficult choices need to be made if we are to find the best path ahead.

So who should be the stewards of our environment and society? All of us – we all have a part to play.

I PA N Z N E W S

T

he public sector can expect greater scrutiny regarding how expenditure is achieving results over the next few years, the Deputy Prime Minister Bill English said at his IPANZ annual address in February.

“The biggest public sector challenge for the next few years will be adapting our existing departmental systems to focus more on getting better results for New Zealanders,” English said.

Much has been achieved and the next step is to “buy what works” through a budget process called Social Investment. He gave the example of allocating a supervisor to each sole parent claiming a benefit at a cost of $7000 each. This was an individualised service aimed at getting people’s lives back on track and reducing welfare dependency. “It was a risk but it has reduced the numbers of sole parents.”

English says departmental bids

may be tested against external service providers. “They might not have the same barriers that departments do.”

However, he acknowledged the specialist knowledge of the public service about how to use the tools of public finance and accountability. The public service should scrutinise its levels of management and budget delegations so that the right people can make decisions.

“Where the Government wants more delegation and flexibility we’ve had to buy it, by paying extra for new or experimental programmes. We have not yet had much effect on improving the alignment of delegation and decisionmaking in mainstream services.”

He also called for greater willingness to take risks. “If we are going to continue solving more complex

problems, then we all need to continue to develop our toleration of uncertainty.”

The public service believes it’s managing the risk tolerance of politicians.

“Sometimes you’re wrong; I recommend you ask. This Government has shown it will take political risks to execute worthwhile changes.”

The public service was able to use its unique knowledge to help solve more difficult and complex societal problems.

“We need more good ideas, but good ideas die if we can’t change our system to let them flourish.”

The Deputy Prime Minister’s full speech is available at: www.ipanz.org.nz

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Public sector scrutiny and good ideas

GUEST EDITORIAL

A question of governance

By Dr Michael Macaulay, Director, Institute for Governance and Policy Studies, Associate Professor (Public Management), School of Government, Victoria University of Wellington

I

n the last 18 months or so there seems to have been “governance, governance everywhere” in New Zealand, although whether or not there is any drop to drink is open to rather fierce debate. We have witnessed simultaneous hope and despair regarding the state of New Zealand politics, and what can be done to address potentially deep-lying problems.

Perhaps the most obvious issue that has arisen is in regards to Nicky Hager’s Dirty Politics, which rightly or wrongly asks a number of serious questions regarding the distribution of both information and power at the top of New Zealand’s political food chain. We will all have a view on that debate and while we need not have that discussion here, it is crucial to note that this is only the latest story that cuts to the heart of New Zealand’s governance. More importantly, these issues of good governance expand across a much broader horizon than Hager’s book focuses upon.

Indeed, there are many further examples. In December 2013, Transparency International NZ published its very weighty assessment of the state of the country’s National Integrity System: it highlighted a number of areas of concern and made approximately 60 recommendations. Also in 2013 an OECD report found that New Zealand has very little capacity for dealing with overseas bribery or its own international anti-corruption conventions.

This position was reiterated by no less an institution than the Serious Fraud Office, which lamented how few cases it has been given to investigate in terms of corruption and bribery.

The governance and integrity of the public sector has also received some worrying news lately. The recent SSC Integrity and Conduct Survey, published in late 2014, found that 71 per cent of respondents had either not heard of the SSC code of conduct or had heard of it but were not familiar with it; only 43 per cent of respondents felt that their respective agency maintained a good system for recording breaches of integrity and conduct; and only 30 per cent of respondents had confidence in the actions taken by their 4 Public Sector April 2015

agency in cases of a reported breach of conduct. That figure falls to 26 per cent for those who have confidence following reports of bullying and/or harassment specifically.

Initiatives

Clearly there are areas of concern, but there are also reasons to be encouraged. There are currently a number of initiatives that are in place to improve and strengthen governance in New Zealand. The Organised Crime and Anti-Corruption Legislation Bill has currently just passed the Select Committee hearing stage, and is designed to update and strengthen international commitments such as ratification (at last) of the United Nations’ Convention Against Corruption. Quite why it has taken so long to ratify UNCAC is a different matter, as is the possibility of some remaining

loopholes in the legislation. But on a matter of principle it is undoubtedly a welcome step.

Of perhaps even greater significance is New Zealand’s commitment to the Open Government Partnership, which manifested itself in the publication of its inaugural action plan last year. OGP is an international movement of over 60 countries that commits itself to tackling the “grand challenges” of improving public services and public integrity in effectively managing public resources; and of creating safer communities and increasing corporate accountability.

What is most exciting (and challenging) about OGP, however, is not its highlevel commitments, but its grass-root implementation. Successful OGP initiatives in other countries have relied on community and local design and delivery, and there is an opportunity here for New Zealand to revise and revisit its governance arrangements; not just for the present but for the future.

Taking on these challenges requires political will, of course, as well as genuine public support. But on the plus side, it allows for a truly integrated approach – international, national, local and community – and also enables us to act rather than react.

Concerns over integrity will never go away, but seeking to minimise them through new channels is at the very least a powerful statement of governance intent.

THE PUBLIC SERVICE

Finding the balance New Zealand has always prided itself on its impartial, trustworthy public service.

Increasingly, however, there’s a feeling that this impartiality and trustworthiness are being eroded, and that the balance between serving the interests of the minister of the day and serving the public interest is being lost. Editor JOHN O’LEARY looks into the matter.

I

t’s a select club: the handful of nations that tend, year after year, to come top of Transparency International’s list of countries whose public administrations are perceived as least corrupt.

Finland and Denmark are always there, and also New Zealand (last year, New Zealand came in second).

One of the reasons New Zealand scores so well is its tradition of good government. We tend to take the impartiality and trustworthiness of the public service for granted, but acquaintance with the bureaucracy of one of the countries that figure in the lower half of Transparency International’s list will quickly disabuse a tourist or travelling executive of the notion that this is the norm worldwide. It’s not just a question of bribes; rather, it’s a matter of a whole government culture which sees officials beholden to the wishes of powerful politicians and business interests, often to the detriment of the local population.

New Zealand did not always have the kind of permanent, professional public service it enjoys now. In the 19th century for example, individual minsters had the power to appoint public servants, unlike today, where appointments are made by the department. Part-time or temporary public service jobs, moreover, could be awarded by politicians in recognition of services rendered or anticipated, jobs which could then become semi-permanent. Richard Seddon, who served as prime minister from 1893 to his death in 1906, in particular, was notorious for the “placemen” he inserted into the bureaucracy: a departmental head who had the temerity to ask “King Dick” what use a rather ignorant protégé from the West Coast might be was apparently told to “Learn him!” It was a system open to abuse, it was increasingly agreed, and in need of reform.

Change

Things changed with the passage of the Public Service Act in 1912. This was designed to foster a permanent, professional public service that would manage the country according to efficient, “scientific” principles. Out went the placemen and part-time “jobs for the boys”. In came promotion on merit, security of tenure and a system of graded divisions,

all overseen by a Public Service Commissioner who was responsible to parliament. It wasn’t quite the public service of today (for a start, it employed very few women) but it was a giant step towards it, establishing as it did a unified, politically neutral bureaucracy. It was a public service that served the country well through a world war, a depression, another world war and the postwar boom that followed. The men who formed it were remarkably uncorrupt and had a genuine ethos of serving the public.

Things changed again in the 1980s.

A reforming Labour government sought to make the public service more responsive to citizens, ministers and (when it involved trading entities) the market. Thanks to the State-Owned Enterprises Act, some departments became state-owned enterprises; all acquired chief executives on fixed-term contracts whose performance would be measured against clearly defined targets. The old career service security was removed, compulsory industrial arbitration was abolished, and labour relations law that had previously applied only in the private sector was imported into the public service. Some departmental functions were outsourced, leading to a rise in the number of “consultants” (often former public servants). It was the end of “glide time” and the beginning of the slimmed-down, flexible public service we have now, or would like to think we have.

Concern

Recently, however, concern has arisen that the modern public service has lost sight of some of the values that characterised its predecessor. Many of these concerns have centred on the duty of state servants (especially at the senior level) to offer “free and frank” advice to ministers and on the feeling that they are sometimes overly attentive to the wishes of these ministers and their offices. > April 2015 Public Sector 5

THE PUBLIC SERVICE: finding the balance

At a 2013 seminar in Wellington public interest. “Certainly public organised by IPANZ and Victoria servants have to think about the University of Wellington’s IGPS, latter. But at the same time their a public sector worker complained duty is to implement the policy of that the quality of advice was being democratically elected governments.” compromised by the desire to please The episode involving one of ministers. Policy analysis, the worker the country’s security agencies was, claimed, was increasingly being thinks Atkinson, an uncharacteristic “retrofitted” around what ministers exception rather than an indication of Beith Atkinson, Departmental had decided, often in the absence some deep-seated malaise. “Generally, Officer, Department of good evidence, with the result it seems to me, the public service of Corrections and that ministries were now producing in New Zealand is in good stead. author of Integrity Talking Points blog “policy-based evidence” rather than While there have been some cuts in “evidence-based policy.” 1 staff numbers, funding has not been “If there is the Last year, a widely-reported slashed as it has been in the UK, and odd problem... episode involving one of the country’s programmes such as Better Public it can probably security agencies crystallised these Services look likely to go a substantial be addressed concerns, with one journalist way towards a more effective, by schooling opining that the agency in question customer-focused state service. certain public servants in the had become “a political arm of the “If there is the odd problem of constitutional party in power.”2 Another journalist the kind you’ve mentioned, it can niceties of commented more broadly, warning probably be addressed by schooling giving “free that thanks to a “no surprises” certain public servants in the and frank” rule that was being stretched and constitutional niceties of giving free advice.” distorted, public servants were on and frank advice.” a “slippery incline” that was taking Atkinson does, however, believe them from political neutrality to friendship to there is a need for more of a focus on integrity “unacceptable political partisanship”.3 in the public service. “The State Services The impartial and trustworthy public service, Commissioner issued a Code of Conduct in 2007 which has served New Zealand so well in the past, which grouped 18 standards around the four values and helped it to be seen as having one of the least that can be expected of public servants – fairness, corrupt public administrations in the world, seems, impartiality, responsibility and trustworthiness. if you believe these commentators, to be in peril.

The expectation of impartiality covers what we’ve But how real, in fact, is this danger? Have public been talking about: that public servants should servants really forgotten how to say “No, Minister”? maintain political neutrality and provide robust and unbiased advice while respecting the authority of Perception the government of the day.

According to Beith Atkinson, a Departmental “What I’d like to see is these values being Officer at the Corrections Department and author projected more strongly – I’d like to see greater of the Integrity Talking Points blog, the answer is no, emphasis on those 18 standards. They embody the not really. “If the problem exists,” says Atkinson, “I ethos of good government; they are the prescription doubt it’s a large one. for the ethical state servant. At the moment, I don’t “It is true that there’s a notion out there that it’s think this is being done enough.” an issue these days, but I think we’re dealing with perception rather than reality. Are things really Pendulum worse now than they were? I doubt it.

Marie Shroff, former Privacy Commissioner and “We need to be careful about idealising the long-serving Cabinet Secretary, does think there is past and positing some kind of lost golden age of a growing problem. “Of course the public service impartiality and trustworthiness, which implies a has to work hard at serving the government of the meritocracy of mandarins. Fifty years ago people day; but the preserving of an impartial, neutral knew a lot less about the operations of government public service which is fit for purpose to serve a – the Official Secrets Act ensured that. Now, we future government of any stripe is the real test. know much more and tend to be much more “The reforms of the 1980s moved the public critical.” service from an overly input driven, bureaucratic There is always a tension, says Atkinson, between mind-set towards an output-oriented culture, the duty which public servants have to give effect rightly responsive to the priorities of the to government policy and their duty to serve the government of the day.

6 Public Sector April 2015

“But you could say the pendulum come under strong media and has now swung too far in one direction; political attack.” it needs to swing back to the centre.

Difficult as it can be, There needs to be a careful balance “speaking truth to power” is struck between serving the interests of often required, says Shroff. the minister of the day and serving the “A public servant who fails public interest.” to tell the minister, politely Part of the problem, says Shroff, and intelligently, of the is that there has been a loss of implications of a defective Marie Shroff, former Privacy Commissioner institutional knowledge in the public policy idea isn’t doing the service. “In some instances highly country – or their minister “There needs competent public servants have left – any favours. It’s the job to be a careful the service. This is damaging, because of public servants to help balance struck it’s such experienced senior public ministers make good quality, between servants, with a longer time perspective, publicly defensible decisions, serving the who know how to serve ministers with full knowledge of the interests of energetically, but without crossing the options and consequences. the minister political line.”

Offering free and frank of the day Another (cyclical) risk to impartiality advice is to everyone’s benefit, and serving arises when governments enjoy long ultimately, including the the public interest.” stretches in power. “Public servants can minister’s.” become habituated to working with one Fortunately, observes government, one set of policy directions Shroff, New Zealand has and often one minister. They begin to identify an Official Information Act, which means the with the government and the way it does things; workings of government can be inspected in a it’s correspondingly harder to keep a good way that is true of few other countries. “I know distance between the political interest and the some public servants feel that the OIA can wider public interest in free and frank advice.” inhibit the giving of free and frank advice, but A third major pressure, notes Shroff, is the that’s an opinion I’ve never shared. The OIA relentless media scrutiny and “gotcha” news shines a light into how government works; it lays reporting modern governments exist under. bare what advice was given, what decisions were “Ministers and occasionally public servants are taken and so on. It’s a powerful agent in favour under an intense media spotlight, in a way they of good quality decision-making – how can that weren’t a generation ago. It is all too easy to blur be a bad thing?” [For more about the OIA and its the impartiality line when actions or policies use/abuse, see article on page 18]

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April 2015 Public Sector 7

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THE PUBLIC SERVICE: finding the balance

Doing things the Danish way New Zealand came second in Transparency International’s 2014 list of countries whose public administrations are perceived as least corrupt.

But what about the country that came first – Denmark?

Does it have any lessons to teach us when it comes to preserving the impartiality and trustworthiness of the public service?

D

strategies, structural reforms, streamlining projects and a demand for quick answers to difficult questions. “Maybe it has been more in vogue to talk about what needs to be reformed than what needs to be preserved,” he observed (see 2013 Annual Report of Danish Parliamentary Ombudsman, p. 19).

The view that the Danish public service is basically sound is supported by Dr Karl Lofgren of Victoria University of Wellington’s School of Government, who lived for many years in Denmark.

“Apart from the very strong legalist and rule-bylaw tradition, I would say that public service (and public sector) work in Denmark is based on a pretty consistent and socialised set of public sector values including professionalism, transparency and mutual trust between management and staff.

Although not codified as a set of ethical guidelines, there is evidence that managers in particular adhere to these values.

“Trust seems to be a recurring theme, and that’s something I can personally recognise in terms of work relationships. In Denmark it goes without saying that you trust your manager, your colleagues and subordinates. The sector doesn’t need all sorts of integrity systems as most (naturally not all) public sector workers adhere to the values.

“I am not sure that it will stay like this forever, but so far these values seem to have been resilient to change.”

So it seems that Denmark is rather like New Zealand in this respect. Both countries enjoy excellent public administrations, but there exists a similar, continuing discussion on how to best preserve the impartiality and trustworthiness of their respective public services.

© Avmedved | Dreamstime.com - Christiansborg Castle

enmark has always been ahead of the pack when it comes to open and transparent government. It was one of the first countries in the world to establish an ombudsman’s office, in 1955, an institution that has since been replicated across the world (New Zealand set up its own ombudsman’s office in 1962). The Danish ombudsman’s office is an active presence in the country’s government and society and is not afraid to take on high-profile cases involving abuse of power by senior government officials and politicians.

The question of whether the country’s public service was losing its impartiality and trustworthiness came to the attention of the Danish ombudsman’s office in 2013.

This followed severe criticism from the media and the general public because of a number of controversial cases involving key government departments which seemed to suggest that departments’ daily routine had become subject to spin tactics and that political savvy had become more important than professional expertise and objectivity.

The Danish Ombudsman addressed these concerns in his 2013 Annual Report. He found that, fundamentally, the country’s public service remained a good one, with intact public service values.

He did, however, ask whether the verbalisation of basic public administration values has in recent years been overshadowed by media

Pictured above is Christiansborg Castle and the equestrian statue of King Christian IX in the center of Copenhagen, Denmark. Christiansborg Palace is the seat of the Danish Parliament (Folketinget), the Prime Minister’s Office and the Supreme Court.

8 Public Sector April 2015

Like Beith Atkinson, Shroff believes there needs to be greater leadership in projecting the basic public service ethos of practice and behaviour.

“The standards set out in the Code of Conduct need to be made more visible and modelled in action; if necessary, senior officials need to take a public stand for the impartial public service. Public servants, and citizens generally, should be in no doubt about what the public service stands for.” That said, Shroff believes there’s no need to panic. “It’s time, though, to reinforce and preserve the impartial public service and support those many senior public servants who continue quietly and competently to deliver impartial advice.”

name and identity overnight.

Constant restructuring of this kind produces an atmosphere of uncertainty that is not, in my opinion, conducive to preserving the traditional values of the public service.”

Barrie Saunders, former Managing Director, Saunders Unsworth

Vigilance

Eternal vigilance, says Saunders, is what’s needed to make sure advice given to minsters is not fitted to conform to a minister’s “There’s no view. But they must accept bribery, and policies of democratically elected the system by and large governments, and provide is accessible honest advice on how best to and open. implement them, even when But like I said, they are considered second-best preserving the options. impartiality and “It’s important for lobbyists trustworthiness that the public service be smart, of the public impartial and trustworthy service is because public policy is a a matter Hazard contest of ideas, resulting from of eternal Barrie Saunders, who recently interactions between ministers, vigilance.” retired as Managing Director officials and interest groups, and of government relations we need first-rate officials to consultants Saunders Unsworth, has some help moderate that process.” sympathy with Marie Shroff ’s views.

Fortunately, says Saunders, “I think Marie’s right in saying that New Zealand has the Official there has been a loss of institutional Information Act, which helps keep knowledge in public service departments, politicians and public servants honest. with all the restructurings and a model “The OIA has high transaction costs and that encourages officials to change it could be fine-tuned here and there, but ministries to get promotions. fundamentally it’s a wondrous piece of “Then there is the intense pressure on legislation.” ministers from the media, which brings its Saunders feels generally positive about own problems. This is exacerbated by the New Zealand’s public service and the way tendency for opposition MPs, of whatever it does things. “There’s no bribery, and the persuasion, to attack government officials system by and large is accessible and open. for perceived slip-ups. I would not want But like I said, preserving the impartiality to be a departmental CEO.” and trustworthiness of the public service One thing Saunders dislikes are fixedis a matter of eternal vigilance.” term contracts for chief executives. “It Endnotes must make them nervous when terms 1 See Max Rashbrooke, “Can our government are coming to an end, and perhaps, in cope with the 21st century?”, http://www. some instances, a little too eager to please mxrashbrooke.org.nz/2013/can-ourthe minister. This creates a moral hazard government-cope-with-the-21st-century problem, particularly for the younger 2 See Rob Hosking, “SIS report: shocking CEOs whose skills may not fit well in the naivety or toadying by SIS officials”, private sector.” http://www.nbr.co.nz/subscribe/165851 Another thing Saunders sees as a (paywalled) negative is the constant restructuring of 3 See Vernon Small, “Putting the spin ministries that has taken place in recent on ‘neutrality’”, http://www.stuff.co.nz/ decades. “It’s hard to keep up with all dominion-post/comment/63576511/ the changes; a ministry can alter its Putting-the-spin-on-neutrality April 2015 Public Sector 9

Ngāti Hauā settlement of non-raupatu historical claims – Office of Treaty Settlements The Office of Treaty Settlements developed a new initiative that allowed it to settle Ngāti Hauā’s historical claims four times faster than average – in only seven months. This remarkable achievement saw OTS take out the Crown-Māori Relationships Public Sector Excellence Award in 2014. More importantly, it’s meant Ngāti Hauā have a settlement that they can use for their people, and all the Crown agencies involved have proved that openness and a willingness to try something different can lead to dramatic results.

MARGARET MCLACHAN reports.

T

he Office of Treaty Settlements Chief Negotiator Lil Anderson says a strong symbol of the effective relationships built during the negotiation was “Crown officials trooping around Matamata in their gumboots.” The iwi negotiators knew every Crown official by name, and they came and visited the sites under negotiation.

Anderson says these positive relationships were set up from the beginning, helped by the trusted relationship she already had with Ngāti Hauā.

“Before the formal meetings were set up I had a couple of meetings with Ngāti Hauā’s negotiating team. It was clear they were looking at the settlement differently, and we started throwing ideas around.

10 Public Sector April 2015

“We’d need iwi to drop the position [that they would get everything they wanted]. I needed someone brave enough to tell us what they needed in order to settle.”

Ngāti Hauā’s challenge to the Crown

Ngāti Hauā approached the Government with a settlement package and gave a figure ($10–$18 million), based on an understanding of the significance of their historical grievances and other, similar, iwi settlements. They also requested that the negotiations be completed in just seven months.

Anderson says this ambitious timeframe was supported by the Minister for Treaty of Waitangi Settlements, Chris Finlayson and the Minister of Finance, the Hon Bill English, who dubbed the settlement “the rocket docket”. The Government and iwi wanted speedier settlements because at 2008 rates, Treaty of Waitangi negotiations wouldn’t be completed until 2048. Ministers wrote to all agencies involved and asked them to do what they could to make it happen.

While OTS was at the negotiating table, many Crown agencies were involved, for

example, Treasury, Ministry of Education, Department of Internal Affairs, Department of Conservation and the Ministry for Culture and Heritage. Anderson had pre-meetings with several Crown agencies to bring them on board.

The first stage was to work across government agencies to complete due diligence on the cultural and commercial properties proposed to be part of the settlement. This included ownership of pieces of conservation land and restoration of a culturally important whare.

“When we said ‘we want to do something different’, some agencies were worried it would be just more work. We said, ‘what if it wasn’t more work, we could send someone to help you’.

“We found key people within agencies that bought into the vision. OTS seconded staff members to other agencies such as DOC, and departments such as Treasury and Ministry of Education allocated staff to work on the settlement,” says Anderson.

“The iwi was doing the same with their people – they had to sell it to their people. Fortunately, Ngāti Hauā has a good relationship with their community.”

IPANZ Gen-i Public Sector Excellence Awards 2014 winner

Parallel processes

Another new approach for this Treaty settlement involved all milestones being worked on concurrently – rather than the usual successive process.

Ngāti Hauā gave the Crown what was effectively a “terms of negotiation” document.

OTS worked quickly to turn these terms into an “agreement in principle” which was signed

by Ngāti Hauā and the Crown within six weeks.

The technical aspects of drafting the historical account and deed of settlement, negotiating cross claims, drafting legislation, confirming mandate, establishing the postsettlement governance entity and finalising the legislation were completed in parallel.

Anderson says, “It really worked to share the records of negotiation with all parties and seek agreement bit by bit. The Cabinet papers were written collaboratively, with all the agencies, which allowed for a smooth Cabinet approval process.”

The Ngāti Hauā legislation was the first time that a deed and legislation had been drafted in parallel. OTS and the Parliamentary Counsel Office have agreed this as the standard practice for future settlements.

The Crown delivers

The Ngāti Hauā deed of settlement was signed on 18 July 2013 – seven months after their initial approach to the Crown. It included $13 million financial redress and the return of culturally significant sites.

Lil Anderson says, “This project has demonstrated that, when combined with an iwi’s determination to settle, it can be done differently and quickly. The typical timeframe of just under four years can be reduced to seven months.”

This success is being replicated generally in the increasing momentum of settlements, as well as specifically in the acceleration of timeframes for other settlements, such as with Ngāti Rangi who observed the Ngāti Hauā process very closely.

The Ngāti Hauā settlement is not just an example to OTS of what it can achieve, but an example to all iwi with outstanding historical claims. It signalled that when a claimant group demonstrates it is ready and able to settle, the Crown is capable of delivering.

More general lessons for negotiations include providing all parties with the same information at the same time, which gives people the ability to apply it to their respective fields and see they are part of the bigger picture.

Anderson believes there may be an opportunity to apply the approach to other fields of Government, such as social housing.

About the award sponsor Te Puni Kōkiri is the Crown’s principal advisor on Crown-Māori relationships.

They also guide Māori public policy by advising the Government on policy affecting Māori well-being and development. Te Puni Kōkiri means a group moving forward together – it seeks to harness the collective talents of Māori to produce a stronger New Zealand. This award recognises the complex and diverse range of relationships that exist between Māori and Government. The best of these relationships provide the conduit through which Māori can contribute to policy and planning processes in the areas that affect them, and also ensure that Government can meet its own objectives and outcomes.

Left: Ngāti Hauā Tumuaki Anaru Thompson greets Minister for Treaty of Waitangi Negotiations Chris Finlayson at the signing of the Ngāti Hauā agreement, at Rukumoana Marae, near Morrinsville, July 2013.

Photo: Office of Treaty Settlements

April 2015 Public Sector 11

Q & A

Secrets and spies: a

conversation with former GCSB Director Sir Bruce Ferguson For a past spymaster, Sir Bruce Ferguson is refreshingly outspoken.

The former head of the Government Communications Security Bureau talks with ROSE NORTHCOTT on issues ranging from the growing cyber threat to the politicisation of the GCSB. What is the greatest threat to New Zealand’s security? © Annsunnyday | Dreamstime.com - Security Camera Photo

There has been a massive change in threat facing New Zealand in the cyber area. It was something I was keenly aware of when I was at GCSB but it’s now a much more significant and sophisticated threat.

New Zealand and a lot of the western world are trying to catch up from behind with the threat emanating from the entire electronic region – from the personal bank account level to organised industrial crime.

It’s not currently a threat to national security, but ultimately it could be.

Are our security agencies resourced to counter this threat?

It’s all a balance of how much a country is prepared to put into it. Do they need greater powers? I suspect not. They have the capability and resources commensurate with New Zealand’s size.

Does the public understand the security threats facing New Zealand?

“If New Zealand has secrets worth stealing, then they’re worth protecting.”

There is absolutely a lack of awareness of the threats New Zealand faces right across the spectrum of the population and politicians aren’t exempt. In many cases, from each of the political parties I briefed in my time, the ignorance was amazing. There was a lack of awareness of what can be done with simple devices like cell phones and computers. But that ignorance is natural and it’s part of GCSB’s role to educate people.

There’s been a raft of negative publicity surrounding the GCSB in recent years. Has its integrity been damaged?

If the GCSB has lost credibility with the public it’s due to the media and Dot.com, which was a case of inadvertent, but illegal 12 Public Sector April 2015

spying. That’s life and you have to move on.

But the media has made such as big thing of it which has caused the public to lose confidence [in the GCSB]. In my view they should have confidence. Never in my career have I come across a more dedicated team of professionals.

What the media and most New Zealanders don’t understand is that neither the GCSB nor the New Zealand Security Intelligence Service acts on their own volition. Every year they get a statement from the government of the day, setting out in detail what they have to do for the year and the budget.

If the CEO ventures outside the agreed annual plan without authority, they could be prosecuted for a criminal offence, and that has never happened. If any minister says they are surprised [by the GCSB’s actions], that’s simply not true.

What do you say to calls for the GCSB to be more transparent and less compartmentalised?

Transparency is a political game.

New Zealand is better protected if we keep the GCSB working within the law, monitored, but secret. We have ways and means to do that and I don’t believe the public should know a lot of what’s going on.

If the Inspector-General of Intelligence

and Security is neutral, has inspected everything and is totally satisfied the GCSB and SIS are both working within the law, then greater transparency only works against them.

NIWA is a good example. It was good public relations for the prime minister to announce NIWA’s super computer was under attack, but on the other hand the “enemy” realised we’d found them out. If an insurgency into NIWA’s computer was kept secret, we could turn it against the intruder.

The GCSB has to be compartmentalised. When you are working in the security sector the less you know the better. Even as GCSB Director, when I asked to see information classified as top secret I didn’t turn around and say how did you get this? What I did ask was, is this legally obtained with a legal warrant? From my own personal point of view, I couldn’t then inadvertently blab at a cocktail party something that may sound benign, but when taken in full context could be quite revealing.

Has the GCSB become politicised?

Yes, particularly by Ian Fletcher’s appointment process and rushing the new legislation. I don’t think it needs to be or should be politicised.

The process for the new Act was very politicised and rushed and left the Opposition feeling frustrated and unhappy.

One day they’ll become the government and you potentially have an Act that has to be changed because it was rushed.

What can be done to ensure the GCSB is seen as politically neutral?

Move back to a truly independent process for appointing the GCSB Director for starters.

I hope that the appointment of Fletcher’s replacement follows the proper process. After the bloodletting of last time, there are too many people watching to do otherwise.

We also need an inspector-general who is totally independent, appointed by Parliament and not the prime minister. Inspectorgenerals have been retired judges and in my experience I’ve been exceptionally impressed by their neutrality and ability to be a GCSB watchdog. However, it is about perception, and having a parliamentary appointment process ensures neutrality even though it’s there anyway.

Do you think the inspector-general needs more powers and resources, as in Australia?

I think what we have in New Zealand works, but of course they could always ask for more resources. But we don’t want to get to the stage where the inspector-general’s office and the prime minister’s office are dictating how the GCSB and SIS work. That would be very bad in my view. It’s a fine balance.

What role does the Five Eyes play in New Zealand’s state security and, given the imbalance of power, isn’t there a danger that our independence could be compromised?

Five Eyes stems from the Second World

War when you had the US, Canada, UK, Australia and New Zealand working to the same aim in Europe and the Pacific. It is a very particular club where each partner has proven themselves over decades to be reliable and trustworthy, with each partner bringing particular skills to the party.

A power imbalance is always accepted in that sort of organisation, but a set of informal rules we all adhere to means it doesn’t compromise our sovereignty. Formal rules were, we didn’t spy on each other and we assisted each other if asked, provided it was within the laws of your own country. In my view and time at GCSB we never operated outside the law of New Zealand or asked one of those agencies to do that on our behalf.

In my experience in the military and with the GCSB, the intelligence we got was first class, giving New Zealand benefits far in excess of our contributions and alerting us to potential threats.

Does belonging to Five Eyes come with pressure, for example to support the fight against ISIS?

There is an expectation that if you want us to come to your help if you ever need it, be prepared to come to our help. It does raise the risk for New Zealand, but that isn’t a reason to back off. Security is always bought at a cost. If we work on the basis of no risk and let’s not go (to Iraq) because some bad people might not like it, we are simply being cowards. >

April 2015 Public Sector 13

Q & A

It’s been mooted that the strategic review of the GCSB later this year will lead to a merger with the SIS. Is that a good idea?

the GCSB and SIS can better work together and what sort of controls should be put in place around that, because the intelligence area and the cyber threat are changing so rapidly.

Sir Bruce Ferguson was Director of the GCSB from 2006–2011. Prior to that he was Acting Director of the Ministry of Civil Defence after he retired from a military career which culminated in four years as the New Zealand Chief of Defence Force. He is now retired.

© Solarseven | Dreamstime.com - Online Security Technology

In my view I see very little benefit and lots of problems. If you see the CIA and FBI merge then there might be scope for the GCSB and SIS to merge, but that isn’t going to happen.

It has been outstandingly successful in one country where all the intelligence agencies were merged to great political effect into one

organisation – the KGB. It’s a worst case scenario but a good example of how to totally frighten a nation and create and maintain a dictatorship.

A merger would give too much power to the organisation and too much power to the minister involved, whoever that might be at the time.

But a strategic review is overdue. It should take into account major changes that are taking place in the intelligence area and how

The GCSB and the NZSIS “If New Zealand has secrets worth stealing, then they’re worth protecting.”

That’s the strapline on the Government Communications and Security Bureau website, which together with the New Zealand Security Intelligence Service is a key member of the New Zealand intelligence community.

The GCSB employs approximately 300 staff. It’s a public service department whose objective is to “contribute to the national security, international relations and economic well-being of New Zealand”.

The department has three statutory functions: • providing information assurance and cyber security services, keeping confidential government data secure and protecting government agencies and some key private organisations from malicious cyber-attacks or hacking attempts • collecting and analysing foreign

14 Public Sector April 2015

intelligence and providing that to the responsible minister and any person or office holder (in New Zealand or overseas) who is authorised by the minister to receive it • cooperating with and giving assistance to the New Zealand Police, the New Zealand Defence Force and the NZSIS in carrying out their lawful functions, subject to any limitations and restrictions that apply to the other entity.

The department has two communications collection or interception stations: the high-frequency radio interception and direction-finding station at Tangimoana, near Palmerston North, and the satellite communications interception station at Waihopai, near Blenheim.

Unlike the GCSB, the NZSIS is not a public service department; it sits outside the State Sector Act 1988, but it is part of the broader state services.

The NZSIS employs approximately

200 staff and undertakes a range of functions, including: • investigating and reporting on matters relevant to New Zealand’s security • giving advice on protective security measures • conducting enquiries and making recommendations on whether individuals should be granted security clearances • making recommendations relevant to security relating to immigration and citizenship matters • collecting foreign intelligence.

The agency investigates and works to counter a range of threats to New Zealand’s security, which can originate both within New Zealand and externally, including threats from: • terrorism and violent extremism • espionage • foreign interference • sabotage • subversion.

IPANZ Gen-i Public Sector Excellence Awards 2014 winner

Leading by backing others to win

I

n late 2013, the Ministry of Education was facing a “perfect storm” of problems across the education sector – the Novopay debacle, a back-down on a proposal to increase class sizes, Christchurch schools’ mergers and closures, the introduction of National Standards. The

Ministry’s relationship with the sector was at an all-time low and public confidence in the Ministry stood at only 45 per cent.

Secretary for Education Peter Hughes says, “The problem was the style of our interaction with the sector. We saw ourselves as the ‘head office’ of the sector, and they didn’t feel listened to. Things were being done to them.”

When he took on the role as head of the Ministry, Hughes asked leaders and staff to rebuild relationships and gain a fresh mandate. He and Ministry leaders began a series of personal visits to every corner of the education sector so they could listen to concerns.

Not leaders but stewards

The Ministry’s role was redefined – it would no longer claim to be the leader of the education sector.

“We clarified our role from sector leadership into system stewardship. The sector leaders in schools are the principals. They told us ‘Our job is to lead, your job is to stand behind us and back us to win.’”

Hughes says the Ministry was “stretched into a different shape” to meet this revised role.

New teams included “superpolicy shop” Education System Performance, a research and evaluation team, and 10 regional communities (up from four) each headed by autonomous Directors of Education.

A year into the Ministry’s culture change, staff are encouraged to exhibit the desired behaviours (rather than “values”) that will improve client interaction; behaviours like listening, being respectful and

backing others to win. Sector customers can – and do – pull up Ministry staff if they’re not behaving in these ways. Hughes is encouraged by measures, such as school principals’ emails to him including positive comments; sector functions attracting capacity numbers; and more people wanting to work for the Ministry.

The public confidence survey result is now at 65 per cent.

Hughes wants to see it higher still.

Devolved decision-making Part of the shift has been to empower the sector to make its own decisions – backing others to win. Hughes cites the Ministry’s process on search and seizure guidelines. It had a statutory responsibility to draw

>

Photo: Ministry of Education

Two years ago, confidence in the Ministry of Education was at a low ebb. Now sector groups are saying they feel listened to and supported.

What led to this turn-around that saw the Ministry of Education earn the 2014 Justice Sector Award for Integrity and Trust? And what does it mean when the Ministry says it is “leading by backing others to win”?

MARGARET MCLACHLAN finds out.

April 2015 Public Sector 15

Peter Hughes, Secretary for Education, Ministry of Education

“The sector leaders in schools are the principals.

They told us ‘Our job is to lead, your job is to stand behind us and back us to win.’”

up guidelines to implement 2013 legislation on searches carried out on students in schools.

“We began with the usual process of establishing an advisory group and drawing up guidelines. Half-way through the process, the advisory group members resigned on mass – they believed the legislation to be unworkable.

“I invited them to a meeting in my office. Some brought knives and other weapons taken from kids to show how serious the problem was. We determined that schools would be more likely to accept the guidelines if their representatives could lead the design. We stepped back and let them get on with developing the guidelines themselves, moving ourselves into a supporting role.”

Other instances of community-led processes have been the development of guidelines to tackle bullying in schools; and the deaf community determining how their resource dollars could be used. In Christchurch, Hughes met with all school principals after the controversial announcement of plans for post-quake schools, and continued to have monthly meetings with unions and peak body heads. Sector experts have also been seconded into the Ministry on fixed-term project teams.

New focus for the Ministry

Hughes says the Ministry now has a new focus and is responsible for system-wide

policy changes. It’s implementing the biggest change to education since the 25-year-old Tomorrow’s Schools policy.

Investing in Educational Success is a $359 million funding package to establish four new leadership roles for teachers and principals. This is based on research that has consistently shown that the quality of teaching and leadership are the biggest factors in-school for lifting educational achievement.

The package was built on the close understanding of the sector. Many teachers’ unions and principals participated in designing the programme through a working group process with a goodwill that was previously absent. The Ministry has had 90 expressions of interest

The sector speaks Lorraine Kerr, President, School Trustees’ Association

our national conference, Peter [Hughes] and his staff came and spent the weekend with us, updating our members on initiatives like Positive Behaviour for Learning and Investing in Educational Success.

“It all helps to increase the level of confidence we have in the Ministry. I’ve seen a huge change in the way the Ministry staff operate, in line with their motto of ‘backing others to win’.”

“I’ve noticed a huge improvement in the relationship with the Ministry. Previously they aimed to consult but already had their ideas and were just going through the process. This has really improved over the last 12 months. Communication is much more interactive.

“They’re very responsive to our needs; they make themselves available, including at the weekends. For example, at

Tom Parsons, President, Secondary Principals’ Association “From 2013–15 the Ministry has listened a lot more. It’s not lip service when they say they’re working with us, not doing it to us.

There’s been a transition from the old guard to the new guard; and doing it with us is becoming more prevalent all the time.

“The Ministry is living up to its creed, no more so than in new appointments such as Deputy Secretaries Graham Stoop (a former principal) and Lisa Rodgers ‘the data queen’, who’s very practical and provides us with really good, accurate data.”

Photo: Ministry of Education

Paul Goulter, National Secretary, New Zealand Educational Institute

16 Public Sector April 2015

“Things have improved but there’s still an overhang of suspicion about the motives of the Ministry. The messages from Peter’s [Hughes] point of view are getting through but necessarily at the level of middle management. People ask, “Has it really changed or is it temporary?

“We’ve seen a strong attempt to try and consult more; we’ve started talking to each other. There are signs that the Ministry is more open to new approaches. A new culture takes time to change.”

IPANZ Gen-i Public Sector Excellence Awards 2014 winner

organisations should be aware they are monopolies, and have no competitors. Empowering staff who deal directly with clients and competent leadership is more important than in the private sector.

“In the education sector there are 50,000 teachers who are responsible for educating our kids. A big part of the Ministry’s role is keeping out of their way.”

About the award sponsor The concepts of integrity and trust are critical to justice and to New Zealand’s justice institutions. The Justice Sector, which includes the Ministry of Justice, New Zealand Police, Department of Corrections, Crown Law and the Serious Fraud Office, sponsors the Integrity and Trust award to recognise the trust New Zealanders place in the work done by all public servants. This award recognises agencies that demonstrate the highest standards of integrity and a commitment to building trust with the people and communities they serve, in ways that go beyond their everyday obligations.

Photo: Ministry of Education

from clusters of schools for the programme.

The New Zealand Educational Institute rejected the Investing in Educational Success package. It has now agreed to joint working parties with the Ministry, called the Joint Initiative process, to look at further ways to lift students’ educational outcomes.

NZEI National Secretary Paul Goulter says, “The Joint Initiative is about asking the sector, not telling them. It’s an important shift in the government and the Ministry, if it can be carried out.

“The Joint Initiative has early childhood education included in it; it’s about putting children at the centre. We’re pleased the Ministry is prepared to sit down and nut it out.”

The Ministry is also turning its attention to parents of school children. It wants to help them work better with their children’s schools to answer questions such as: “How can I help my child’s learning?”; “How is my child doing?” Parents can expect to see more web and application-based information and resources.

Hughes says public service

2005, the year of Outrageous Fortune. Also the year of The Johnson Group.

Both iconic, both successful, both 100% Kiwi.

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10 great years as the public sector’s recruitment partner.

April 2015 Public Sector 17

New Zealand’s Official Information Act: Still fit for purpose?

New Zealand prides itself on its Official Information Act, which is a major instrument in keeping government honest. But is the Act as it currently stands still up to the job? Or does it simply need better policing and explaining? CARL BILLINGTON finds out.

T

he Official Information Act was established in 1982, replacing the Official Secrets Act 1951 (according to which government information should never be released without specific authorisation). The OIA took the opposite approach, embodied in its principle of availability: “information shall be made available unless there is good reason for withholding it” (Section 4 of the Act).

New Zealand’s OIA went much further than the Freedom of Information legislation common among our international peers nt restrictions.

Repriand with all of their exclusions ber 2014 em ec It viewed transparency as at 7 D and openness of government as central to a healthy

democracy and as enabling individual citizens to participate effectively and have confidence in the administration of national governance.

Recent publicity, however, has raised questions regarding how well this piece of constitutional legislation is understood and enacted by New Zealand officials and ministerial offices. We spoke with Sir Geoffrey Palmer, Queen’s Counsel, and Dame Beverley Wakem, Chief Ombudsman, as they consider the Act in light of today’s environment and some of the potential challenges and “gaming” the Act may at times be subject to.

A ground-breaking Act that’s fallen on hard times?

© Alec051 | Dreamstime.com

“The Act was ground-breaking when it arrived and there was a lot of effort by the government of the time to educate public servants about it. However, what was once a ground-breaking piece of New Zealand legislation has fallen on bad times,” Palmer suggests.

“I think that what has happened is that the Act has become degraded in practice and we need a big effort to revitalise the original vision of the Act to make it something we can be proud of again.

“There are few Acts that are more important to the integrity of New Zealand’s system of governance than this one,” he 1982 ct A n o adds. ti a rm Official Info Chief Ombudsman Beverley No 156 82 19 Wakem’s office is currently ct A ic Publ December 1982 17 nt reviewing OIA practices in the se as of Date see section 1 t en public sector.

She says there is m ce en m Com evidence of variations that have crept Page Contents into people’s understanding about how 4 the Act works and how to apply it.

4 “We also have Title t 4 evidence of people commencemen Short Title and exploiting any13opportunity to game the 1 Interpretation 2 Act. What first drew our attention were Crown Act to bind the 3 numbers of complaints about undue delays 1 Part a ri ite in responding 13 and about people receiving cr d an es Purpos replies well past14the statutory date. The Purposes 14 within 20 days is not a 4 required response lability ial information Principle of avai 15 5 ithholding offic w r target, but an absolutely statutory deadline,” fo s on n as io re Conclusive ficial informat of g in 6 ld ho ith w ss r Ro fo Wakem says. e s th on or as re e, l iu Specia lau, or N 7 ok Islands, Toke “You don’t necessarily have to produce related to the Co 15 ionmaterial in that rmat fo in the time. You just have to l ia Dependency fic of g in ld ho ith w r d] fo ities [Repeale tiv Special reasons ac al ci er 15 8 m m titive co related to compe ial information 17 ithholding offic w r fo s on information as re Other ence of certain 18 9 18 Public ist ex ng ni er Sector April 2015 nc Information co ity un m im 10 st re te blic in Exclusion of pu 11

confirm what you are going to produce, by when and, if you need an extension, to ask for that and say why.

“Some agencies were delaying for legitimate reasons due to the number of parties involved in clearing confidentiality issues and so on, but others were delaying simply because – as the prime minister recently put it – it suited them.”

“Being embarrassed by releasing information is no excuse for not releasing it. The Act is very clear that you will release information unless there are very good reasons for withholding it, as outlined in Sections 6 and 9 of the Act,” adds Wakem.

This raises the question of whether the evidence of game playing and circumventing of the Act points to a weakness in the framework of the legislation itself, or whether the policing and understanding of the Act and its correct application are the cause of the erosion that’s being observed.

Where the problem lies…

Nicola White’s 2007 work, Free and frank: making the Official Information Act 1982 work better, is considered by many as the seminal review of the Act in regard to its continued fitness for purpose. Although White concludes that “the system as it works now is eroding trust in the state sector rather than building it,” she argues that the Act itself is essentially sound but what is lacking is a correct understanding and application of the principles of the Act. John Edwards, reviewing White’s text in a 2008 LawTalk article (19 May 2008), summarises the general theme of commentary on the Act over the last three decades as essentially arguing that “the Act is ok, it’s just the way it is being used and administered – more training is required; if people only knew about the mechanisms in the Act they wouldn’t have these problems.”

We asked Wakem and Palmer for their thoughts on these observations.

“Nicola White’s book was a very good work, which we took as a kind of roadmap,” Wakem notes.

“Over the years, and as budget allowed, we’ve been addressing the issues she raised.

Similarly the Law Commission issued a very good report – The Public’s Right to Know –

in 2012 which also indicated there’s not much wrong with the basic framework, although some of the language might need modernising. It’s still a very sound piece of legislation which I think has stood the test of time but we need to use it properly.”

Palmer echoes these themes, although he takes the suggestion of reform a little further – pointing to comments he made in a speech titled A hard look at the New Zealand experience with the Official Information Act after 25 years (27 November 2007).

“I said then that, after 25 years the Act needs some systematic reconsideration.

My firm view is that the first principles of the Act do not need to change. We should retain the basic framework of the Act because it’s sound, but it needs some adjustment around the edges.”

Palmer goes on to add, “We now inhabit a time when the importance of transparency in government decisionmaking is more important than it was at the time the Act came in. There are all sorts of challenges around the world that mean there are difficulties in rooting out corruption and other problems that beset public administration everywhere. While we are privileged to enjoy a high standard of integrity in the New Zealand public service, the value of transparency should be a prime concern for any democracy.”

“It’s quite significant that the former State Services Commissioner, Dr Mark Prebble, remarked in 2010 that the OIA is ‘the best reform that’s happened during my whole time in the public service. It’s been good for every agency it’s been applied in.’”

Palmer says there has been an attitude in

the last few years of “making sure that less information comes out” and a tendency to game the Act. “We saw complaints in the run-up to the general election about that.”

Gaming the Act?

Palmer says, “The suggestion is that response times are regularly abused and the purpose of that is to avoid political embarrassment – that the older the information is, the less likely it is to be newsworthy.

“The level of difficulty that people have with the Act has got to be reduced, but the problem lies with securing the incentive to reduce that difficulty because I suspect numbers of ministers simply don’t like the Act – when, in fact, what it actually does is increase the public’s knowledge of the public’s own business.”

Where there are questions of propriety relating to the application of the Act, these fall to the Office of the Ombudsman to investigate. Wakem describes some of the approaches they have taken in addressing such matters: “Some time ago we began deeming delays as essentially a refusal to comply, and finding people guilty of breaching the law. This subsequently had an amazing effect on the response rate, which improved enormously. However, it would seem there’s been some backsliding in recent times, which we are working to address.

“I have to say though, it’s not all bad.

I’ve yet to meet a public servant who comes to work and says, ‘How can I screw up today?’ They don’t exist. Within state sector agencies, where we have been able to go in and help provide guidance and training, we see great improvements. There are some great examples of New Zealand agencies taking initiative and embracing the concept

“...We’re working on both sides of the fence to encourage more open conversations about requests between both parties.”

Dame Beverley Wakem, Chief Ombudsman

of Open Government by being proactive in releasing material.

“Yet, there have been significant cuts to the public service and we see a lot of OIA requests being left in the hands of less experienced staff members who often don’t realise that anything you ask for in a government agency is official information and it’s got to be dealt with within the parameters of the Act,” Wakem explains.

“We’re trying to encourage requestors and the media to target their requests more succinctly so it cuts down the barriers to prompt action. We also encourage public servants to go back and ask what it is that the requester really wants to know. It’s a lot quicker for everyone if we help people refine their request. We’re working on both sides of the fence to encourage more open conversations about requests between both parties.

“We’re working with a number of agencies – running workshops and talking to as many staff as needed – to acquaint people with the ins and outs of the Act once again. We’ve done this for the media as well – workshopping examples and real life cases – to try and upgrade understanding and streamline the process of requesting,” Wakem continues.

“The challenge is that we’re not funded to do any of that work. It’s important and we’re clearly the best placed to do so, since we’ve lived with the Act now for well over 30 years. However, it comes at a cost of not doing our primary function – which is complaint handling and systemic review.

The educational work is vital but it means taking people off the frontline, which isn’t ideal,” Wakem explains. >

“It’s quite significant that the former State Services Commissioner, Dr Mark Prebble, remarked in 2010 that the OIA is ‘the best reform that’s happened during my whole time in the public service. It’s been good for every agency it’s been applied in.’”

Sir Geoffrey Palmer, Queen’s Counsel

April 2015 Public Sector 19

“Justice delayed is justice denied and we have undoubtedly been hampered by a lack of resources.”

Alongside the educational work the Office of the Ombudsman is undertaking, Wakem offers an additional suggestion for encouraging greater efficiency and compliance with the Act: “It’s occurred to me that including OIA requests in the conversation when the State Services Commissioner conducts performance reviews with agency chief executives could be a very useful incentive, albeit one they perhaps won’t thank me for,” Wakem adds with a slight smile.

“When the State Services Commissioner conducts the reviews, he might inquire as to how many OIA requests they received, how many were resolved within the specified timeframes, how many resulted in complaints to the Ombudsman and, on review, how many of those were upheld?”

Still fundamentally sound

Ministerial veto Palmer says initially another concern was the use of the ministerial veto. The way the Act was first implemented, the responsible minister was given the final power of veto over any decision of the Ombudsman.

Coming into office as the Minister of Justice in 1984, Palmer was keen to address what he saw as a very tempting conflict of interest.

“In the initial period of the Act, the ministerial veto was exercised 14 times.

The ombudsmen indicated that they didn’t want the veto taken away because it would essentially give the Office of the Ombudsman the power of decision and that was contrary to the character of their role,” Palmer explains.

“What I devised instead was a solution that retained the ministerial veto but required it to be effected by an Order in Council – making it a Cabinet decision.

This meant it was no longer possible for a minister to exercise the right of veto in the privacy of their own office. Interestingly, since that time, the right of veto has not been exercised once.

“My own experience, both as the Deputy Prime Minister and as the Minister of Justice, was that ministers’ did not like this Act. Some appeared to view it as a restriction to their own freedom of action and were not keen for the public to know exactly what they had done in a number of policy debates,” Palmer adds.

“We have had this Act since 1982.

Surely we’ve had sufficient experience with it by now to know that the advantages of the transparency that it promotes are an enormous contribution to good governance.

Lifting the veil of secrecy was not the end

© Roman Milert | Dreamstime.com

Returning to the currency and relevance of the Act itself, Wakem feels it remains a fundamentally sound piece of legislation: “When the Act was introduced it was world-leading legislation – and in many respects it still is. If you look at the Freedom of Information legislation in other countries there are lots of prohibitions on inquiry that we don’t have here.

“The one thing I would like to see strengthened though is the oversight of legislative function – there is a requirement in the Cabinet manual that anybody proposing new legislation should make sure they consult with everybody who might be impacted by any change.

“Sometimes it can feel like we’ve had to run a counter-espionage service to find out what is going on with legislative proposals that affect us, or we’re only remembered at the last minute, which isn’t acceptable.

I would like to see the implications of the OIA and the Ombudsman Act front and centre in consultation on any new legislation,” Wakem adds.

“One key thing that does concern me though is the role of the political advisor.

This issue was outlined in Frank Vibert’s 2007 book, The Rise of the Unelected. It dealt with, among other things, unelected officials who have undue influence where they shouldn’t. The role of the political advisor is clear: they’re concerned for the re-electability of the person they are working for.

“I have no issue with this, but it has no place in the context of the Official Information Act and the availability of information to the public. The OIA exists to enable citizens to understand government policy, the rationale behind it, and to ensure that ‘some light is let in to otherwise dark places,’ as the old quote goes.”

Palmer echoes this sentiment strongly: “This is an important constitutional statute.

It runs to the heart of the functioning of our government and the ability of the public to hold the government to account. It is a fundamental instrument of accountability and because of that it’s vital that it works in an optimum fashion.

“As has already been said, there are many departments that are releasing Cabinet papers and other information online so people can view them and know what was done and how it was done. That’s enormous progress but it is not universally practiced.”

20 Public Sector April 2015

of effective public administration. This Act sits at the very core of our constitution as a democracy.”

An opportunity, rather than an intrusion In fact, Wakem suggests that far from being viewed as an intrusion into their affairs, submissions under the OIA should be welcomed by ministerial officials and government agencies as a positive opportunity to highlight the very good things the organisation is actually doing.

“It’s an opportunity to review their own practice, to do it better. It’s an opportunity to highlight the good things that they are doing that people should know about,” Wakem explains.

“Even though you may be dealing with requesters who can be pretty excited and sometimes pretty angry, they are taxpayers and we are their servants. We should not forget that.

“However irrational they may sometimes appear, there is a genuine complaint or need at the heart of every inquiry, and how you handle that will speak volumes about the efficiency and effectiveness of your organisation and ultimately your reputation, which in today’s world is something we would all guard with our lives,” she adds.

“In our experience, most people who request information really don’t want compensation. They’re not looking to see somebody hang in the public square for this.

What they really want is to make sure that what happened to them won‘t happen to somebody else.”

Recommendations from the Law Commission Despite affirming the sound foundations of the Act, both Wakem and Palmer agree some change is required to ensure the Act functions as intended and is applied consistently across government. The 2012 Law Commission report outlined a range of suggested recommendations to address the concerns that are being discussed here.

Wakem says, “We worked with the Law Commission on that report. As with anyone else there were some things I agree with and some things I didn’t, but I was really disappointed that the Government’s response to it was so tepid. I think it would

“However irrational they may sometimes appear, there is a genuine complaint or need at the heart of every inquiry, and how you handle that will speak volumes about the efficiency and effectiveness of your organisation and ultimately your reputation...” pay to revisit it. It was a really robust review with some really robust suggestions.”

Palmer comments, “The Law Commission provided detailed recommendations to try to encourage the production of more guidelines to lessen the ‘at large’ character of the case-by-case decision-making system. What this sought to produce was something in the nature of a system of precedent as an aid to consistency.

“If those recommendations had been followed it would have proved a much improved Act. It would also have expressly conferred on the ombudsman the function of publishing opinions and guidelines on the legislation and that should be done whatever happens.

“The Government’s response was seriously disappointing. Although it responded affirmatively to some of the major recommendations (improved education and guidance, incorporating the administrative functions of the Courts, and accepting that new commercial protection should be provided), they rejected the coverage to the offices of Parliament, which really is unacceptable.

“It means that the legislative programme of the Government is not available under the OIA. It also rejected the suggestion to create a new oversight office and to combine the OIA with the Local Government Official Information Act. I don’t think that the Government’s response to this will be durable over time,” adds Palmer.

Wakem goes on to outline some of the changes they are making as a result, numbers of which address the key criticisms that have been raised by Palmer and others.

“Since coming into the Office of the Ombudsman, I have taken the view that providing advice and guidance is actually a primary function of ours. We just haven’t always had the resource to do so. Firstly, we’ve put a lot of effort into reconstructing our website – making it more accessible and publishing case notes and principles of

precedence and practice from previous cases.

“Currently we’re working to establish a database that will give us the ability to slice and dice the data from all of the cases and complaints we work on. This will give us a picture for every agency, which is something we haven’t had before. So we’re not only offering greater advice and guidance based on precedent and case history, we are also increasing our ability to monitor and track the response to requests across the sector,” Wakem adds.

“The ability of people to access information they need to function more effectively in society and make sure the democratic process is working is fundamental to the development of trust in government and government processes.

People need to know they can have some input into the system and actually influence events through submissions and other processes of democratic engagement.

“But if you can’t access the information you need in the time that you need it, or if you feel you are at the mercy of the bureaucracy and its convenience, things can start to unravel.

“There are issues for concern, but they have been identified and we are actively working to address them,” Wakem concludes.

Reasons for confidence

“The other thing I think people can take pride in is that we really do have a fantastic public service. People who go into the public service are people who want to make a positive difference. When I look across at some of the challenges that my ombudsmen colleagues around the world face – with levels of corruption that are hard for us to comprehend – we really are blessed here.

“People of integrity and energy continue to want to come and serve in the public service. We have work to do and we have improvements we need to make, but at the same time, it’s not for nothing that we’re at the top, or near the top, of every international transparency index for probity and integrity in public life.”

April 2015 Public Sector 21

A sticky issue Columnist and playwright DAVE ARMSTRONG takes a light-hearted look at the sticky issue of neutrality in the public service.

“Wellington I hate you! I loathe you. Dear God, let this department be decentralised.

Anywhere. Anywhere! Just get us out of Wellington. I’d even settle for Masterton.”

22 Public Sector April 2015

Image: Newspix.co.nz

S

o begins a rainy winter’s Wellington day in Roger Hall’s 1976 hit play Glide Time. Hall’s depiction of a public service full of bumbling and inefficient yet likeable, decent people captured the imagination of the New Zealand public during the big-government Muldoon era, and has become a classic.

For years after, when discussing the politics of the public service, especially during the restructuring that occurred during the 1980s, Glide Time became the given example, the Hallmark of a bloated and moribund public service full of petty bureaucracy and needless red tape. The generation of neo-liberal reformers that followed would cite Glide Time as reality as they chorused that things “had to change”. But as much as people laughed and sneered, there was no doubt about the public service’s political neutrality. The way Roger Hall told it, the public service was useless whoever was in power.

We need our myths in this country (“it’s a great place to bring up kids”) and the Glide Time myth was one we clung to. I’m sure there were stores departments resembling the one where Hugh, Beryl and the other Glide Timers did very little but do the Dominion crossword, chat about sport, gossip, and ring Mum now and again. But even in the ‘bad old days’ there were areas of the public service run very well by competent people.

Unemployment was low and there was a wonderful social equality in a country where your boss might be earning half as much again as you, not 10 or 100 times the amount.

And best of all, for those actually doing real work for the government, there were hardly any human resources or communication departments to deal with.

Even Roger Hall himself is no neo-conservative. At the heart of Glide Time is genuine affection for the characters and the place in which they work. Hall’s later plays, such as Market Forces and The Share Club,

were far more devastating about government restructuring and boom-and-bust capitalism than Glide Time was about 1970s public service.

But cultural myths are not to be tampered with. That’s why many right-wing New Zealanders measure the success of Rogernomics and Ruthanasia by the number of foreign beers that became available for sale in the late 1980s rather than through the sad statistics that show little real growth except in the gap between rich and poor.

I am just old enough to remember some of the non-fictional characters who dominated the public service in the pre-Rogernomics era. Almost exclusively men, they would occasionally appear on TV, often in shortsleeved shirts with a bad tie and shorts and socks. They seemed like honest salt-of-theearth types, though they often displayed an alarming tendency for bureaucratic jargon as they quoted regulations and requisition form numbers at length.

So inspired was I by these types, that I even created a short-lived sketch comedy character, Ken Quango, based on them. Ken was not only a high-ranking public servant but his building’s civil defence warden.

In times of natural disaster, such as during an earthquake or fire, his co-workers could never actually leave his building because there were first so many regulations to adhere to and forms to fill out that eventually everyone would die in the inferno or be crushed in the earthquake because Ken would not allow

them to evacuate until due process had been carried out.

During the mid 1990s I worked for a real-life Ken Quango in a quasi-government department. Fearsomely honest yet always friendly and possessing a great sense of humour, everyone liked Mr Quango. He certainly looked the type. Bad ties clashed with unkempt hair and walk-shorts. While Michael Fay and other Rogergnomes were privatising the economy in their clipped English Christ’s College accents, Quango followed the rules diligently with an unashamed Kiwi drawl.

His prose was occasionally purple and his handwriting unreadable, but in working for Mr Quango I realised much of the public service ethos of the past was a good one, and how much of it had disappeared.

During the 1990s, various government departments, especially the ChristineRankin-run WINZ, were mired in scandals about corporate rebranding, whether expensive TV advertisements were government puff pieces, and large amounts of money being spent on staff travel, perks and bonuses.

It seemed as if the neutrality of the public service was severely under threat.

Meanwhile, Mr Quango would arrange for a few cakes and savouries to be bought for morning tea. At these ‘sticky bun’ occasions, various staff, usually those at the bottom rung of the ladder, would be praised for various duties. I always like a CEO who’s nice to the cleaners.

I didn’t see Mr Quango’s behaviour as Glide Time inefficiency, just good leadership.

In fact, he went on to a very successful international consultancy career, but that doesn’t fit the myth of bureaucratic old-style public servants so I’ll leave you to think that he retired to a large quarter-acre section with a beautiful garden in some provincial town.

When David Lange was elected in 1984, the public service would change forever.

Finance Minister Roger Douglas’s guiding theory was a sort of 1980s version of economic Shock and Awe. You had to reform quickly and efficiently. If you wasted too much time consulting and getting everybody to move with you, the opportunity was lost.

Mad glint

To do this, as far as the newly elected Labour Government was concerned, you needed public service reformers with the same Thatcherite TINA (There Is No Alternative) mad glint in their eye as the minister. Rather than appoint moderate, neutral, level-headed public servants with years of governance experience, the government brought in pinstriped corporate high-fliers like Michael Fay, David Richwhite and Alan Gibbs to do much of the reforming.

Rather than be a conservative voice of reason, the biggest problem that these acolytes of Milton Friedman had with the government was that Labour wasn’t going far or fast enough with deregulation.

It wasn’t past experience that was required to reshape the new nation, it was reforming zeal. “I didn’t have any particular qualifications for the job,” said Rod Deane about being appointed chairman of the State Services Commission. “Roger Douglas said it was time to put some of the theories into practice.”

Deane’s description of rewriting (read: almost eliminating) the Public Service Manual, which had over 2000 “minutely detailed” instructions, many of them ridiculous, makes hilarious reading. “I asked for plans to reform the manual and they said it would take two to three years,” explains Deane in Marcia Russell’s Revolution.

Instead, Deane sent the reformers to a hotel with instructions not to come back until a much simpler version of the manual was produced. “I said make sure you stay at a cheap hotel which is not very pleasant to stay at. So they went up to some hotel in Paraparaumu I think.”

The idea that the Rogernomics reforms were cruel and heartless and only benefitted the rich is a convenient myth for the Left to haul out. Some things, like the way the Post Office would take up to six months to install a telephone, had to change. But the argument remains whether the reforms had to be done so quickly, and whether they only benefitted a small, wealthy elite.

Lefties may rightly argue that the time when our public service was the most politicised was during the Rogernomics era.

Though it was true that many ‘public service’ reformers were ring-ins from the corporate world during that era, I’m not sure that the Right have the monopoly on public service bias.

The first 1935 Labour government found many public servants with a mad glint in their eye, similar to the ones that Roger Douglas found in the 1980s – but the leftwing reforms worked the other way. Bill

Looking at the past makes me think today’s public service is rather, though not entirely, neutral. Perhaps MMP has something to do with it. Since 1996, our governments have been comprised of either coalitions of many parties or minority governments with policy input from support parties. These governing parties have considerable differences, even though they might be on the same side.

Today, a public servant could find themselves spending the morning implementing regulations from a piece of legislation driven by the Māori party, then spend the afternoon deregulating thanks to a different piece of legislation driven by the ACT party.

So how neutral should our public service be? A read of Nicky Hager’s Dirty Politics causes one to greatly worry that a government department (the SIS) passed on politically damaging information about the

While you’re munching away on sticky buns, it might be the perfect time and place to discuss the far more sticky issue of political neutrality with your staff, colleagues, managers – or even your minister.

Sutch, who had a long and influential career in the public service, though not the communist spy that the SIS would have us believe, had strong socialist views and was hardly a bland bureaucrat. Were the radical and inspired educational reforms carried out by C.E. Beeby really the work of a politically neutral policy wonk simply doing what his minister asked? I don’t think so.

Socialist utopia

In Chris Trotter’s excellent Leftie history, No Left Turn, he details the plans that famous Austrian architect Ernst Plishke and Canadian William Robertson – both working in New Zealand as public servants in the late 1940s – had to transform the Hutt Valley into a sort of cooperative socialist utopia. Yes, they were both experts and highly passionate about what they were doing. But they were also being as political as hell.

The decomposing fourth-term Labour government was way too timid for follow through their proposed reforms, and it all became academic anyway when National was elected in 1949.

(then) Leader of the Opposition to the Prime Minister. And giving a governmentfriendly blogger immediate access to the damaging information about the opposition under the Official Information Act, while making the rest of the media wait, is an appalling breach of neutrality.

So, yes, the idea of a neutral public service is a good and noble one. But I can’t help thinking that if I was a Cabinet minister intent on reform, be it a leftwinger eliminating poverty or a right-winger freeing up the economy for more foreign investment, I’d like at least some of the people responsible for actually implementing policy to have a bit of passion for the project.

Perhaps the problem is when a little passion turns into a mad glint in the eye.

So cancel that corporate retreat, expensive team-building exercise or outsourced human relations seminar. Why not buy some cakes and savouries? While you’re munching away on sticky buns, it might be the perfect time and place to discuss the far more sticky issue of political neutrality with your staff, colleagues, managers – or even your minister.

April 2015 Public Sector 23

POINT OF VIEW

New Zealand’s public service is based on the Westminster paradigm of a non-partisan and expert ‘civil’ service. We lose sight of that paradigm at our peril

By Dr Chris Eichbaum Reader in Government, Victoria Business School Victoria University of Wellington

24 Public Sector April 2015

supplanted by other sources of advice. The best of ministers understand the nature of the bargain, as do the best of chief executives.

There are other elements to this bargain as well. The Kingston meeting returned time and time again to the influence that political staffs are having on governance. The reality is that such staff can be an asset, and they can be a liability – at the extreme they can compromise the integrity of public administration and governance. Prime ministers seized with presidential ambitions in terms of the scope or span of their influence and control have created ‘West-Wing’ structures. In Canada there are now 549 political (or ‘exempt’ staff ) in the national government, and 97 of these work for the prime minister. There are issues of scale – but the number has increased by 21 per cent since the change in government.

Research that I have conducted with Professor Richard Shaw of Massey University, suggests that while the introduction of ‘political’ staff (ministerial and prime ministerial advisors) has not produced the kind of egregious behaviour we have seen in other jurisdictions, there is an appreciation of risks and the need to manage those risks.

Moreover, the practices revealed in Nicky Hager’s Dirty Politics and in the Report of the Inspector General of Intelligence and Security into the release of information by the NZSIS in 2011 (http://www.igis.govt.nz/ assets/Inquiries/Final-report-into-the-release-of information-by-NZSIS-in-July-and-August-2. © Daniel Kirkegaard Mouritsen | Dreamstime.com

I

t was snowing in Kingston, Ontario in December. Once the capital of Canada – its proximity to the, at one time, hostile forces of the Unites States to the south was one reason for the shift, initially to Montreal and eventually to Ottawa – Kingston is home to Queen’s University. In December, Queen’s hosted a roundtable meeting. It was a meeting convened under the Chatham House rule (there is only the one). And for two days a collection of senior public servants, former political staff, academics and researchers – including from Britain, Australia, and New Zealand – reflected on a shared administrative and constitutional heritage, on what it is in that heritage that remains relevant and necessary, and the fit between that heritage (or, if you like a set of enduring administrative and constitutional endowments) and the challenges of contemporary governance.

That heritage, and those endowments, are captured in one word – Westminster.

One of the defining elements of a Westminster system is a constitutional bureaucracy with a non-partisan and expert ‘civil’ service. But the text-book definition – and indeed the benchmark and aspiration – is given meaning by the values and actions of those who populate the institutions of government and public administration. And it is fragile, and in a number of jurisdictions it is under pressure and even threat. That is one of the reasons why a group of us convened in Kingston in December. It is also the reason why, in a concerted and pro-active manner, the New Zealand public service needs to reflect on what it means to be part of the Westminster family.

We know that to be effective the public service has to be responsive and responsible.

The art of principled and effective governance rests in doing both. “Too much” responsiveness risks a politicised public service providing only that advice that the government wishes to hear. An ‘independent’ public service that fails to appreciate the importance of delivering on the mandate between government and electors risks being relegated to the margins or even

pdf ) provide real grounds for concern. Indeed, in the latter report the Inspector General notes the absence in New Zealand of a code of conduct for political staff. One takes from her comments that a code may have perhaps prevented the kind of excesses on the part of prime ministerial staff that she notes, in some detail, in her report.

Principles

The State Services Commission has indicated that it intends to develop a code of conduct for such staff. This is a positive move. Codes, in and of themselves have an educative utility.

But it is not possible to legislate a moral compass. Those not guided by principle may well do unprincipled things. Less hypothetically, there is no guarantee that the existence of a code would have prevented the activities and actions that occurred on the ninth floor of the Beehive in 2011 and subsequently. But perhaps a code would have given some public servants pause for thought in their dealings with political staff.

The New Zealand approach to codes of conduct has been characterised as a ‘highroad’ or aspirational one. The existing code evokes standards and values that one should aspire to meet. And there is no reason why a code for political staff should not also evoke these same standards and values – in the final analysis, whether political or non-political, all staff are paid for from the public purse.

When it comes to political staff, recourse to standards and values will not be sufficient.

Some things are “not OK”. It is not OK to collude with a blogger to undermine a chief executive. It is not OK to release private information about a public servant that places that person and his family at potential risk. It is not OK for political staff to be the points of contact between the intelligence community and the ministerial or prime ministerial principal with responsibility for the agencies that make up that community.

Such things are not OK because they threaten good governance. Our shorthand for that is Westminster. At our best we evoke and model Westminster values, conventions, and institutions in Wellington – and we lose sight of that at our peril.

Make a date with IPANZ in

2015

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IPANZ events are a great way to learn about emerging issues in the public sector, to develop professionally, and to network with colleagues.

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