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University of Otago Law Theses and Dissertations |
Last Updated: 14 April 2024
From State Service to Public Service?
The Potential Legal and Constitutional Effect of the Public Service Act’s Emphasis on Citizenship.
Sanne Vitalis
October 2023
A dissertation submitted in partial fulfilment of the degree of Bachelor of Laws (Honours) at the University of Otago (Te Whare Wānanga o Otāgo)
ACKNOWLEDGEMENTS
To my supervisor, Edward Willis, thank you for all of your guidance, reassurance and encouragement.
To my family for all the support and many late night discussions about the Public Service Act.
Particular shout out to Liesie and Timon for our weekly coffee catch up.
To my friends who spent many hours at central library with me.
To my flatmates for providing a fun distraction from study.
CONTENTS
Introduction 5
A Where did these concepts come from? 17
A Judicial review 30 B The Employment Court 32 C Human Rights Review Tribunal 33 D Ombudsman 34 E Conclusion 35
1 Current legislative framework up to date? 48
1 Implications for Judicial Review? 50 C Public service’s role in supporting the Crown’s relationship with Māori 51 D Conclusion 53
Conclusion 53
Bibliography 56
Introduction
The Public Service Act 2020 (the Act) is notable for being the first time that the purpose of the public service itself has been defined in legislation:1
The public service supports constitutional and democratic government, enables both the current Government and successive governments to develop and implement their policies, delivers high-quality and efficient public services, supports the Government to pursue the long-term public interest, facilitates active citizenship, and acts in accordance with the law.
The Act also, for the first time, articulates several conventions relating to the operation of the public service. These are expressed as five principles that must be upheld to achieve the purpose of the public service. These principles are to: “act in a politically neutral manner”, advise Ministers in a “free and frank” manner, “make merit-based appointments”, “foster a culture of open government”, and “proactively promote stewardship of the public service.”2 The purpose and principles are considered a core part of building a more “effective and unified public service”.3 The stated purpose of the public service reveals a shift in emphasis towards the public interest and facilitating active citizenship.
While prima facie the purpose and principles appear to be very positive and uncontroversial, they are also a striking new feature in the Act. At the same time, the aspirational and open- ended nature of these concepts leaves it unclear what the substantive legal effect of them might be. A skeptical view might dismiss these concepts as just ‘virtue signaling’ with little potential to make any real change. Alternatively, a more optimistic view might see these things as heralding an important shift towards a strengthened public service ethos and a renewed focus on openness and serving the public. Regardless, enacting framework legislation for the public service does not happen very often, and amendments aside, New Zealand’s public service legislation has only been changed four times in the last one hundred and eleven years. It is, therefore, worthy of more than a superficial appraisal.
1 Section 11.
2 Section 12.
3 (21 November 2019) 743 NZPD 15350.
However, to date, little has been written about the Public Service Act’s purpose and principles aside from the Public Service Commission’s publications and Cabinet papers. While there is some emerging academic literature in relation to the Act, these are primarily from a public administration/public management perspective.
The aim of this dissertation is to contribute an analysis from a legal perspective and respond to the skeptical view that could be taken when looking at the purpose and principles. It will take a particular focus on the open government principle. As it reflects both the public interest and the facilitation of active citizenship. This dissertation argues that there is reason to be optimistic about the potential for the purpose and principle of open government to have substantive legal effects. Further, these provisions have important constitutional implications. However, the extent of the substantive impact is dependent on those who are responsible for implementing the principles doing so in a way that adheres to the spirit of the provisions and not just the letter.
To make this argument this dissertation is split into five parts. Part I describes the Public Service Act, what its new features are and who is responsible for bringing them into effect. Part II investigates what the new provisions are intended to achieve. This requires looking into the evolution of New Zealand’s public service and the public administration/management theories that have underpinned it. Part III considers whether the responsibilities to uphold these new provisions could be subject to outside scrutiny by assessing the role that different courts, tribunals, and the Ombudsman might have. It concludes that these institutions are only likely to have a peripheral role. Despite this Part IV draws on symbolic legal theory to argue that these provisions have the potential to have substantive legal effects and constitutional implications. Finally, Part V speculates on what these findings could mean in practice.
I Features of the Public Service Act 2020
The Public Service Act is anticipated by officials to deliver ambitious changes to how the “public service operates and delivers services to the public” and that “in its widest reach, it will affect all citizens”.4 Hence, the new features of the Act and how they are given effect to is crucial to understanding how the Act seeks to make these changes.
4 State Services Commission Regulatory Impact Statement: State Sector Act Reform (17 June 2019), at 152.
The Public Service Act has a very different structure from its predecessor the State Sector Act 1988. The State Sector Act did not define the purpose of the public service other than in terms of defining the organisations that are the public service, namely, that the “public service comprises departments”.5 In fact, the State Sector Act does not begin with provisions that concern the public service at all. Instead, it begins by setting out the role and functions of the State Services Commissioner.6 Nor does part 2 of the State Sector Act set out any principles of the public service or articulate any values. However, it does provide for the State Services Commissioner to issue standards of integrity and conduct (a code of conduct) that is included in the employment contracts between a department’s chief executive and their staff.7
The absence of any specific legislative provisions in relation to the public service purpose, principles, and values, likely reflects the fact that there were already several sources governing the ethics of the public service. These included: constitutional and political conventions, public expectations, professionalism and the employment relationship between chief executives and public servants (which incorporated the code into employment contracts).8 Certain fundamental principles such as political neutrality are not specifically articulated in the State Sector Act and exist for the most part in the realm of convention. However, the State Sector Act’s purpose does include reference to the need to “promote and uphold a State sector system that maintains political neutrality”.9 Additionally, it sought to prevent political appointments of individual staff through the requirement that chief executives must “act independently” in relation to employment matters,10 and that appointments were based on merit.11
5 Section 27.
6 Sections 4-26.
7 Public Service Legislation: Paper 2 – A unified public service (26 June 2019) CPC-19-SUB-0007 Summary, at [13.2].
8 State Services Commission An introduction to the Guidance Series ‘Public Service Principles, Conventions and Practice’ (September 1995), at 6.
9 Section 1A.
10 Section 33.
11 Section 60.
In comparison, the Public Service Act starts with a provision that state that the Act’s purpose is to “continue the public service and modernize its operation while recognizing and enhancing the non-legislative conventions that it operates under”.12 It also aimed to establish new “ways of working, including across public service agencies, to achieve better outcomes for the public”.13 This can be contrasted with the closest equivalent provision in the preceding State Sector Act which aimed to promote the “collective interests of government”.14
In the Public Service Act, the public service is the focus of part 1. This part defines the public service not just in terms of the organisations that comprise the public service, but also sets out its purpose.15 As noted above, the Act’s purpose indicates that public service ethics continue to exist in several sources. However, the Act identifies certain conventions related to the public service and articulates them as “public service principles”. It also codifies values relating to standards of integrity and conduct.16 This is intended to “strengthen the underlying ethical foundations of the public service and pre-emptively protect current conventions from erosion”.17
Part 2 of the Act then establishes the ability to set up collaborative mechanisms such as interdepartmental executive boards and interdepartmental ventures to join up department’s activities, functions, and responsibilities.18 This is to enable public service agencies to better work together to join up around the needs of citizens and deliver better outcomes collaboratively.19 Part 3 describes the leadership of the Public Service in hierarchical order, beginning with the Public Service Commissioner, Deputy Public Service Commissioners, public service chief executives, system leaders and the Public Service Leadership Team. This is a very different structure when compared to the State Sector Act. It is one that cascades through the public service as a collective organization with a common purpose, elaborates the public service ethos, includes mechanisms for improved collaboration, and provides a
12 Section 3.
13 Section 3(c) (emphasis added). 14 Section 1A(b) (emphasis added). 15 Sections 10, 11.
16 Sections 12, 16.
17 Public Service Legislation: Paper 2 – A unified public service, above n 7, at [2], [4].
18 Sections 25, 31.
19 (21 November 2019), above n 3.
hierarchy of leadership, including collective leadership of the Public Service. Part 1 of the Act, with its purpose, principles and values reflects this leadership paradigm.20 This has many similarities with organizational management/corporate documents.21 In effect, it provides a vision, mission and values that serve as the culture of the organization (in this case the ethos of public service).
Another change from the State Sector Act is that Crown agents are included in the definition of public service agencies for the purposes of subpart 2 and subpart 4, alongside departments, departmental agencies, interdepartmental executive boards, and interdepartmental ventures.22 This is a shift from the approach under the State Sector Act which treated Crown Entities as “arm’s length” bodies subject to an entirely separate legal scheme under the Crown Entities Act 2004. Subpart 2 of the Public Service Act applies provisions relating to the purpose, principles, and the spirit of service, to Crown agents, and subpart 4 applies the public service values. Of the 11 submissions the Commission received on this issue, only 1 was supportive of the proposal.23 However, the Commission suggested it be included nonetheless because Crown agents give effect to government policy, are not generally perceived by the public as separate from the rest of the Executive, and including them promotes unity across the public sector.24 However, Crown agents “continue to exist outside the legal Crown” with the governance model preserved, and no change to the Crown agent’s other “legal functions, powers, duties responsibilities, or relationship to the Minister”.25
In the Regulatory Impact Statement for the Public Service Bill, the Commission argued that the 1988 reforms were not “based on ideas of a unified service or collaborative behaviour as a whole” and this is part of the reason that reform was necessary.26 That is not to say that the Public Service Act is the first attempt at improving public service unity and collaboration. In 2013, the State Sector Amendment Act introduced a duty on the Commissioner to “promote
20 (21 November 2019), above n 3.
21 Akeem Taiwo, Fatai Lawal and Edwin Agwu “Vision and Mission in Organisation: Myth or Heuristic Device?” (2016) 4(3) The International Journal of Business & Management 127, at 128.
22 Section 10(b).
23 Public Service Legislation: Paper 2 – A unified public service, above n 7, at [78]. 24 Public Service Legislation: Paper 2 – A unified public service, above n 7, at [80]. 25 Public Service Legislation: Paper 2, – A unified public service, above n 7, at [84]. 26 At 9.
the spirit of service to the community and promote the spirit of collaboration among agencies” and thereby support a cultural shift in the Public Service.27 The Public Service Act certainly goes further than this by providing for structural tools of working together (such as the ability to create interdepartmental executive boards).28 However, it was recognized that these new structural tools would not be sufficient on their own. A cultural shift was needed based on strong leadership underpinned by a common purpose, principles, values, and shared public service ethos occurring simultaneously.29
The Public Service Act is underpinned by a leadership model with the public service leaders envisaged as being the primary actors in bringing in the new features of the Act.30 As such, the Act provides a framework for enabling that leadership.31 The Act sets out specific legal responsibilities for upholding the public service principles. In the case of public service departments it is the responsibility of chief executives to uphold the principles when “carrying out their responsibilities and functions”.32 Additionally, chief executives are responsible for ensuring that the agencies they lead also uphold the principles.33 The Regulatory Impact Statement suggests there was consideration of whether to place the obligation on all public servants. This option was not proposed because it was recognised that different interpretations of what the principles meant could lead to conflicting interpretations between management and staff.34 With the legal responsibility sitting with leaders, such as chief executives, it is envisaged that the conventions will continue to operate and guide public servants in their everyday roles to support leaders to discharge their responsibilities.35 Chief executives as part of the public service leadership team can work together to ensure that the principles are consistently applied
27 Sections 5, 11.
28 Sections 3(c), 25(a), s 32(a).
29 (21 November 2019), above n 3.
30 Note “leaders” includes: the Public Service Commissioner, Deputy Public Service Commissioners, public service chief executives, system leaders and the Public Service Leadership Team.
31 Public Service Legislation: Paper 2 – A unified public service, above n 7, at [41].
32 Sections 12(2), (3), (4), (6). (Note: this also extends to public service agencies as defined in s 10(a))
33 Section 12(2)(b).
34 State Services Commission, above n 4, at 26.
35 State Services Commission, above n 4, at 28.
across the whole public sector.36 Boards of Crown agents are responsible for “ensuring that the entities they govern uphold the public service principles when carrying out their functions”.37 For Crown agents it is the entity (and the staff employed by the entity) that must uphold the public service principles. The Crown agent board itself is not required to uphold the principles. However, as will be discussed below, Crown entity boards are subject to a “Code of Conduct for Crown Entity Board Members” issued by the Public Service Commissioner under s 17(3).38
The Public Service Commissioner has a significant role under the Act for ensuring that public service leaders uphold the principles, how the principles are interpreted, and how they will be applied. Section 12(5) states that “a chief executive, an interdepartmental executive board, and a board of an interdepartmental venture are responsible only to the Commissioner for carrying out the responsibility to uphold the public service principles”.39 In contrast, boards of Crown agents are responsible to the Minister in accordance with s 58 of the Crown Entities Act 2004.40
The Commissioner also can set minimum standards of integrity and conduct relating to the principles.41 The Commissioner can decide who the standards will apply to,42 grant exceptions,43 and can vary their application to particular individuals, groups or agencies as the Commissioner “thinks fit, in light of the legal, commercial, or operational context”.44 The standards can also be applied to a wider group than just public service agencies. This includes “Crown entity companies in which the Crown is a majority or sole shareholder (under s 4A of the Public Finance Act), and the Parliamentary Counsel Office”.45 However, the
36 Public Service Legislation: Paper 5 – Leadership of the public service (26 June 2019) CPC-19-SUB-0010 Summary, at [2].
37 Section 12 (6).
38 Code of Conduct for Crown Entity Board Members (Te Kawa Mataaho Public Service Commission, 19 April 2021).
39 Emphasis added.
40 Public Service Act, s 12(7).
41 Sections 12, 16.
42 Section 17(1).
43 Section 18.
44 Section 17(3).
45 Section 17(2).
Commissioner’s jurisdiction excludes, “tertiary education institutions, and Crown Research Institutes”.46 The Commissioner must notify the agencies that the standards will apply to, consult with those agencies on the proposed content of the standards, and the minimum standards and variations must be in writing.47
While the Board of a Crown agent is only responsible to the relevant Minister, the boards of Crown entities (including Crown agents) are subject to a code of conduct issued by the Commissioner.48 Responsibility for interpreting the code of conduct remains with the Public Service Commissioner. Therefore, in practice, a Minister can ask the Commissioner for advice on any potential breach of the code of conduct by a Crown agent board member. This occurred in the recent case of Te Whatu Ora Health New Zealand Chair Rob Campbell. In this situation, Health Minister Ayesha Verrall asked the Commissioner’s advice on Campbell’s LinkedIn post.49 The Commissioner, Peter Hughes, gave his view that the posts were in breach of the code of conduct that applied to Campbell and “demonstrated a failure to uphold the public service principle of political neutrality” that applies to Crown agencies.50 This advice ultimately lead to Campbell’s dismissal by the Minister. Hence, the Commissioner has a primary role in enforcement whether directly in the case of chief executives (as their employer) due to the responsibility specified in the Act or, indirectly, by providing advice to Ministers in the case of Crown agent board members.
It is not new that the Public Service Commissioner has a lot of discretionary powers under the Act (this was the case under the State Sector Act as well). However, making chief executives accountable to the Commissioner for upholding the principles bucks the traditional emphasis on vertical accountability where chief executives are usually directly accountable to a Minister and thereby to Parliament to ensure compliance. The Commissioner is appointed by the Governor General on the recommendation of the Prime Minister, who is required to consult with the leader of each political party represented in the House.51 The Commissioner’s
46 Section 17(2).
47 Sections 17(4)-(7).
48 Section 17(3).
49 Thomas Coughlan “What the Public Service Commissioner Told Ministers about sacking Rob Campbell” The New Zealand Herald (online ed, Auckland, 2 March 2023).
50 Coughlan, above n 49.
51 Public Service Act, s 42.
independence is also protected by specific provisions that set a high threshold for removal.52 Given these provisions protect the independence of the Public Service Commissioner, chief executives are responsible to the Commissioner (not the Minister) for upholding the principles. This change recognised that by upholding the public service principles a chief executive may serve the public interest rather than the Minister’s interest per se. For instance, the requirement to provide “free and frank advice” may result in advice being provided that is not something that a Minister wants to hear. However, there is public interest in ensuring the Minister is making decisions with access to full information and advice (including the pros and cons of proposals). A further feature of the responsibilities is the wording of particular principles, such as the open government principle. The principle states a requirement to “foster a culture of open government”.53 This recognises that public servants do not have full control over the ‘openness of government’ as it is a shared responsibility with Ministers who control budgets and can influence how ‘open’ they will be.54 For example, Cabinet papers are considered Minister’s papers and therefore it is ultimately up to Ministers to decide if they proactively release them.55
The Public Service Act exhibits a system of responsibilities that are in effect a self-contained model of accountability. It places responsibilities on chief executives and other actors and makes them accountable directly, or indirectly (in the case of Crown agents), to the Commissioner. However, for an Act that appears to be more citizen-focused, it provides few explicit levers for the public to hold the public service directly accountable or challenge the Commissioner’s interpretation or application of the principles. This may reduce the potential practical effect of the reforms, given that the principles are a key vehicle through which the purpose of the public service is achieved including its role in “facilitating active citizenship”.
52 Public Service Act, sch 4 (see the provisions relating to appointment and removal of the Commissioner).
53 Section 12(1)(d).
54 Resourcing of agencies can influence Official Information Act administration.
55 Cabinet Office Cabinet Manual 2023 at [3.21], [23.4] (Although there is a requirement in the that “All Cabinet and Cabinet committee papers and minutes must be proactively released and published online within 30 business days of final decisions being taken by Cabinet, unless there is good reason not to publish all or part of the material, or to delay the release beyond 30 business days” but “ultimately the decision is the Ministers”).
The Regulatory Impact Statement for the Public Service Bill clearly shows that the risk of legal action in relation to agencies application of the principles was considered, and an explicit attempt was made to minimise that risk.56 This is evident from the wording in s 12(5) that leaders such as chief executives are “only” responsible to the Commissioner for carrying out their responsibility to uphold the principles. This is also apparent in the change from the initial idea that three of the principles would be “independent duties” on chief executives (political neutrality, free and frank advice and merit based appointment).57 Presumably the shift from independent statutory duties to responsibilities owed only to the Commissioner sought to reduce the possibility of challenge through the Courts. Hence, the Act is not only underpinned by a leadership model but also heavily relies on it for any changes to be made in practice.
That being said, the Public Service Act, when compared to the State Sector Act, is arguably more transparent about who is actually responsible for upholding the conventions of the public service, and what some of those core conventions might be. Under the State Sector Act, the arrangements were unclear, with public service ethics relying at times on multiple unwritten sources. Some of this was included in guidance that accompanies the “Standards of Integrity and Conduct” issued under s 57 of the State Sector Act 1988.58 While the guidance added to the understanding of the code of conduct, it remained guidance rather than an authoritative statement of how the Code would apply.59 Arguably, for both public servants and members of the public, part 1 of the Act makes it much clearer what Parliament considers the purpose of the public service to be and core principles and values public servants are expected to uphold. It also clarifies who is responsible and to whom those responsibilities are owed.
The Commissioner is also not completely unsupervised in the exercise of his/her discretion. While the Commissioner does have some statutory protections they are ultimately accountable
56 State Services Commission, above n 4, at 37.
57 Public Service Legislation: Paper 1 – Overview of proposals (26 June 2019) CPC-19-SUB-0006 Summary, at [53].
58 Te Kawa Mataaho Public Service Commission “Standards of Integrity and Conduct”
<https://www.publicservice.govt.nz/guidance/guide-he-aratohu/standards-of-integrity-and-conduct/>
(At the time of writing the 2007 Code still applies. The Public Service Commission’s website notes that “a refreshed code reflecting principles, values and language used in the Public Service Act 2020 is in development”).
59 Guidance: Understanding the Code of Conduct (Te Kawa Mataaho Public Service Commission, 29 October 2010).
for their performance to the responsible Minister (the Minister for the Public Service). This includes a responsibility not only for the Public Service Commission as an agency but as the employer of chief executives and for managing their performance on behalf of Ministers.60 There are also two new requirements in the Public Service Act that improve public access to information relevant to the operation of the public service and the public interest.
The first is the requirement on the Public Service Commissioner to give a briefing to the Minister on the “state of the public service at least once every 3 years”. This includes an assessment of “whether and the extent to which: the public service is achieving its purpose, and public service chief executives, public service agencies, and Crown agents are upholding the public service principles”.61 The Minister “must then present a copy of the briefing to the House of Representatives as soon as reasonably practicable after receiving it”.62 This brings in a degree of political pressure and scrutiny into the Commissioner’s assessment from Parliament. It also creates an incentive to continue to progress the changes. However, self- reported briefs can be problematic, as McLean argues, it “creates incentives for everyone to claim that the system is working when it is not improving real outcomes”.63 The Public Service Commission released its first State of the Public Service Report in December 2022.64 A superficial assessment of the report suggests that McLean’s concerns may be overstated in that the first report issued contains both positive assessments and clear areas for improvement.65 However, this concern might become apparent as future briefs are issued.
The second is the requirement that all public service departments prepare a “long-term insights briefing”.66 Chief executives must independently create and provide long-term insights briefings every 3 years to the Minister.67 These briefings have a dual purpose in that they help
60 Section 44.
61 Schedule 3(16).
62 Schedule 3(16)(5).
63 Janet McLean and Mark Tushnet “Administrative Bureaucracy” in Mark Tushnet, Thomas Fleiner and Cheryl Saunders Routledge Handbook of Constitutional Law (Routledge, London, 2013), at 126.
64 Peter Hughes Te Kahu Tuatini State of the Public Service (Te Kawa Mataaho Public Service Commission, December 2022).
65 Peter Hughes, above n 63, at 11.
66 Schedule 6(8).
67 Schedule 6(8).
ensure quality and consistency of long-term insights to Ministers and are also made public to help support an “informed citizenry”.68 The Public Service Act requires chief executives to undertake public consultation on the proposed topics for the briefing and on a draft version of the briefing before it is finalized.69 Chief executives are also required to “take into account any feedback received from public consultation” when finalising the briefing.70 The Commission consulted on the topic for its long-term insights briefing and public feedback revealed that citizen participation was one of the areas the public wanted covered.71 The briefing ended up covering this topic.72
The Act brings into law several concepts about the public service and how it ought to operate. It then sets up a leadership structure to give effect to these new concepts, with the Public Service Commissioner at the top. The Commissioner is subject to certain periodic transparency requirements which means they will need to ‘front up’ for their actions to Parliament (through the relevant Minister). The briefings and reports required under the Act also enhance public scrutiny. Outside of these political forms of accountability, there appears to have been a conscious effort made to minimise the opportunities for outside legal challenge. It is also still unclear from the bare wording of the purpose or principles what they mean and what we would expect to see from Public Service leaders. To understand the underlying concepts in the Public Service Act reflected in the purpose and principles, we need to go beyond the Act itself.
II What would we expect to see the purpose and principles doing?
68 Rodney Scott Service, citizenship, and the public interest: New Public Service and our public service reforms
(State Services Commission, Discussion Paper, 28 November 2019), at 9.
69 Schedule 6(9).
70 Schedule 6(9).
71 Long-Term Insights Briefing Summary of Submissions on Subject Matter (Te Kawa Mataaho Public Service Commission, October 2021).
72 Te Kirirarautanga: Te Whai Wāhitanga Tūmatanui ki Te Kāwanatanga Anamata Enabling Active Citizenship: Public Participation in Government into the Future (Long-Term Insights Briefing) (Te Kawa Mataaho Public Service Commission, June 2022).
The Public Service Act is a further evolution of New Zealand’s public service and builds on the foundations of its predecessors. This part traces some of the key theoretical shifts in this evolution to shed some light on the aims of the concepts referred to in the Public Service Act. It is acknowledged that there is a range of competing literature and theories of public management in New Zealand. It is also apparent that reform in New Zealand has not been a simple transition from one set of ideas to the next.73 With these caveats in mind, three public management theories will be discussed that have influenced the thinking behind New Zealand’s public service legislation. They are Traditional Public Management, New Public Management and the most recent (and emerging) New Public Service.74 Each theory will be briefly discussed in turn to illustrate the key shifts, particularly in the relationship between the public service and the public.
Traditional Public Administration theory draws from ideas of scientific management that included the separation between policy, being the responsibility of Ministers, and administration, being the role of the public service.75 The theory assumed a representative form of democratic government. The public’s fundamental role was to vote for individuals to represent them.76 Thus, the most appropriate role for public servants was to administer policy as defined by elected representatives with limited room for discretion.77 Under this model the public are viewed as “clients” receiving services that have been defined and determined by elected representatives.78 As public officials were appointed rather than elected, promotion and employment was to be based on merit.79 The structure of the public service was based on a
73 Scott, above n 68, at 4.
74 Te Kawa Mataaho (Public Service Commission), above n 73, at 19.
75 Janet Denhardt and Robert Denhardt The New Public Service: Serving not steering (M.E. Sharpe, Inc. the New York, 2007), at 7.
76 Scott, above n 68, at 16.
77 Janet Denhardt and Robert Denhardt, above n 75, at 6.
78 Scott, above n 68, at 16.
79 Harrow Höpfl “Post-bureaucracy and Webers “modern” bureaucrat” (2006) 19(1) Journal of Organizational Change Management 8, at 11.
Weberian bureaucracy that involved a strict hierarchy, clear division of labour, and operated based on impersonal rules and procedures applied uniformly.80 Public servants were under the strict control and direction of their Minister. This would ensure they could be held accountable as agents of the Minister who was in turn responsible to the public through the legislature. 81
Many of these ideas are reflected in the Public Service Act 1912 (the 1912 Act). Before the 1912 Act, concerns about civil service political patronage and corruption had been a significant issue. As a result, the Government’s ability to be seen as legitimate or trusted with public funds was severely undermined.82 The 1912 Act removed the authority of Ministers to appoint, promote, dismiss and fix salaries. Instead these powers were transferred to an independent Public Service Commissioner.83 The basis for the new model was established with an emphasis on merit-based appointment and promotion, and political neutrality as a core part of the 1912 legislation.84 The Commissioner (and his assistants) oversaw the public service through a wide range of powers including the employment of public servants.85 Political neutrality was maintained by clear offence provisions for attempts to politically influence the Commissioner in the employment or promotion of public servants.86 A breach of this offence would result in a fine of 50 pounds or even risk immediate dismissal if the offender was a public servant.87 The Commissioner also had the ability to investigate departments to ensure “a proper standard of efficiency and economy in the Public Service” was maintained.88 Direct political accountability was formally set up by placing Ministers explicitly in charge of their departments and the public servants that administered their policies.89
80 Höpfl, above n 79, at 11.
81 Janet Denhardt and Robert Denhardt, above n 75, at 7.
82 State Services Commission 100 Years of Public Service: A centenary celebration of New Zealand’s State Services Commission (New Zealand Government, April 2013), at 9.
83 John Martin, Parliamentary Historian “Patronage and ‘scientific’ bureaucratic rationalism: The Public Service Act 1912” (Presentation for IPANZ, MCH seminar on the Public Service Act 1912, October 2012), at 12.
84 Section 6.
85 Sections 35-40.
86 Sections 6.
87 Sections 6(2), 6(3).
88 Section 7.
89 Section 3.
These arrangements meant that the relationship between the public and public service was an impersonal one focused on the fair application of rules to members of the public. Outside the contact with government-provided services, public participation was primarily through voting in elections. The public service was more focused on understanding the will of elected representatives and following their direction rather than being focused on the needs of the public. If the public was involved it was limited to consultation.90 The public’s ability to participate was also severely limited by the Official Secrets Act 1951 which prevented official information from being released to the public, evading public scrutiny.
Many of the features of traditional public administration were further strengthened in the 1912 Act’s successor, the State Services Act 1962 (the 1962 Act). The title of the 1962 Act itself reflects a shift in the language from being ‘in service to the public’ to being ‘in service of the State’. The Act added that the public service was “imbued with a spirit of service to the community”, for the first time stating a sense of public servant’s motivation.91
These changes worked for a time in the context of a new, growing and sheltered nation. 92 There was extensive government involvement in the economy as an employer and owner of significant assets as well as Government schemes such as the social security system.93 However, the extensive rules-based management of public servants prevented innovation and the associated procedural uniformity proved to be inefficient.94 As a result the public service was seen as oversized, inefficient and inadequate in providing public goods.95 Indicative of this was Gliding On a New Zealand sitcom that centred on four public servant’s attempts to avoid work.96 As the global economic situation worsened, government intervention in the economy
90 Te Kawa Mataaho (Public Service Commission), above n 73, at 19.
91 Long title.
92 Allen Schick The Spirit of reform: Managing the New Zealand State Sector in a Time of Change (State Services Commission, August 1996), at 11.
93 Schick, above n 92, at 11.
94 Eran Vigoda “From Responsiveness to Collaboration: Governance, Citizens, and the Next Generation of Public Administration” (2002) 62(5) PAR 527, at 529.
95 Peter Hughes and James Smart “You Say You Want a Revolution...The Next Stage of Public Sector Reform in New Zealand” (2012) 8(1) Policy Quarterly 3, at 4.
96 “Gliding on – No Smoke Without Fire (First Episode)” NZ on Screen
<https://www.nzonscreen.com/title/gliding-on-1981/overview>
proved to be counter-productive.97 A new set of ideas began to feed into the political dialogue that was anti-government intervention and considered ways that New Zealand could better participate in the global economy.98
The next evolution of New Zealand’s public administration model is marked by calls for greater availability of official information, a new theory of public management (known as NPM) and economic theory (drawing on public choice theory and New Institutional Economics).
The Official Information Act 1982 (OIA) was one of the first major legislative changes made before the NPM-inspired reforms. It signalled a shift in thinking about the relationship between the public and government. It reflected a belief that official information should be made available to the public.99 The OIA reversed the previous position that all government information was to be kept secret by introducing a presumption of availability.100 The purpose of the OIA includes the intention to increase the availability of official information to enable more effective public participation and promote accountability of public officials.101 Section 24 of the OIA, established a right to personal information held by agencies.102 These provisions marked a fundamental shift towards the idea of the public as citizens with a right to know how the government made decisions and to hold it accountable.
The next set of extensive changes were made in the public sector with the introduction of NPM and the influence of economic theories. NPM draws on ideas underpinning private sector and business management and transferred them to the operation of the public sector.103 The election of the Fourth Labour Government in 1984, introduced significant changes to the economy and
97 Schick, above n 92, at 12.
98 Schick, above n 92, at 13.
99 Philip A Joseph Joseph on Constitutional Law and Administrative Law (5th ed, Thomson Reuters, Wellington, 2021), at 320.
100 Philip, above n 99, at 319.
101 Section 4.
102 Replaced by principle 6 of the Privacy Act 1993.
103 Janet Denhardt and Robert Denhardt, above n 75, at 12.
the size and role of the public sector, beginning with deregulation.104 The State Sector Act (the 1988 Act) was part of this “process of corporatisation” as it was described by the then Minister of State Services.105 While merit-based appointment and due process were maintained, the new public service would be based on “set of personnel and industrial relations arrangements that encourage, rather than inhibit good performance by departments and individuals”.106 These reforms materialized though several statutes: The State Sector Act 1988, the Public Finances Act 1989 and Fiscal Responsibility Act 1994.
By convention, Ministers were already “responsible” for the work of their public servants in the sense that they had to explain departmental failings and account to Parliament for matters within their portfolios.107 However, the 1988 Act changed this relationship somewhat by aiming to strengthen the Minister’s ability to drive departmental performance.108 Whereas the State Services Commissioner had been the employer of all public servants under the 1962 Act, the 1988 Act placed chief executives at the head of government agencies and gave them the freedom to manage, implement policy and innovate solutions.109 As a large amount of discretion was given to departments as to how a policy is implemented the motivations of public servants was considered.110 It was assumed using public choice theory that public servants were primarily self-interested individuals (even if imbued with the spirit of service to the community). Therefore steps needed to be taken to prevent opportunistic behaviour contrary to the Minister’s wishes.111 Since these changes allowed greater “freedom to manage” Ministers were not directly in control of all of their department’s activities. Over time, this distinction meant Ministers became much more willing to transfer blame for “operational matters” to chief executives.112
104 Schick, above n 92, at 17.
105 (8 December 1987), above n 3.
106 (8 December 1987), above n 3.
107 Joseph, above n 99, at 296.
108 Christine Lidbury, Hélène Leconte and Katherine Poinsard Performance Contracting: Lessons from Performance Contracting Case Studies A Framework for Public Sector Performance Contracting (OECD, PUMA/PAC(99)2, 17 November 1999), at 4.
109 Section 31.
110 Schick, above n 92, at 17.
111 Schick, above n 92, at 17.
112 Joseph, above n 99, at 296.
New institutional economic (NIE) theories unpinned the focus on combatting self-motivated behaviour through contractual ideas to manage the “principal-agent problem”.113 Under NPM and NIE theory contracts make a lot of sense. Contracts allow parties with potentially conflicting interests to form relationships and be held accountable to their obligations.114 Among other things, chief executives were responsible to the Minister for their department’s “responsiveness on matters relating to the collective interests of government”.115 Chief executives were also held financially accountable for “financial management, financial performance and sustainability of the department”.116
Public choice theory assumes that individuals in the political/public realm will act as they do in the private realm. That is, the public will be primarily motivated by self-interest.117 In a private marketplace individuals will make a reasoned choice as to what goods and services they will purchase.118 Rational individuals will try to maximise the benefit to themselves. 119 Thus, there was a shift towards viewing the public as informed consumers with private interests.120 The public needed a voice to demand better services and this saw consultation being used more.121 Holding the Government accountable to a ‘customer’ was also thought to drive efficiency.122 Greater choice was created through outsourcing the delivery of public services to other actors and competition was created between public, private sectors and non-profit sectors to drive the quality of services.123 The role of the public service therefore was to be efficient and provide better services to the public as customers.
113 Schick, above n 92, at 17.
114 Christopher Pollitt and Geert Bouckaert Public Management Reform: a comparative analysis - new public management, governance and the neo-weberian state. (3rd ed, eBook ed, Oxford University Press, 2011), at 10. 115 State Sector Act, s 32(1)(b).
116 Public Finances Act 1989, s 34.
117 Jane Shaw “Public Choice Theory” (11 August 2008) The Concise Encyclopaedia of Economics https://www.econlib.org/library/Enc/PublicChoice.html, at 1.
118 Shaw, above n 117, at 2.
119 Schick, above n 92, at 17.
120 Scott, above n 68, at 21.
121 Allen Schick “Reflections on the New Zealand Model” (based on a lecture at the New Zealand Treasury, August 2001), at 12.
122 Te Kawa Mataaho (Public Service Commission), above n 73, at 20.
123 Janet Denhardt and Robert Denhardt, above n 75, at 13.
The reforms are generally considered to have been successful in increasing efficiency, productivity and ensuring public servants were more responsive to the government of the day.124 However, over time it became apparent that the emphasis on smaller departments with narrower goals had led to fragmentation of the public service as a whole. This had several of consequences. First, there was a miss-match between the public’s perception of the public service as one body that could draw on a range of expertise, and the reality that expert competencies were broken up and spread out across multiple departments.125 The strong individuality of each department was maintained and reinforced through funding, agency focused measures of performance and a vertical principle-agent structure of accountability.126
While the individual departments became more efficient at delivering services that they were contracted for, departmental collaboration on issues that required expertise from more than one department was made far more difficult.127 Addressing complex social issues effectively requires collaboration across services.128 Under the 1988 Act (and associated legislation) there were no legal options to join-up services.129 As a result, collaboration depended entirely on leaders’ willingness to work together.130 Peter Hughes points out that, private sector does not face these problems, being able to enter into joint ventures or consortia.131 That is not to say under this legislative framework collaboration was impossible with things like ‘community
124 State Services Commission, above n 4, at 4.
125 Peter Hughes, New Zealand Public Service Commissioner “How do we foster and encourage the ‘spirit of service’ which unites public servants, and strengthens the role of an independent public service that underpins the democracies of Australia and New Zealand?” (ANZSOG Paterson Oration, State Library of New South Wales, Australia, 7 March 2018).
126 Rodney Scott, Flavia Donadelli, and Elenor Merton Theoretical Paradigms in the Reform of the New Zealand Public Service: Is post-NPM still a myth? (Paper for the 2021 World Congress for Political Science, July 10-15 2021, Lisbon, Portugal), at 13.
127 Janet Denhardt and Robert Denhardt, above n 75, at 13.
128 Hughes, above n 25.
129 Peter Hughes and James Smart, above n 95, at 5. 130 Peter Hughes and James Smart, above n 95, at 5. 131 Peter Hughes and James Smart, above n 95, at 5.
links’ being set up which connected a range of social services.132 It was not made easy under the 1988 framework.
A great deal of emphasis was also placed on outputs as a measure of efficiency and to hold departments accountable for outputs.133 In this period there was the proliferation of legislation that that sought to increase financial accountability and transparency, such as the Fiscal Responsibility Act 2004.134 This was not something that is necessarily part of the NPM model that emphasises outcomes as well as outputs.135 However, in the “New Zealand model” outcomes and outputs became synonymous, as outputs were easier to measure than outcomes.136 However, output targets set by Ministers risk being “misinformed, incomplete or distorted by politics” and therefore can be problematic long-term.137
Political discourse once again began discussing how to address these shortcomings drawing on democratic values and reconceptualising the ‘public interest’.138 Particularly in light of concerns of increasing public apathy to the politics.139 In New Zealand it was proclaimed that we had “reached the limit of what we can achieve within the confines of the current statute”.140 Tinkering around the edges of existing legislation would not be enough as the core structure of the old legislation, being based on NPM ideas did not incentivise unification or collaboration.141 New legislation was required, and with it a new set of ideas.
132 Ministry of Social Development “Community/ Ko Te Iwi Whānui” <https://www.msd.govt.nz/what-we-can- do/community/index.html>
133 Schick, above n 121, at 11.
134 Chye-Ching Huang “Constitutional Nonsense? Fiscal Responsibility Act 1994, the Financial Management Reform and New Zealand’s Developing Constitution”[2008] WkoLawRw 13; (2008) 16 Waikato L Rev 264, 290.
135 Schick, above n 121, at 11.
136 Schick, above n 21, at 11.
137 Janet McLean and Mark Tushnet, above n 63, at 126.
138 Christopher Pollitt and Geert Bouckaert, above n 114, at 7.
139 Vigoda, above n 94, at 528.
140 (21 November 2019), above n 3.
141 State Services Commission, above n 4, at 9.
There are multiple theories that claim to succeed New Public Management. However, the theory that provided some of the inspiration for elements of the Public Service Act is known as “New Public Service” as articulated by the Denhardt’s.142 The Denhardt’s describe their theory as “a set of ideas about the role of public administration in the governance system that places public service, democratic governance, and civic engagement at the centre”.143
In this model the public is seen as ‘citizens’ in partnership with the State.144 This approach is premised on the ethos that the shared characteristics of citizenship and democratic values should take precedence in the relationship between citizens and the State”.145 Thus, the role of the public servant is quite different, their role is to encourage the citizenship of others.146 Citizenship in this model is framed in a wide or “high” sense.147 The Denhardt’s describe it as “the individual’s capacity to influence the political system”.148 This is contrasted with the narrow and “low” legal sense of the word.149
These basic starting points lead to different conclusions about how public administration should operate. Rather than seek aggregated self-interest, public servants are to seek the public interest which is found through a “dialogue of shared values”.150 Partnership is necessarily more personal than legal contractual relations and requires a relationship of trust, mutual respect, and collaboration to be built.151 This also requires public servants to actively promote “collective efforts and collaborative processes” to understand the public’s needs when implementing policy.152 Public servants need to be alive to more than just the market. They
142 Scott, above n 68, at 1.
143 Janet Denhardt and Robert Denhardt, above n 75, at 24.
144 At 97.
145 Te Kawa Mataaho (Public Service Commission), above n 73, at 20.
146 At xii.
147 Scott, above n 68 at 17.
148 Janet Denhardt and Robert Denhardt, above n 75, at 27.
149 At 27.
150 At 28.
151 At 43.
152 At 44.
should consider “community values, political norms, professional standards, and constitutional arrangements”.153
The purpose of the public service under the Public Service Act (the 2020 Act) reflects many of the New Public Service ideas such as the Public service’s role in supporting constitutional and democratic government, supporting the Government in perusing the long-term public interest, and in facilitating active citizenship.154 The new Act reflects that changing conception of the public as having a role and sense of ownership in government and the public service.155 Although, government is fundamentally based on indirect representative government, there is emphasis placed on increasing the participatory mechanisms used by government that go beyond consultation to greater levels of involvement.156
The new model also paints a more complex picture of public service motivation. Features of the NPM model still exist, particularly through the Public Finance Act and the budget processes that are largely unchanged since the 1990s. However the 2020 Act assumes public servants have intrinsic motivation to serve the community and states that the spirit of service is a “fundamental characteristic of the public service”.157 Further, “Public service leaders...must preserve, protect, and nurture the spirit of service to the community that public service employees bring to their work”.158 The 2020 Act attributes five values to the public service: impartial, accountable, trustworthy, respectful and responsive.159 This is a similar approach to legislation in comparable judications such as Australia160 and the United Kingdom.161
153 At 43.
154 Public Service Act 2020, s 11.
155 Te Kawa Mataaho (Public Service Commission), above n 73, at 24.
156 New Zealand’s Fourth National Action Plan. Te Tauwhā o ngā Mahere Mahi ā-Motu o Aotearoa 2023-2024
(New Zealand Government, December 2022), at 17.
157 Section 13(1) (emphasis added).
158 Section 13(2).
159 Sections 16(1)(a)-(e).
160 Australian Public Service Act 1999 (Cth), s 10.
161 Constitutional Reform and Governance Act 2010 (UK) Eliz II c 1, s 7.
The new theoretical basis for the Act suggests that principles such as open government have a different rationale. Openness of government has been strengthened through several of statues such as the Privacy Act 1993, and Public Records Act 2005.162 As well as with New Zealand becoming part of the Open Government Partnership (OGP) in 2013.163 However, the 2020 Act describes the principle to be about “fostering a culture of open government”.164 This is wider than allowing access to official information, it is about creating an attitude and approach within the public service, and with individual public servants that promotes openness to the public and supports openness of Ministers when providing advice.165 It supports Government seeking to engage directly with the public as citizens, and becoming more accountable to them.166 Hence, ‘freedom of information’ regimes are a key part of supporting public engagement and access to government.167 Such regimes also help to ensure the interaction between government and citizens is more effective.168
In recent years, the Commission, together with the Ombudsman, has taken a lead role in oversight of OIA compliance across the public service. Although this activity preceded the Public Service Act, it provides a mechanism for monitoring and reporting on public service OIA compliance.169 Overall compliance rates have shifted from around 91% of OIA completed within legislative time frames to 98.2%.170 Mechanisms such as the long-term insights briefings also potentially reinforce the “facilitation” of an active citizenry and embody the Denhardt’s New Public Service ethos of “serving rather than steering”.171
162 Public Service Legislation: Paper 2 – A unified public service, above n 7, at [15]. 163 Public Service Legislation: Paper 2 – A unified public service, above n 7, at [17]. 164 Section 12(1)(d).
165 Hannah Cameron and Callum Butler Public Service Principles – What are they and what do they mean for Public Servants (Te Kawa Mataaho: Public Service Commission, April 2021), at 21.
166 Janet McLean and Mark Tushnet, above n 63, at 129. 167 Janet McLean and Mark Tushnet, above n 63, at 129. 168 Janet McLean and Mark Tushnet, above n 63, at 129.
169 Open Government Partnership New Zealand “New Zealand’s Involvement Open Government Partnership New Zealand <https://ogp.org.nz/open-government-partnership/>; Public Service Act, sch 3.
170 Te Kawa Mataaho Public Service Commission “Latest OIA Statistics Released” (13 September 2023)
<https://www.publicservice.govt.nz/news/latest-oia-statistics-released- 8/#:~:text=Public%20Service%20Commissioner%20Peter%20Hughes,between%20January%20and%20June%2 02023>
171 Scott, above n 68, at 9.
However, active citizenship has a wider meaning too. As noted, the Denhardt’s see citizenry in the high sense, and this “implies active involvement in political life”.172 So, “facilitate” implies more than just making information available, it also includes enabling citizens to participate in public service engagement with the community. Perhaps, this dimension is evident in the commitment in the Fourth National Action Plan’s commitment to adopt one of the OGP suggestions that the Public Service Commissioner issue a “model standard” to support community greater engagement.173 The aim is to have public participation in the development, design and delivery of policy and services.174 It also aimed at improving consistency across departments.175 Although, whether this commitment is a result of the legislation itself or due to the OGP process requirement as part of supporting an international agreement is debatable.
The new legislation seeks to correct the shortcomings experienced under the prior legislation and theories associated with NPM in particular. As a starting point, the 2020 Act appears to go back to the basic idea that public servants act in the “spirit of service to the community”.176 Additionally, the reforms make an “explicit attempt” to foster a unified culture and identity around this characteristic of public servants.177 This aligns with the citizen-centred approach that is advocated by the Denhardt’s. However, the exact meaning of the “spirit of service” for individual public servants may differ markedly. The current Public Service Commissioner Peter Hughes says the “spirit of service” is primarily about being “totally focused on the citizen, customer or client” and part of “something bigger” than themselves.178
172 Janet Denhardt and Robert Denhardt, above n 75, at 27.
173 New Zealand’s Fourth National Action Plan. Te Tauwhā o ngā Mahere Mahi ā-Motu o Aotearoa 2023-2024, above n 156, at 14.
174 New Zealand’s Fourth National Action Plan. Te Tauwhā o ngā Mahere Mahi ā-Motu o Aotearoa 2023-2024, above n 156, at 14.
175 New Zealand’s Fourth National Action Plan. Te Tauwhā o ngā Mahere Mahi ā-Motu o Aotearoa 2023-2024, above n 156, at 6.
176 Rodney Scott and Michael Macaulay “Making sense of New Zealand’s ‘spirit of service’: social identity and civil service” (2020) Public Money & Management 1, at 1.
177 Rodney Scott and Michael Macaulay, above n 176, at 1.
178 Hughes, above n 125.
The common identity and ethos seek to create cultural unity and conceptualises the whole the public service as a network of competencies through which service is delivered to the community.179 This is supported by part 2 of the Act which contains the ability to establish joint operational agreements, and interdepartmental executive boards and interdepartmental ventures so that incentives can be better aligned to shared outcomes. Accountability is also maintained by the ability to create interdepartmental executive boards and interdepartmental ventures that are accountable to an “appropriate Minister”.180 This makes New Zealand distinct from other countries, as it uses both cultural and structural reform to support joined-up government.181
With the changes introduced in the 2020 Act, it is a case of the past informing the present. It would be difficult to understand what the concepts such as ‘foster a culture of open government’ or ‘active citizenship’ mean and what is hoped to be achieved without considering the theoretical and historical evolution of New Zealand’s public service and why each change occurred. This context also helps to make it clearer what the responsibilities placed on public service leaders might entail in practice. The New Public Service theory that underpins the 2020 Act reveals a highly aspirational intent behind concepts like “open government” or “facilitating active citizenship”. However, how does the Act help these aspirations to be achieved in practice? That question is the subject of analysis in the remaining Parts III-V of this dissertation.
III Could the responsibilities for upholding the principles be subject to outside scrutiny in order to promote compliance?
Usually, the threat of scrutiny from the Judiciary or the Ombudsman would be the main way that compliance with legal responsibilities is promoted. However, the self-contained system of accountability set up under the Act indicates that the ability of these institutions to ensure the principles are being adequately given effect to and upheld is designed to be limited.
179 Rodney Scott, Flavia Donadelli, and Elenor Merton, above n 126.
180 Section 28.
181 Rodney James Scott and Michael Macaulay, above n 176, at 8.
Nevertheless, the extent of these limitations is worth testing. In theory, an individual could make a complaint to the Commissioner about a chief executive or to chief executives about public servants within their departments. This is not supported by a formal complaints process and may be ignored. This part aims to consider the role that the Judiciary or the Ombudsman might have in relation to the principles. The options that will be considered are judicial review, the employment relationship, the Human Rights Review Tribunal (HRRT) and making a complaint to the Ombudsman.
Provided the threshold questions of justiciability, amenability and standing could be established there are two key public officials that an individual might seek to review in relation to the principles: the Public Service Commissioner and the other Public Service Leaders such as chief executives.
Under the Public Service Act the Public Service Commissioner is given the authority to issue guidance on the principles, elaborate on what the principles mean through minimum standards, and enforce compliance with the principles.182 Provided the Commissioner acts within his/her statutory authority these decisions are unlikely to be available to scrutiny.183 As where “Parliament delegated tasks.... it did not expect the court to sit on [the decision makers] shoulder. The Court will only intervene if [the decision maker] is plainly and demonstrably wrong”, invoking a sort Wednesbury standard of reasonableness in spirit if not in name.184 The Court has also made it clear that where the Public Service Commissioner has issued a set of minimum standards such as a code of conduct it will not “add” to it.185 Hence, the Commissioner’s interpretation and articulation of the principles is unlikely to give rise to a successful challenge in judicial review.
182 Sections 17, 12.
183 Wyatt CO (NZ) Ltd v Queenstown-Lakes District Council [1991] 2 NZLR 108 (HC), at [191] (“Parliament delegated tasks.... it did not expect the court to sit on [the decision makers] shoulder. The Court will only intervene if [the decision maker] is plainly and demonstrably wrong”).
184 Wyatt CO (NZ) Ltd v Queenstown-Lakes District Council, at [191]; Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; (1948) 1 KB 223.
185 Chief Executive of the Ministry of Fisheries v United Fisheries Ltd [2010] NZCA 356, at [57].
However, for chief executives who have the responsibility has uphold the principles when carrying out their “responsibilities and functions”186 the prospect of review might depend on the principle. Concepts like “political neutrality” have in the past provided a legal standard that the Court could apply to decisions. This was seen in New Zealand First Party v Director of the Serious Fraud Office. 187 In that case the New Zealand First Party sought to prevent the Serious Fraud Office (SFO) from publicising criminal charges against the New Zealand First Foundation for fraudulent electoral donations on the basis that the Director of the SFO was “influenced by political considerations”.188 The Judge found that “in the context of law enforcement, political neutrality seems likely to mean that a department must approach investigations into issues that are relevant to politicians in the same way as it approaches investigations into issues that are not”.189 Therefore, was able to conclude that deviating from following standard practice would have been at “odds with the principle of its political neutrality”.190
It may be less clear what principles like “fostering a culture of open government” require. The Courts have tended to find that aspirational and open-ended duties do not give rise to legal obligations. For instance, in Auckland Electricity Board v Electricity Corp of New Zealand the Electricity Power Board was trying to argue that the termination of their contact with Electricity Corp was in breach of the contract and the duty to act in a “socially responsible manner” as required by the State-Owned Enterprises Act 1986.191 The Court held that the duty did not create a legal basis for the Electricity Power Board’s customers to bring a claim against the Board’s supplier.192 Rather, that duty was enforced through a political form of accountability through Parliament as Ministers are shareholders of State-Owned Enterprises.193 The same could be said about the open government principle, as the Public Service Act states that chief executives will be responsible “only” to the Commissioner who is in turn accountable to Parliament through a Minister.
186 Public Service Act, s 12(2)(a).
187 New Zealand First Party v Director of the Serious Fraud Office [2020] NZHC 2502, at [25].
188 At [25].
189 At [26].
190 At [26].
191 Auckland Electric Power Board v Electricity Corporation of NZ CA45/93 8 September 1993, at [2].
192 At [2].
193 At [14].
That being said, the legal responsibilities in relation to the open government principle might become clear once the refreshed code of conduct is created that gives effect to “the principles, values and language used in the Public Service Act 2020”.194 As “articulated expressions of policy may give rise to enforceable obligations”.195 The Courts can interpret policy like a code of conduct to see whether it has been correctly applied and does not defer to the decision maker.196 While the Court will not treat the code with “with the strictness” of statutory interpretation. 197 It will endeavour to give effect to it by interpreting it sensibly in light of its objectives and proper context.198 However, if the refreshed code of conduct is similar to the current code of conduct then it is likely to be relatively short, values based and aspirational.199 Rather than a code that sets out certain procedural requirements. Thus, the effectiveness of it as a tool to measure compliance with a principle like open government might depend on its wording.
Public Servants would only be able to challenge the interpretation and application of the principles through their employment relationship.200 An individual public servant is employed by a chief executive and within the chief executive’s department.201 Chief executives are responsible for the integrity and conduct of their employees and would need to ensure their agencies uphold the principles when carrying out their functions.202 In practice, the principles and what they mean will be included in the refreshed code of conduct as part of the employment contract.203 Given one of the goals of the 2020 reforms is to improve consistency across the
194 Te Kawa Mataaho Public Service Commission, above n 58.
195 Pora v Attorney-General [2017] NZHC 2081, at [90].
196 Pora, above n 195 at [90].
197 Patel v Chief Executive of Department of Immigration CA220/96, 5 March 1997, at [271].
198 Patel, above n 197, at [271].
199 Guidance: Understanding the Code of Conduct, above n 56.
200 Employment Relations Act 2000, s 194A (removes the ability for employees to go to the High Court to review the exercise of statutory powers or statutory power of decision within an employment relationship). 201 Public Service Act, s 66.
202 Public Service Act s 52(1)(g).
203 Te Kawa Mataaho Public Service Commission, above n 58.
public service a seemingly small employment dispute could have real impacts on how a principle, through the code of conduct is interpreted and applied.
To date there is one example, where the principles have been mentioned in the context of an employment dispute in GF v Comptroller of the New Zealand Customs Service.204 The Court made reference to the chief executive’s “responsibility (to the Commissioner) for upholding the principles when carrying out their responsibilities and functions” in the context of discussing the “heightened obligations on public sector employers” under s 73 of the Public Service Act.205 Here the Court didn’t go further than this statement, likely because the case was focused specifically on s 73(3)(d).206 The Judge employed the public service’s s 14 role in supporting the Crown’s relationship with Māori to support her argument that s 73(d) imposed a requirement for a good (public service) employer to understand and act consistently with tikanga/tikanga values” rather than just “tweak job advertisements and then create Māori friendly work environments”.207 However, the Customs’ Code of Conduct that made explicit reference to “mana” as an “expected characteristic within the employment relationship” was used to imply that tikanga applied in that employment relationship rather than just being an aspirational concept.208 This suggests once the principles are incorporated into the employment relationship, the Employment Court is likely to consider the principles giving rise to obligations rather than just being a guide of expected behaviour. It also suggests the Employment Court might be prepared to consider what values/principles require in the employment context.
The Court may also have a role in ensuring that the principles are interpreted and applied in a way that is consistent with other legal norms. One avenue where this might be observed is in the HRRT. While this has not yet been seen in relation to the principles, a conflicts of interest policy that gave effect to values of integrity, accountability and transparency required under the Public Service Act was challenged in the HRRT. In Affrica Morgan v Public Service
204 GF v Comptroller of the New Zealand Customs Service [2023] NZEmpC 101.
205 At [20].
206 At [24].
207 At [32].
208 At [130]-[142].
Commissioner the policy was challenged on the basis that it discriminated against Morgan due to her family status.209 Morgan had applied for a job at the Commission and had not disclosed that her mother worked in the team she had applied for.210 Morgan was told she was the preferred candidate and it was indicated that she would get the job.211 However, when the relationship was discovered the job offer was revoked on the basis that it would be an apparent conflict of interest (as per the policy) and that the conflict could not be managed.212 The Tribunal found that this was discrimination on the basis of family status under the Human Rights Act, and the exception under s 32(a)(ii) of the Human Rights Act did not apply.213 Hence, the HRRT may have a role in ensuring policy that gives effect to the principles under the Public Service Act are applied in a way that is consistent with other legal norms.
A complaint regarding the principles could also be brought to the Ombudsman.214 The Ombudsman can look into the merits of an administrative decision by being able to form an opinion that the “decision, recommendation, act or omission...appears to have been contrary to law; was unreasonable, unjust, oppressive, or improperly discriminatory...or was wrong”.215 As the Courts often find the merits of a decision made by someone acting within their lawful authority is beyond its jurisdiction (i.e. like the Commissioner),216 the Ombudsman could fill a gap here. While the Ombudsman does not have “binding power of decision” and is only able to make recommendations and reports of its findings, these findings are public and carry weight.217 In addition, recommendations made to the Ministers are not exempt from the Ombudsman’s jurisdiction.218 Phillip Joseph argues that it is “unlikely that Ombudsman would find a defect justifying an adverse report if the Ministers advisers carefully considered the
209 Affrica Morgan v Public Service Commissioner [2022] NZHRRT 38, at [51].
210 At [14].
211 At [9].
212 At [17].
213 At [48].
214 Ombudsman Act 1975, s 13.
215Ombudsman Act, s 22(1).
216 Kelsey v Minister of Trade [2015] NZHC 2497, [2016] 2 NZLR 218, at [91].
217 Joseph, above n 99, at 451; Ombudsman Act, s 22.
218 Public Service Act, s 13(2).
subject matter of the decision and fairly put their recommendation to the Minister.219 However, this jurisdiction is useful because the principles guide chief executives in exercising their functions and responsibilities under the Act, one of the important relationships in which these will be exercised is with the Minister.220
The principles codify conventions that pre-existed the new Act. Arguably, if an agency continued to maintain the status quo it would be unlikely that a claim would ever arise that government behaviour with regard to the principles was incorrect or had an adverse effect on an individual. This is the case, even though the principles also have a aspirational aspect and seem intended to strengthen certain conventions. For instance, with the open government principle, it may be more likely that a complaint would be made about the application of other statutes relating to the openness of government (i.e. OIA) than the principle itself. Although, conceivably the principle might be mentioned in a report or recommendation made by the Ombudsman to support its finding about such a complaint.
E Conclusion
This analysis concludes that the Judiciary and the Ombudsman may have a limited supervisory role in the upholding of principles. One that mainly responds to how a principle, already given effect to through codes of conduct or policy documents, is applied and interpreted by officials. That said, once the Commission creates such documents the potential for judicial scrutiny increases. However, at this point, the Court would be reacting to what the Commissioner has already determined the principle to mean in practice. This finding seems consistent with the ‘internal’ system of accountability set up under the Public Service Act. However, it indicates that there is no clear way to ensure the principles are interpreted in a way that goes beyond the status quo. This may suggest that the aspirational intent behind the principles is either vulnerable, empty, or a symbolic gesture that in legal terms is unlikely to achieve anything substantive.
219 Joseph, above n 99, at 448.
220 Public Service Act, s 52(1)(f).
IV Despite the limited potential for outside challenge, the purpose and principles possess the potential to have substantive legal effect and constitutional implications
Parts I and III indicate that aside from the internalized system of accountability established under the Public Service Act, there are few mechanisms by which to enforce compliance. Given that the legal responsibilities created under the Act appear to “lack teeth” it could be argued that the principles, and thereby the purpose of the public service, examples of “soft or symbolic law”.221 At the same time, it is well recognized that law serves several functions unrelated to “controlling our worst tendencies”.222 Indeed, putting the public service principles and purpose into law is claimed to have both an enabling223 and protective224 function. There are also theories that consider different objectives for legislating which do not rely on the threat of punishment to promote compliance. These theories explain how law can have indirect legal effects through being an interactive or communicative tool.225
While the principles and purpose in the Act are unlikely to be enforced directly this does not necessarily mean they are just an exercise of legal symbolism or soft law with no potential to have legal effect. This part therefore considers the potential legal and constitutional effects of the provisions by assessing the other possible functions laws can have. First, the normative and communicative function of the law will be considered. It is argued that, in combination with the Public Service Act’s leadership model, this has the potential to have indirect legal effects by promoting behavioral change. Second, the enabling and protective function of these provisions will be examined. It is concluded that these provisions locate the public service within the constitutional framework and help preserve the independence of the public service.
221 Bart van Klink and Willem Witteveen “Why Is Soft Law Really Law?” (1999) 3 RegelMaat 126, at 126. 222 Seana Valentine Shiffrin “Inducing Moral Deliberation: On the Occasional Virtues of the Fog”[2010] HarvLawRw 34; (2010) 123 Harv L Rev 1214, at 1219 (“it is comforting to know even without badmen we still need law”).
223 ipanz “An Update on the Public Service Legislation – An Interview with SSC IPAZ Hannah Camron” (2 June 2020) https://ipanz.org.nz/Article?Action=View&Article_id=150286.
224 (21 November 2019), above n 3.
225 Bart van Klink and Willem Witteveen, above n 221, at 126.
This part uses the term “legal symbolism” to describe laws that are initially dubbed “symbolic” or “soft” because they cannot be enforced directly and leave the question of whether the law could have any substantive effect unclear. This approach draws on Willem Witteeven and Bart van Klink’s distinction between different styles of regulation rather than seeking to establish a single definition of what symbolic legislation is per se.226 This approach recognizes that there is “no consensus on what the term symbolic legislation stands for”.227 Furthermore, the definitions approach often seeks to establish whether the use of symbolism in law is problematic.228 This is often because a law proves to be ineffective and there is evidence it was deliberately designed that way in the face of political pressures.229 However, the relationship between law and politics is not the focus of this inquiry. The purpose is not to examine the role of politics in law-making but rather to examine potential ways in which legislation can have legal effect, albeit indirectly.230 Although, the value of symbolic law is the subject of extensive academic debate, it is generally accepted that symbolic law may serve several functions.231 The theories of symbolic law, as an alternative style of regulation that is “communicative and interactive” for instance, considers symbolic legislation as a “legitimate technique for achieving behavioral changes”.232 The normative effect of law, when assessed using these theories, helps to assess the potential of the public service purpose and principles to have an indirect legal effect through promoting certain behavior and influencing attitudes.
226 Bart van Klink and Willem Witteveen, above n 221, at 126.
227 Angelika Siehr “Symbolic Legislation and the Need for Legislative Jurisprudence: The Example of the Federal Republic of Germany” (2008) 2(3) Leg 271, at 279.
228 Rodney Scott, Michael Macaulay and Eleanor Merton “Drawing New Boundaries Can we legislate for administrative behaviour?” (Public Administration Review Symposium, London, 5-6 December 2020), at 5.
229 Jens Newig “Symbolic Environmental Legislation and Societal Self-Deception”(2007) 16(2) Environmental Politics 276, at 279.
230Francesco Ferraro “Deception and Expression: The Puzzling Rationality of Symbolic Legislation” in Francesco Ferraro and Silvia Zoretto (eds) Studies on the Theory and Practice of Legislation (Springer, Legisprudence Library, 2022), at 120 (“symbolic legislation’s ‘bad name’ overshadows its complexity”). 231 Rodney Scott, Michael Macaulay and Eleanor Merton, above n 228, at 5.
232 Rodney Scott, Michael Macaulay and Eleanor Merton, above n 228, at 5.
The communicative or interactive style of regulation is championed by Bart van Klink and other Dutch theorists. Van Klink’s approach is a response to the traditional style of regulating which sees instrumental legislation as the most “practical and acceptable way of guiding human behavior”.233 The instrumental approach is top-down, whereby the legislator provides a clear set of rules for citizens to follow and a predictable punishment if they do not.234 In contrast, the communicative style of regulation views law as an “invitation to dialogue” between the legislator and those subject to the law, and places them on more equal terms.235 As part of this, the legislator first identifies an interpretive community and legislates for a number of values that are considered fundamental to that community.236 The interpretive community is therefore the group tasked with applying the law.237 The values should be translated into law in a manner that leaves room for debate about how they are to be interpreted.238 This allows for “robust democratic engagement with the law” or a “first draft of interpretation”.239 The legislator should also create institutions, or ways by which interpretations can be discussed, that enable contradicting interpretations to be resolved.240 The legislator thereby establishes aspirational norms in law and enables the interpretive community to apply the norms and give effect to them.241 This approach recognizes the crucial role that interpretive communities plays in giving
233 Bart van Klink and Willem Witteveen, above n 221, at 126.
234 Shiffrin, above n 222, at 1216.
235 Bart van Klink and Willem Witteveen, above n 221, at 126. 236 Bart van Klink and Willem Witteveen, above n 221, at 127. 237 Bart van Klink and Willem Witteveen, above n 221, at 127. 238 Bart van Klink and Willem Witteveen, above n 221, at 127. 239 Shiffrin, above n 222, at 1214.
240 Bart van Klink and Willem Witteveen, above n 221, at 127.
241 Bart van Klink “Symbolic Legislation An Essentially Political Concept” in Bart van Klink, Britta van Beers and Lonneke Poort Symbolic Legislation Theory and Developments in Biolaw (Springer, New York City, 2016), at 24.
meaning to a law’s text.242 As Llewellyn points out, “it is the institutions which validate the words, not the words that validate the institutions”.243
Legislating the values of an interpretive community thereby gives the values a level of authority and visibility associated with law. It, therefore, serves an expressive function that is aimed at “influencing reality” by slowly changing the behavior of those interacting with the legislation.244 The law offers a vocabulary that “directs thinking and speaking” and also provides norms that can be used as “trumps” in arguments.245 Although aspirational standards are often criticized for sacrificing legal certainty, scholars, such as Seana Valentine Shiffrin “champion their haziness”.246 That said, Shiffrin does not suggest that aspirational standards are better than legal rules in every case. However, she does contend that in appropriate circumstances they are preferable as they “demand active engagement and understanding of the situation of others...and thereby directly promote moral agency”.247 Whether a law is understood as capable of simulating this sort of debate, in part, depends on whether we choose to take an optimistic or skeptical view of law’s potential.248 Van Klink recognises the idealist nature of his approach by acknowledging that if we take “a view of distrust and suspicion we will see political motives everywhere but if we put on a pair of rose-tinted glasses and approach the phenomena from a communicative perspective we might see interesting opportunities for debate”.249
242 Fish, Stanley Is There a Text in This Class? The Authority of Interpretative Communities (Harvard University Press, Cambridge, 1980), at 335.
243 Matthew Palmer “What is New Zealand’s Constitution and Who Interprets It? Constitutional Realism and the importance of Public Office Holders” (2006) 17 PLR 133, at 148; (quoting Karl Llewellyn “The Constitution as an Institution” (1934) 34 Colum L Rev 1).
244 Bart van Klink and Willem Witteveen, above n 221, at 127. 245 Bart van Klink and Willem Witteveen, above n 221, at 127. 246 Shiffrin, above n 222, at 1214.
247 Shiffrin, above n 222, at 1224.
248 Newig, above n 229, at 281 (Discusses the example of public choice theory “with its disenchanting view of politics and legislation and does so without any romantic or idealistic view of law makers serving the public good”).
249 Bart van Klink, above n 241, at 30.
The Public Service Act deliberately establishes a leadership model that ensures the principles are upheld and thereby gives effect to the public service purpose. The interpretive community is identified, being the public service leaders who have individual responsibility for giving effect to the principles and ensuring the agencies they lead do the same.250 The principles and purpose are viewed as a codification of pre-existing conventions and descriptions of the “state sector system”.251 Thereby, the Act puts into law values that were already seen as fundamental by public service leaders for the operation of the public service. The leadership model also provides a way for the meaning of the principles to be debated, and consistently applied across the Public Service.252 Additionally, the Public Service Commissioner can issue guidance to clarify and resolve issues of interpretation.253 The legislation directs the dialogue about the interpretation of the conventions from being in a sense invisible or deemed as something everyone knows and understands and expressed as principles in law. This allows for some supervision by Parliament (even if not the court), through the Minister for the Public Service that was not previously possible. These features indicate that the principles and thereby the purpose establish a communicative framework with the potential to have substantive normative effects on behavior.
While the principles and purpose, in theory, appear to have this function, whether it will actually have a substantive effect in changing behavior in practice is debatable. The Public Service Commissioner has a wide discretion in relation to bringing the principles into effect there is a potential for the Commissioner to avoid the task of defining the principles adequately, as doing so might “invite conflict”.254 There is also the concern that the legislator has effectively transferred the hard work of defining what the principles mean in practice to the Public Service
250 Public Service Act, s 12(2).
251 Public Service Legislation: Paper 2 – A unified public service, above n 7, at [85].
252 Public Service Legislation: Paper 5 – Leadership of the public service, above n 36, at [6].
253 Public Service Act, s 17.
254 Janet Weiss and Sandy Kristen Piderit “The value of mission statements in public agencies” (1999) 9(2) Journal of Public Administration Research and Theory 193, at 221.
Commission.255 Lauren Edelman who has researched organizational responses to the 1964 Civil Rights Act, found that laws which gave organizations the responsibility for giving meaning to principles saw initially the “elaboration of formal structures to create visible signs of compliance”.256 However, in the face of competing pressures and trying to “preserve managerial discretion”, the interpretation ultimately mediates the effect of law on society.257 Edelman finds that principles can have an indirect effect on organizational behavior by influencing the legal environment, and this includes both the culture and norms surrounding compliance with the law.258 She states that it “remains uncertain whether the structures created are just a steppingstone towards achieving the ideals” or whether progress will end at that point.259 The same could be said for the public service principles. There is now a proliferation of policy and guidance documents relating to how the principles should be applied. The extent of the actual substantive effect is dependent on a strong leadership push. Furthermore, pressure from the political Executive could result in the status quo being preserved rather than the aspirational aspect of the principles being fulfilled.
On the other hand, the public service operates in a sui generis political environment quite distinct from the private sector. The difference is described aptly by Donald Savoie, who says “in the private sector it does not matter much if you get it wrong 10 percent of the time as long as you turn a profit at the end of the year. In government, it does not much matter if you get it right 90 percent of the time because the focus will be on the 10 percent of the time you get it wrong”.260 If law places responsibilities on public servants they will strive to carry out the task because they are required to “act in accordance with the law” and not doing so threatens the legitimacy of the public service. For instance, while overall compliance with the OIA is around 98%, the 2% percent of non-compliance is in breach of the law and potentially affects public trust in the public service as a whole. So, while there is a degree of leadership discretion about the extent to which the principles will result in real changes to the public sector behaviour, there is a strong reputational incentive for leaders to demonstrate that they are giving effect to
255 John Dwyer “The Pathology of Symbolic Legislation” (1990) 17(2) Ecology L Q 233, at 233.
256 Lauren Edelman “Legal Ambiguity and Symbolic Structures: Organizational Mediation of Civil Rights Law” (1992) 97(6) Am J Soc. 1531, at 1531.
257 Edelman, at 1533.
258 Edelman, at 1533.
259 Edelman, at 1533.
260 Donald Savoie “What is wrong with new Public Management” (1995) Adm Pub Can 38(1) 112, at 115.
the principles. Hence, the normative influence on behaviour through the legislation of the principles has the potential to be quite strong.
The Commission’s policy documents, Cabinet papers and debates in Parliament indicate two key arguments were made in support of the Public Service Bill: that the Bill was “very enabling”261 for public servants and that legislating certain conventions relating to the public service “protect these things we take for granted”.262 More specifically, the conventions that were put into legislation are directed towards preserving and strengthening the independence of the public service to resist the political pressures of that environment.263 This approach is preventative and perhaps warranted considering the experience in other jurisdictions. For example, in Australia, trust in the public service has been severely damaged by the “illegal and abusive” Robodebt Scheme.264 The Robodebt Scheme revealed a lack of independence and understanding of the Australian Public Service’s “role, principles and values” which contributed to “the failure of public administration that led to the creation and maintenance of the Scheme”.265
A level of public service independence is seen as a crucial component of New Zealand’s constitutional arrangements.266 However, few would go as far as saying the public service has an independent constitutional identity or personality separate from that of Ministers.267 This question is the subject of some debate in the literature.268 Suggesting that the public service has constitutional independence would challenge the principle-agent theory upon which the accountability of the public service is said to be maintained.269 At the heart of the Westminster
261 ipanz, above n 223.
262 (21 November 2019), above n 3.
263 Public Service Legislation: Paper 2 – A unified public service, above n 7, at [21].
264 Commonwealth of Australia Report of the Royal Commission into the Robodebt Scheme (7 July 2023).
265At 637.
266 Constitutional Advisory Panel New Zealand’s Constitution: a Report on a Conversation (New Zealand Government, November 2013), at 70.
267 Chris Eichbaum “A Constitutional Personality does the New Zealand public service possess one, and is it in good order?” (2016) 12(3) Policy Quarterly 50, at 54.
268 Eichbaum, above n 267, at 54.
269 Peter Barberis “The New Public Management and a New Accountablity” (1998) 76 Pub Adm 451, at 452.
tradition is the idea of a “golden thread” of accountably whereby “the executive powers of the Crown are exercised by and on advice of Her Majesty’s Ministers, who are in turn answerable to Parliament”.270 However, the Public Service Act does seem to draw a distinction between the independent (or public interest) and political aspects of the Executive. It formalizes several conventions, expressed as principles and values that are related to public service independence such as political neutrality, free and frank advice, integrity, and other values of professionalism.271 Chief executive responsibility for the principles is owed to the Public Service Commissioner, rather than the Minister to recognize that upholding certain principles reflect a public interest rather than the Minister’s interest. Hence, the legislation is both enabling and protective of the public service by formalizing certain parameters or boundaries of the relationship between the political and neutral Executive.
The Executive includes the public service and Ministers from the Government of the day.272 While both are generally considered to be part of the Crown they exercise very different roles.273 A distinction could be drawn between the public service as the neutral Executive and Ministers as the political Executive but this picture is complicated by the fact that there are times when public servants act as if they were a Minister. For instance, when carrying out functions under law on behalf of Ministers as conceptualized by the Carltona principle.274 It is perhaps more beneficial to separate the neutral and political Executive based on function using Janet McLean’s analysis. McLean draws a distinction between times when a public servant is acting as a Minister’s representative by “conveying and enforcing the sovereign’s decisions” while at other times the public servant will be acting as the Minister’s advisor.275 In this latter function, the public servant cannot act as the Minister’s representative and thus has an independent role as counsel.276
270 Eichbaum, above n 267, At 54.
271Lorne Sossin, “Speaking truth to power? The search for bureaucratic independence in Canada” (2005) 55(1) UTLJ 1, at p.1.
272 Cabinet Office, above n 55, at [1.4].
273 Cabinet Office, above n 55, at [1.4].
274 Carltona Ltd v Commissioners of Works [1943] 2 All ER 56.
275 Janet McLean “Bureaucracy Sovereignty and Democracy?” (draft, on file with the author), at 9.
276 Janet McLean, above n 275, at 9.
McLean acknowledges that her distinction complicates the principle-agent theory, and therefore has implications for accountability. These questions are beyond the scope of this dissertation.277 However, this distinction helps to illustrate the conflicting roles that the public service is expected to carry out. On the one hand, the public service is expected to be loyal to the Government of the day, while also maintaining a degree of independence from politics in order to be able to loyally serve future governments.278 In this way, politicians and bureaucrats work together to develop and implement policy to best serve the public interest.279
The relationship between the political and neutral Executive is largely governed by conventions that seek to “balance or limit the level of political responsiveness” or in other words set the limits on the ideal of loyalty balanced against the ideal of independence.280 This also throws up a question of whether the public service could legitimately refuse to take instructions from the Government of the day that it viewed as contrary to public interest.281 If we consider that public service independence is one of two roles that the public service can take on, and by independence we mean more of an advisory role then this concern is less apparent. The Ministers will be focused on the Government’s policies and the public service can advise the Minister on how to give effect to those policies with regard to the public as a whole. This view seems to be reflected in the wording of the purpose of the public service in the Act which states: “The public service...supports the Government to pursue the long-term public interest”.282 That being said, the boundaries drawn by convention or law is one way that the inherent tensions in the relationship between the bureaucracy and democratically elected representatives is reconciled.283
277 Janet McLean, above n 275, at 11.
278 Sossin, above n 271, at 58.
279 Sossin, above n 271, at 1.
280 Rodney Scott, Michael Macaulay and Eleanor Merton, above n 228, at 3.
281 Abigail Marshall “Reliance of constitutional principles on employment relationships in the public service” (LLB(Hons) Dissertation, Victora University of Wellington, 2021), at 20.
282 Section 11.
283 Rodney Scott, Michael Macaulay and Eleanor Merton, above n 228, at 4.
Public Service Act formalizes several conventions and thus establishes certain parameters of the relationship between the public service and Ministers. The principles are “traditional in content but novel in form” through being articulated in law.284 For a public servant giving advice this is significant because in the face of political pressure public servants can assert that they have a legal duty to behave in a certain way. For example, to be politically neutral, give free and frank advice, foster a culture of open government and so on. In the words of Minister Hipkins “enshrining the purpose and principles of the public service in legislation will help ensure that successive Governments and generations of [administrators] do not forget about their key attributes, and any decision to fundamentally alter this aspect of New Zealand’s system of government will require a deliberate decision to do so”.285 Scott et al. suggest it also provides formal normative boundaries for behaviours in decision making rather than relying on informal inculcation of identities and values to occur within organisation.286 This is an attempt to strengthen and provide clarity over certain parameters in the political-neutral Executive relationship to safeguard public service independence.
The basic idea that public bodies need legal authority to act is relatively orthodox or at the very least the idea that that they cannot act contrary to law.287 Under the State Sector Act, the Act’s purpose included a focus on responsiveness to the “collective interest of government” with no mention of long-term public interest.288 This lead to a concern that New Zealand’s public service had “become overly focused on implementing the expectations of the Government of day, at the expense of building capacity to plan for the needs of future generations”.289 Under the Public Service Act, the purpose of the public service includes a focus on “supporting government pursue the long-term public interest” which appears a direct response to this concern. This shift to long-term interest rather than the shorter-term interests of government with a 3-year electoral cycle arguably requires a legislative signal from Parliament. Legislative support arguably strengthens the role of the public service in investing in research and advice
284 Rodney Scott, Michael Macaulay and Eleanor Merton, above n 228, at 1.
285 Public Service Legislation: Paper 2 – A unified public service, above n 7, at [21].
286 Rodney Scott, Michael Macaulay and Eleanor Merton, above n 228, at 5.
287 Public Service Act, s 11.
288 State Sector Act 1988, s 1A(b); Public Service Act s 11.
289 Constitutional Advisory Panel, above n 266, at 70.
that support longer-term goals that may not be in the Government of the day’s interests (beyond the election cycle).
In doing so, the Public Service Act defines the previously unstated role of the public service as an institution that supports “constitutional and democratic government” rather than an institution that “operates in the collective interests of government”.290 The principles, public service values, and shared spirit of service characteristic are all part of constructing this more visible role as part of the constitutional framework of responsible government in New Zealand. In attributing a purpose to the public service, the legislature gives a ‘face’ to the public service that was previously unwritten. Hence, it goes some way to more clearly situating the public service within our constitutional arrangements even if the implications of this are still up for discussion. It also provides greater visibility and clarity to citizens as to what the public service does and what it can expect of them. Further, the new Act reflects an acknowledgement of the role of the public service towards the public and the public interest that was notably absent from the State Sector Act, which as the title implies was focused on serving the State.
Findings of this analysis indicate that there is support for the Public Service Act’s principles and the purpose having substantive legal effects and serving important constitutional functions. The substantive legal effect comes from the normative force of the principles that may be better described as an indirect legal effect. This normative quality is supported by the leadership model under the Public Service Act that enables the principles to serve a communicative function aimed at changing behaviour and attitudes. In the context in which the Public Service operates, legitimacy and the rule of law go hand in hand. Hence, where there is legislative recognition of principles the public service will strive to give effect to them. A cynical view could still argue that these normative effects depend on a heroic leadership model to deliver change and there is an element of truth in that perspective. Without leadership, it is hard to see how some of the more aspirational aspects of the legislation will be delivered. However, the purpose and principles also serve an important enabling and protective constitutional function by setting some boundaries between the political and neutral Executive. It recognises the
290 State Sector Act, s 1A(b); Public Service Act, s 11.
important independent role that public servants have in serving governments which suggests these provisions are likely to have substantive impact in practice.
V What could this mean in practice?
Given the Act only recently came into force, this part is of necessity speculative and future focused. However, if the purpose and principles were to have the effects claimed in Part IV, we would likely see a substantive effect on the behaviors of public servants and public service practices (although legislatively unspecified). While it is potentially harder to observe the protective and enabling function of these provisions, it would be anticipated to involve practices that are in tension between the role of the public service (the neutral Executive) and the Minister (the political Executive).
This part, therefore, considers where this might be seen in practice through three examples and the associated legal implications. Specifically, in relation to the public service’s role in “facilitating active citizenship” and the requirement on leaders to “foster a culture of open government”. First, where public service agencies develop practices that increase the availability of proactively released information (thereby fostering a culture of open government). Second, where a practice for greater citizen participation in the design and development of policies and services is implemented. Finally, in the public service’s role in supporting the Crown’s relationship with Māori under the Treaty of Waitangi (Te Tiriti o Waitangi).
Proactive release was viewed by Minister Hipkins, in 2022 as part of progressing towards a more open government.291 This included, “encouraging agencies and Ministers to make more information available proactively” reflecting the “fostering a culture of open government” principle.292
291 Cabinet Office “The next steps in public release of information”(17 May 2022) CAB-22-MIN-0168.01 at [3].
292 Cabinet Office, above n 291, at [1].
1 Current legislative framework up to date?
Proactive release of information is a practice that pre-dates the Public Service Act and is where the government releases information in advance of receiving a request under the OIA.293 This practice grew out of the principle of availability established by the OIA.294 Ironically, preemptive disclosure was thought to undermine the operation of the Act. There was a concern that preemptive disclosure could affect the Government’s ability to run smoothly and prevent public servant’s providing free and frank advice to Ministers.295 As a result, the OIA did not envisage proactive release practices. For example, the OIA provides indemnity for information that is “made available in good faith” under the OIA, but no protection for information that is released preemptively of a request.296
Hence, in promoting proactive release there is a risk of legal proceedings being brought against agencies. This risk has been recognised by both the Ombudsman and the Public Service Commission (institutions with a supervisory role in the operation of the OIA). Both institutions have issued policies to help guide agencies manage the risk through “due diligence checks”.297 As part of the due diligence check, agencies need to undertake the normal assessments they would if they were making information available under the OIA (together with and civil and criminal liability risk assessments).298
Although Ministers are responsible for the release of their documents (e.g. Cabinet papers), Hipkins suggested it would be best practice for Ministers to proactively release only on the recommendation from public service agencies.299 This reflects the role of public servants in
293 Gwen Hamilton and Edward Willis “A Survey of Ministerial Compliance with the Official Information Act 1982” (2022) 29 Canta LR 58, at 83.
294 Official Information Act, s 5; Internal Policy Proactive Release of Official Information (Te Kawa Mataaho Public Service Commission, January 2021).
295 New Zealand Committee on Official Information Towards Open Government (Government Printer, December 1980), at 19.
296 Section 48.
297 Guide: Proactive Release (Ombudsman, December 2020); Internal Policy Proactive Release of Official Information (Te Kawa Mataaho Public Service Commission, January 2021).
298 New Zealand Committee on Official Information, above n 295, at 3.
299 Cabinet Office, above n 291, at [13].
advising on and promoting openness of government. However, is also an area of potential tension between the neutral and political Executive. The neutral Executive may advise on proactive release which may not always be in the political executive’s interests. Additionally, the potential threat of legal action is in tension with fostering a culture of open government. The fact that alternative processes are required to manage legal risk suggests that the OIA is falling behind the modern norms and expectations of government behaviour. New Zealand is also out of step with countries like Australia that have provided for pre-emptive release with wider indemnity provisions.300 Hence, the behaviour promoted by the Public Service Act will make the legal risks associated with proactive release more time-consuming and ultimately support “long-standing calls for reform” of the OIA.301
Another area where a change in practice would be anticipated is citizen participation. The public service has in recent years been scoping out and developing ways to “advance active citizenship...responsiveness, and transparency of government”.302 This work has stemmed from New Zealand’s commitment to the OGP that predated the Public Service Act.303 With two aspects of open government under the partnership being greater transparency and increasing civic participation.304 However, the Public Service Act enables the public service to progress the civic participation aspect by providing a legal authority for such action to occur.305 The most recent National Action Plan (fourth) for 2023-2024 includes a commitment to adopt a common community engagement tool.306 This builds on the Third National Action Plan’s development of tools and policy that “support the Public Service to apply the International
300 Freedom of Information Amendment (Reform) Act 2010, (Cth) at s 90.
301 Gwen Hamilton and Edward Willis, above n 293, at 57.
302 New Zealand’s Fourth National Action Plan. Te Tauwhā o ngā Mahere Mahi ā-Motu o Aotearoa 2023-2024,
above n 156, at 10.
303 New Zealand’s Fourth National Action Plan. Te Tauwhā o ngā Mahere Mahi ā-Motu o Aotearoa 2023-2024, above n 156, at 6.
304 Open Government Partnership New Zealand “New Zealand’s Involvement Open Government Partnership New Zealand <https://ogp.org.nz/open-government-partnership/>
305 Section 11.
306 At 7.
Association for Public Participation (IAP2), Public Participation Framework”.307 The IAP2 framework employs a spectrum of public participation depending on the “goals, timeframe, resources and levels of concern in the decision being made”.308 The spectrum ranges from inform, consult, involve, collaborate and empower.309 Currently, the Department of Prime Minister and Cabinet provides access to the tool on its website which matches the level of appropriate community engagement with the level of impact that the decision will have for policy projects.310 It is presently a tool to ‘assist’ policy advisors on the level of participation appropriate.311 Looking to the future, it would be anticipated that significant changes in practice would be observed across the public service as a whole, with more activity moving towards the “collaborate and empower” end of the spectrum.
1 Implications for Judicial Review?
Should the spectrum be adopted by agencies and used as common practice across the public service, it might over time have implications for judicial review. While the IAP2 is a contextual inquiry it does change expectations on the meaning of “consultation”, which becomes an umbrella term for a spectrum of citizen involvement. It suggests that heightened obligations of public participation are appropriate in certain instances. In terms of procedural fairness, this could be quite significant. The Court already sees natural justice as a flexible concept that involves a contextual analysis, and in establishing a right to consultation takes into account the impact of a decision and the need for government efficiency.312 However, the consultation requirement that may arise, as currently interpreted by the Courts, is on the lower end of the IAP2 spectrum. As practice develops, it is conceivable that expectations could include collaboration and empowerment on the other end.313 Should the spectrum become common practice across the public service, the Court may consider that it could require or read in expectations of heightened participation standards. This view would be strengthened given part
307 At 7.
308 IAP2 Spectrum of Public Participation (IPA2 International Federation, 2018).
309 IAP2 Spectrum of Public Participation, above n 308.
310 The Policy Project: Community Engagement Design Tool (New Zealand Government, 30 October 2020).
311 The Policy Project: Community Engagement Design Tool, above n 310.
312 CREEDNZ Inc v Governor-General [1981] 1 NZLR 172 (CA).
313 IAP2 Spectrum of Public Participation, above n 308.
of the purpose of the public service is to “facilitate active citizenship”.314 Alternatively, a legitimate procedural expectation could be found for a particular public engagement procedure to be followed if all public service agencies started using the spectrum and over time set precedent for behaviour.315 Hence, in bringing into effect the commitment in the OGP and in trying to “advance active citizenship” the Court may keep in step with these changes and hold the Executive to the heightened public engagement standards it adopts.
The forgoing potential directions for increased openness and greater public participation, indicate a further potential direction for change. The Act outlines a role envisaged for the public service with respect to “supporting the Crown in its relationships with Māori under the Treaty of Waitangi (te Tiriti o Waitangi).316 Section 14(2) states that the public service does this through its leaders317 having a responsibility to develop and “maintain the capability of the public service to engage with Māori and understand Māori perspectives”. In addition, in matters of employment there is a requirement to recognise the “aims and aspirations of Māori, employment requirements of Māori, and the need for greater involvement of Māori in the public service”.318 The public service leaders are held accountable to Ministers for upholding this obligation.319
This arrangement conceives of Ministers and the public service as having different roles (although both are in a sense part of the Crown) in the Crown-Māori relationship. There are also many ways that “the Crown” can be “understood in common law and political practice”.320 However, at common law both public service and Ministers are thought of as servants of the
314 Public Service Act, s 11.
315 Hugh Green Ltd v Auckland Council [2019] NZHC 635, at [71].
316 Public Service Legislation: Paper 3 – Te Ao Tūmatanui/Our commitment to improving the public service’s responsiveness to Māori (26 June 2019) CPC-19-SUB-0008 Summary, at [20], [21].
317 Leaders include the Public Service Commissioner, public service chief executives, interdepartmental executive boards, and boards of interdepartmental ventures.
318 Sections 14(2)(ii), 73(3)(d).
319 Public Service Act, s 15(1).
320 Janet McLean “The Many Faces of the Crown and the Implications for the Future of the New Zealand Constitution” (2018) 107(4) Round Table 475, at 478.
Crown and act on the Crown’s behalf.321 So, it is not unusual for public servants and Ministers to have different roles with regard to the Treaty. In Treaty settlements, for instance, it is the Ministers who act on behalf of the Crown as Treaty partners.322 The legal “Crown” is thought of as something separate from the Government of the day in that it is “the Crown” who has the formal responsibility.323 The Crown/Māori relationship under the Treaty is understood today as a relationship between two distinct “spheres of influence”.324 Where the Crown’s authority to govern, or kāwangatanga is subject to Māori tino rangatiratanga entailing certain responsibilities, rights and interests.325 Thus, one of the roles of the public service in “supporting the Crown”, must be in recognising, considering and giving effect to Māori rangatiratanga when implementing government policy and agenda.326
In this context, the public service also has a role in relation to Māori that stems from its purpose in “supporting constitutional and democratic government”, to help “pursue the long term public interest” and “facilitate active citizenship”.327 Constitutional government in New Zealand is founded by the Treaty of Waitangi which includes in Article 3 a guarantee of all rights and privileges of citizenship.328 If citizenship is thought of in the way that the Denhardt’s intend, it involves supporting “active involvement in political life”.329 Additionally, Māori not only have Article 3 rights as citizens, but also as a Treaty partner with the Crown. The public service’s role in supporting Māori to take active involvement in political life would therefore be focused not only on facilitating involvement and participation in government policy decisions and services (as would be enabled for non-Māori citizens) but also on facilitating a conception of partnership that enables the exercise of rangatiratanga.
321 Janet McLean, above n 320, at 476.
322 Janet McLean, above n 320, at 478.
323 Janet McLean, above n 320, at 478.
324 Margaret Mutu and Moana Jackson He Whakaaro Here Whakaumu Mō Aotearoa: The Report of Matike Mai Aotearoa – The Independent Working Group on Constitutional Transformation (National Iwi Chairs Forum and Te Wānanga o Waipapa (University of Auckland), February 2016).
325 Edward Willis “Legal Recognition of Rights Derived from the Treaty of Waitangi” (2010) 8 NZJPIL 217, at 226.
326 Public Service Legislation: Paper 3 – Te Ao Tūmatanui/Our commitment to improving the public service’s responsiveness to Māori, above n 316, at [20].
327 Public Service Act, s 11.
328 Willis, above n 325, at 226.
329 Janet Denhardt and Robert Denhardt, above n 75, at 27.
This approach is consistent with the public responses to the proposed Treaty clause which showed that there was strong support for a genuine Treaty partnership to be reflected in how the public service engages with Māori “moving beyond a consultation model to one that is based on codesign”.330 This would support a genuine partnership being developed as opposed to an adversarial one.331 The public service’s expertise and improved capability to engage with Māori is utilised to support the Crown’s obligations under the Treaty. Further, are directed towards ensuring Māori are supported as a Treaty partner and better able to elect to participate as citizens with a distinct sphere of influence.
While speculative, this Part has aimed to illustrate how the normative, protective and enabling functions of the principles and purpose might be seen in practice. As well as that changes in procedure and behaviour that stem from these provisions have wider implications for our laws. They could either, reveal inconsistencies with other legislation or potentially lead to the development of the common law to be consistent with the change in practice. Furthermore, the protective and enabling function of these provisions could suggest that public service’s role in promoting active citizenship generally, has a heightened meaning in the Treaty context whereby Māori have rights and expectations of participation of citizens of the Crown but also in relation to being a treaty partner. Thus, substantive effects of these provisions could potentially be far-reaching.
Conclusion
The Public Service Act defines, for the first time, the purpose and principles of the public service. However, the aspirational and open-ended nature of these concepts raises the question of whether they will have any real legal effect. This dissertation argues that there is cause for optimism about the potential for the public service purpose and principles to have both legal and constitutional effects.
330 Public Service Legislation: Paper 3 – Te Ao Tūmatanui/Our commitment to improving the public service’s responsiveness to Māori, above n 316, at [27.2].
331 Public Service Legislation: Paper 3 – Te Ao Tūmatanui/Our commitment to improving the public service’s responsiveness to Māori, above n 316, at [27.2].
The Act represents an evolution in thinking about the role of the Public Service, particularly its relationship to the public. It signals a shift towards the public service enabling “active citizenship” and a requirement for public service leaders to "foster a culture of open government”. Such concepts align with New Public Service public administration theory which is underpinned by notions of democratic citizenship and citizens working in partnership with the Government. Given this, it is somewhat ironic that the Act sets up a self-contained system of responsibilities that leaves few levers for the public to hold public service leaders directly accountable. This conclusion was tested through an analysis which found a limited supervisory role for the Judiciary and the Ombudsman.
Despite the inability to directly challenge the Public Service Commissioner’s interpretation or articulation of the principles (e.g. in codes of conduct), it is argued that it is significant that these principles have been given the status of law. Thus, the Act potentially serves a different function from traditional instrumental legislation. Symbolic legislation theory provides a useful starting point for this analysis because the different functions of law can be conceptualized and tested. In the case of the Public Service Act, it is argued the provisions serve both a communicative, protective, and enabling function.
The communicative function of the provisions is supported by the leadership model (and associated legal responsibilities) established by the Act and has the potential to have a strong normative effect on behaviours. While this reflects a ‘top-down’ leadership-driven approach, there is also a wider interpretive community of public servants for whom having the principles in legislation will influence behaviour. Hence, the principles and purpose could be better described as having indirect legal effects in changing behaviours.
The provisions in the Act also have constitutional implications, as they serve a protective function by establishing some of the parameters in the relationship between the political and neutral Executive. The enabling function of the legislation is discussed in terms of allowing the public service to take a broader public interest perspective and a longer-term view. This further strengthens the parameters of the relationship between the neutral and political Executive that serve to safeguard public service independence.
Finally, this dissertation speculated on what might be observed in the behaviours and practices of public servants. This was explored through three areas where changed practices might be expected to foster a culture of open government and active engagement with citizens. Such changes would, in turn, impact the development of the common law and the Crown’s relationship with Māori.
Taken together, this analysis suggests that the new Act, with its shift in language from State to Public Service, signals not just a linguistic change but a potentially more fundamental and transformative one.
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H Other Resources
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