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New Zealand Human Rights Commission Submissions |
Last Updated: 28 June 2015
6 October 2010
Clerk of the Committee
Education and Science Select Committee
Select Committee Office Parliament Buildings WELLINGTON
STATE SECTOR MANAGEMENT BILL 2010
1. The New Zealand Human Rights Commission (Commission) welcomes the
opportunity to comment on the proposed State Sector Management
Bill (the
Bill).
2. The Explanatory Note to the Bill decribes its purpose as being “to
amalgamate a number of existing agencies to achieve gains
in terms of financial
efficiencies, effectiveness, and future viability of agencies.”
3. The Commission is supportive of steps to reform the machinery of
government which increase effectiveness and increases public
access to and
engagement with public agencies and information.
4. However the proposal focuses unduly on potential cost savings at the
expense of transparency and political neutral maintenance
of official records.
The Commission is particularly concerned about the proposal that Archives New
Zealand (and the National Library)
be integrated into the Department of Internal
Affairs (DIA).
Constitutional Importance of Archives New Zealand
5. Archives New Zealand has an important constitutional role in securing and
reserving the Crowns records. This is not done solely
for the benefit of
historians. Rather it ensures the enduring accountability of government and as
such is a fundamental strand of
New Zealand’s
democracy.1
1According to the United Nations Development Programme (UNDP) the major attributes of good governance include:
• Participation of citizens in the decision-making process of the country;
• Respect for the rule of law, which is the extent to which legal frameworks are fair and impartially administered;
• Transparency, with the free flow of information as its linchpin;
• Accountability where the government, the private sector and civil
society organisations (CSOs) are accountable to the general
public, as well as
to institutional stakeholders (UNDP 1997: 5)
Level 1, Vector Building, 44 The Terrace, PO Box 12411, Thorndon, Te Whanganui a Tara Wellington 6011
Aotearoa New Zealand
Waea Telephone 64-4-473 9981 Waea Whakahua Facsimile 64-4-471 6759
Infoline / Toll free 0800 496 877 / TTY (teletypewriter) 0800 150 111 / infoline@hrc.co.nz www.hrc.co.nz
6. In an affidavit2 sworn in November 1997, one of our leading
constitutional experts, Sir Geoffrey Palmer stated that “it is a core
responsibility
of the State to maintain a proper and impartial record of the
decisions and activities of the New Zealand Government. Not only are
such
records an essential nourishment to the intellectual life of New Zealand, they
are an important instrument in the accountability
of governments... The
existence of a public record on every government exerts a salutary and
beneficial effect on Ministers and
that effect could be undermined if the
strength and integrity of the archive system in New Zealand is
diminished”.
7. National Archives, he continued, must be run “on the basis of professional judgement and it must be free from political bias or direction..... if the keeping of the National Archives is to be free of suspicion... [Therefore] it is necessary in my opinion for the Chief Archivist to be plainly and statutorily
protected from outside interference and pressure in the discharge of his or her
duties”... [As a consequence] the Chief Archivist should not be
responsible (in the sense of answerable for actions taken or
decisions made) to
any other person for the discharge of his or her statutory functions. This is
so whether that person is the Secretary
of Internal Affairs or a superior who is
interposed between him or her and the Secretary in a departmental
hierarchy” and
that “any significant intrusion in that statutory
independence will have the effect of undermining the integrity of the
Archives....”
8. The Commission is firmly of the view that any failure to preserve Crown
records can impact severely on the rights of citizens.
For example the failure
of an independent body (prior to the establishment of an independent archiving
agency) to ensure the full
and accurate reserving of Crown records in cases of
historic abuse whilst under the care of the State has had far reaching
implications.
In this instance records are for the most part non existent or at
best limited.
9. The Commission believes that independence is vital to Archives New
Zealand fulfilling its constitutional function and ensuring
the government and
officials are made and remain accountable. The Chief Archivist (CA) has an
important constitutional role in establishing
the procedures for the keeping of
official records and controlling both their preservation and their destruction,
and in particular
keeping any politically-motivated manipulation of records at
bay. To enable the CA to fulfil this function he or she must enjoy complete
operational independence.
The Bill
10. By integrating Archives New Zealand into the DIA and subjugating the
agency to officials superior to a downgraded CA, the Bill
risks undermining the
independence of the CA and severely impinges on New Zealand’s
constitutional and democratic protections.
More generally the right to
access
2 in support of the Archives and Records Association of New Zealand (ARANZ) and the New Zealand Society of Genealogists in their legal action against the then Secretary for Internal Affairs
to information is dramatically put at risk by any erosion of independence. So,
too, is vital public confidence in the state’s institutions.
11. Downgrading record management also risks calling into question New
Zealand’s standing with Transparency International (TI)
as the least
corrupt country in the world. Such a ranking ought not to breed complacency, and
such has been the international exposure
of the country’s ranking that the
prospect of any downgrading could carry significant risk.
12. It is true that the Bill goes some way to try and ensure the independence
of the CA is retained to some degree – requiring
the Chief Archivist to
act independenty in all his or her functions and duties and in exercising their
“professional judgement”.
13. However the Commission considers that this does not sufficiently ensure
the continued independent operation of the CA for the
following reasons:
conflict between the department acting on the basis of rights and
powers which flow from possession, and the CA acting on the basis of control rights.
• The Bill reduces the rank of the CA to that of a third tier civil servant.
He or she would be a mere employee of the chief executive of DIA. This arrangement substantially undermines the independence of the CA who will undoubtedly be subject to pressures from the department to act in a certain way. How, for example, can the CA be seriously expected to hold his or her superiors responsible for compliance with the Public Records Act, when those superiors are responsible for conducting the CA’s performance assessment and are his or her employer?
14. Assurances about the intent of the chief executive of DIA have been given.
The intention is to improve services, to strengthen the professional leadership of the CA and the National Librarian and to improve the funding available for
services by providing more effective support services. It has been stated that
the CA will be supported to the full in carrying out his or her statutory
responsibilities.
15. However, these assurances reflect the views of the current chief
executive and Minister. There is no ongoing statutory assurance
to protect the
independence of the CA and to ensure that Archives is not merely subsumed into
the management structure of DIA in
the future. In matters touching on the
constitution it would be more usual to embody these duties in law rather than
rest on assurances
of good intent.
Rational for merger
16. Archives New Zealand is highly regarded internationally. There is no
suggestion that Archives New Zealand is not operating to
its fullest potential
or that its statutory functions and constitutional role are not being fulfilled.
There is no reasonable reason
why the structure of Archives New Zealand should
be subject to reform at this stage.
Financial gains
17. It is not clear what savings can be made by merging Archives New Zealand
with the Department of Internal Affairs. Furthermore
there is a clear absence of
any analysis of the effects of such a merger on the democratic role of Archives
New Zealand, let alone
any evidence of financial imperatives having been
balanced against fundamental constitutional principles and rights.
18. Grant Robertson, the State Services Spokesperson for New Zealand Labour
Party refutes claims that financial savings can be made:
“on purely
financial grounds
these mergers just do not stack up. In addition the disruption and upheaval caused by jobs
losses and reduction in productivity will cost even more.”3
Advice
19. The analysis conducted and the advice given to Ministers in developing
this Bill is flawed. The Minister stated at the first reading
of the Bill
(presumably on advice from officials) that the proposed structure replicates
that which is effectively operating in other
jurisdictions. More specifically he
said that the National Archives of England and Wales exist within a larger
Department.
20. This is an inaccurate assesment of the situation in the United Kingdom.
The Keeper of Public Records (chief executive of the National
Archives (NA),
Historical Manuscripts Commissioner) is the head of a small government
department in its own right (and has been at
least since the 1958 Act). The
Ministry of Justice in the shape of the Permanent Secretary is responsible for
providing a lump sum
to the NA which it controls itself. NA also controls its
own appointments. We have been advised by Ms Sarah Tyacke, former
3 New Zealand Labour Party, Archives And Library Merger Does Not Stack Up. http://www.scoop.co.nz/stories/PA1003/S00438.htm
Keeper of the Public Records and now Chair of the International Records
Management Trust that the statement made to parliament was
incorrect (see
Appendix 1).
21. The NA website4 clearly states:
'The National Archives is a government department and an executive agency of
the Ministry of Justice. We incorporate the Office of
Public Sector Information
and Her Majesty's Stationery Office.
22. This arrangement preserves the independence of the chief executive of
NA
Recommendations
23. The Commission recommends that Part 3 of the Bill be removed and that a
period of consultation and accurate and robust analysis
takes places to
determine:
24. The Commission wishes to make oral representations on this submission.
Please contact Legal Officer Michael White to discuss further. His contact
details are:
DDI: 04 471 6752
Mobile: 021 041 2856
Email: michaelw@hrc.co.nz
Yours sincerely
Jeremy Pope Commissioner Kaihautu
4 http://www.nationalarchives.gov.uk/
Appendix 1
Full transcript of Questions for Oral Answer for Thursday, 03 June
2010
11. Internal Affairs, Department--Proposed Merger with National Library and
Archives New Zealand
[Uncorrected transcript--subject to correction and further editing.]
11. GRANT ROBERTSON (Labour--Wellington Central) to the Minister of
Internal
Affairs: Will the positions of National Librarian and Chief Archivist be employees of the Chief Executive of the Department of Internal Affairs
and
be accountable to him under the proposed merger of National Library and
Archives New Zealand into the Department of Internal Affairs?
Hon NATHAN GUY (Minister of Internal Affairs) : Once integration of the three departments is complete, the individuals holding the statutory positions will be employees of the Chief Executive of the Department of Internal Affairs, instead of the State Services Commissioner as is currently
the case. The independence and integrity of the Chief Archivist will be preserved. The status of statutory role of the National Librarian will also
be preserved.
Grant Robertson: In light of that answer, how does the Minister think That
the Chief Archivist will be able to maintain his or her
important constitutional
role to compel chief executives to deposit and maintain Government records if he
or she is subordinate to
another chief executive?
Hon NATHAN GUY: The statutory roles and functions of the Chief Archivist will be preserved and protected. I remind the member that when he looks around the world, he will see that in Australia the archives function
sits within the Prime Minister and Cabinet portfolio, in the United Kingdom it sits within the Ministry of Justice, and in Ireland the Chief Archivist
sits within the Department of Tourism, Culture and Sport. Those officials continue to have statutory independence.
SARAH TYACKE (FORMER HEAD OF THE UK NATIONAL ARCHIVES) COMMENTS
The situation in the UK is NOT exactly as stated by the Minister. The Keeper of Public Records ( Chief Executive of the National Archives, Historical Manuscripts Commissioner etc) is the Head of a small Govt Department
and an agency in the old terms, in his own right (and has been at least
since the 1958 Act).
The Ministry of Justice in the shape of the Permanent Secretary (and the Minister, also the Lord Chancellor now) is responsible for providing a lump sum to the TNA for its pay and rations which the TNA controls itself as well as its own appointments up to CEO but there are inevitable 'push - pull' issues from time to time. The Ministry runs the appointment boards for the new CEO/Keeper of Public Records on behalf of the Lord Chancellor to whom the Keeper reports twice a
year personally.
I quote: 'The National Archives is a government department and an executive agency of the Ministry of Justice. We incorporate the Office of Public Sector Information and Her Majesty's Stationery Office.' Taken from the TNA website
8/6/10
While its not a neat arrangement it preserves the independence of the CEO/Keeper to write to the depts. on records matters and get the records which is after all the main purpose of having a modern archives. The problem is always
that evryone thinks its a place for old stuff which it is but that's not what
its real contribution to Govt is in my opinion and that
of most records
managers/archivists. If there is a govt -wide issue then the Cabinet Office and
other offcials come into play and
normally if the Keeper is alert they will/can
play a part in all records issues. At present this the case with the
Hillsborough Independent
Panel and was with the Hutton Inquiry into the death of
Mr Kelly.
I could accept the phrase within 'the portfolio' but not within the Ministry
since the post and operation is clearly distinct.
Will the new arrangement allow of a separate entity and responsiblities and
the ability to advise other depts without the need for
another ministerial
official to have oversight - if not then its not the same.
Email to Jeremy Pope, 8 June 2010.
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