Shane Jones has a problem. The Hon Shane Jones, Minister for Regional Economic Development, Infrastructure and Forestry, and Associate Minister of Finance and Transport, has this problem. And the Hon Shane Jones, Member of Parliament for New Zealand First, has the same problem. He may well have a further problem inasmuch as in talking about his concerns about public service independence he may not have made it clear in what capacity he was doing so. Such is the nature of managing points of difference within multi-party cabinets.
To be fair, the Minister has justified his actions as being appropriate in his capacity as a Member of Parliament, and in this he is undoubtedly correct. But instability is the child of uncertainty and the lack of clarity around the capacity in which he is speaking is unhelpful.
We need to discuss context, and, without extending the discussion, part of it is historical. It is also constitutional.
New Zealand is a Westminster type of political and administrative system. There are a number of elements to this and they include the fact we have a constitutionally independent public service tasked with providing free, frank and comprehensive advice to the government of the day, and retaining the capacity to provide that advice to a future government of any persuasion. But it is also required to implement the policies of the government of the day.
The public service is an enduring institution – sometimes referred to as the ‘permanent’ government – but it is required to be responsive to a government that has a mandate from the electorate. That mandate may require changes to existing policy, and changes that may need to be made with some degree of urgency. That is the nature of things. When the mandate and time-frame is clear, a government has every right to expect responsiveness from the public service.
In New Zealand, an election does not result in a night of the long knives and a purging of the leadership of the public service.
But as a former secretary of the Australian Commonwealth— one Ken Henry — made clear in a speech to his staff in 2007, advice needs to be responsible as well as responsive. Put another way, the public service is required to furnish the government of the day with what it needs to hear and wants to hear, and what it needs to hear but may not want to hear. That is the nature of the bargain.
At the end of the day, public servants may well repeatedly advise, but the government of the day may choose to act at variance with that advice. That, too, is part of the bargain.
Another part of the bargain hinges on the use of the word ‘independence’. Put simply, the government of the day reserves the right to make final decisions when it comes to the appointment of chief executives, but it makes those decisions on the recommendation of the State Services Commissioner. Behind the black letter of statute and the closed doors of the Beehive, who knows what kinds of conversations take place. But the reality is there has only ever been one occasion when the government of the day has declined – in a public and open manner – to accept a recommendation from the State Services Commissioner, and that was in 1990.
What distinguishes Westminster from Washington (and other presidential, as distinct from parliamentary systems) is that the government may change but the leadership of the public service does not. In New Zealand, the Prime Minister does not invite the Police Commissioner to have a one-on-one dinner with her and invite an expression of loyalty as the freshly-caught snapper is consumed. In New Zealand, an election does not result in a night of the long knives and a purging of the leadership of the public service.
The Hon Shane Jones Cabinet Minister is bound by collective Cabinet responsibility and, in that capacity, is obliged to make it clear his remarks are being made as a Member of Parliament.
Jones comments that he is attracted to the Australian approach. Sometimes referred to as a Washminster hybrid (a senior Australian public servant once suggested to me that ‘Axeminster’ might be more appropriate), some – but not all – incoming governments have terminated the employment of departmental secretaries.
Jones claims there is a need for some scatological ‘kickers’. And one senses he is bemoaning the absence of a ‘can do’ attitude. But one has to question how, if this is a systemic problem, this Government has been able to achieve a good deal in a relatively short period of time. Moreover, there is a sense it may not be the public service that is the perceived problem. It may well be the issue is more with the statutory arrangements the Minister and the public servants working to him in his portfolio areas are required to navigate. Some clarity on this would help.
Let’s be clear. This is about balance. It would be naïve to suggest that, in the past, public servants have not used the shield of responsible advice to cloak a degree of institutional scepticism that, by design, compromised the intentions of a government with a mandate. I have seen it first-hand. But there is no suggestion that, in the present climate, there is other than a quite functional and necessary balance between the two.
The Hon Shane Jones MP has every right to raise this matter for discussion. It is a healthy one to have. And given that the Government is presently reviewing the State Sector Act, it might even be characterised as timely (although one suspects it came as a surprise to his Cabinet colleagues and the State Services Commissioner). The Hon Shane Jones Cabinet Minister is bound by collective Cabinet responsibility and, in that capacity, is obliged to make it clear his remarks are being made as a Member of Parliament. To do otherwise, and — one presumes— without prior discussion with his Cabinet colleagues, is to risk a situation in which a problem shared (in this way) is a problem doubled.