15 The purpose of the SSA was expressed in the long Title quoted in the table below. This is set alongside the long Title of the foundation Act of 1912 and the pivotal Act of 1962.
|Public Service Act 1912||State Services Act 1962||State Sector Act 1988|
|"An Act for the Regulation of the Public Service"||"An Act to provide for the appointment of a State Services Commission, to assist in promoting the efficiency of the State services in the performance of their duties, and in respect of the Public Service to ensure that their members are impartially selected, fairly remunerated, administratively competent, and imbued with the spirit of service to the community"||
(a) to ensure that employees in the State services are imbued with the spirit of service to the community; and
(b) to promote efficiency in the State services and other agencies; and
(c) to ensure the responsible management of the State services; and
(d) to maintain appropriate standards of integrity and conduct among employees in the State services; and
(e) to ensure that every employer in the State services is a good employer; and
(f) to promote equal employment opportunities in the State services; and
(g) to provide for the negotiation of conditions of employment in the State services and assistance to other agencies on conditions of employment; and
(h) to repeal the State Services Act 1962, the State Services Conditions of Employment Act 1977, and the Health Service Personnel Act 1983"
16 Modern law drafting practice tends to set out the purposes of an Act in one of the preliminary sections of the Act rather than in a long Title that precedes the legislative provisions. The SSC's preference from early in the review was that the long Title be replaced by a new section setting out the purposes of the SSA, probably as a new s1A located immediately after the short Title and commencement.
17 The question was: what purposes should the SSA serve to meet the current and ongoing needs of the State services, and accurately reflect current practice? First, it was useful to recall what was addressed by the Acts of 1912, 1962 and 1988.
- Public Service Act 1912
- State Services Act 1962
- Problem: "The State Services ... appear to us to have been living for years on their human capital ... The difficulty of maintaining (let alone improving) the quality of administrative leadership and of professional skill is the main problem facing the State Services today" 5
- Reform objectives: "To recommend such changes ... as will best promote efficiency, economy, and improved service in the discharge of public business, having regard to the desirability of ensuring that the Government service is adequately staffed, trained, and equipped to carry out its functions" 6
- State Sector Act 1988
- Problem: "The zest for reform in 1987 arose out of frustration at a set of management and employment arrangements in the public service that had remained largely unchanged since a royal commission in 1962 and a management philosophy that dated back to reforms from an earlier commission in 1912. Those existing arrangements were seen as a key part of a public service management system characterised by poor performance specification, few incentives to perform well and to promote the interests of the government of the day, and an inadequate level of efficiency" 7
- Reform objectives: "In particular the ministers wanted emphasis on clear managerial authority, clear organisational objectives and effective systems of accountability" 8
18 This paper includes separate sections about the role and principal functions of the State Services Commissioner; the following paragraphs concern the purpose of the SSA itself.
19 In October 2011 the SSC held several workshops with officials from the Treasury, Department of the Prime Minister and Cabinet, and the Office of the Controller and Auditor-General, to discuss a range of initial proposals 9 . The clear view expressed by officials was that the purposes of the SSA should be pitched at the level of overarching principles that encapsulate enduring qualities intrinsic to a high performing, outward looking system of State services. The view was expressed that some of the objectives in the current long Title were mechanistic, relatively low level statements; and the operational provisions in the SSA should cascade from the overarching purposes.
Existing purposes to be retained
20 Certain qualities are fundamental to the very nature of New Zealand's system of State services.
21 Political neutrality – The replacement of political patronage through a non-political Public Service was at the heart of the reforms a century ago. The ability of the State services to serve successive governments relies on State servants performing their duties professionally, without bias towards one political party or another, in such a way that their agency maintains the confidence of its current Minister and of future Ministers. The SSA should provide for the ethical responsibilities of State servants, including maintaining political neutrality in the performance of duties and appropriate standards of integrity and conduct among employees in the State services and other agencies.
22 Spirit of service to the community – The agencies that comprise the State services do not exist for their own benefit. They operate as instruments of the Crown in respect of the Government of New Zealand and, in doing so, provide a myriad of services to the community. These services are paid for through taxes and other revenues raised from communities and individuals. State servants should respect the nature and purpose of the services they provide, and deliver them in the appropriate spirit of service.
23 Workforce arrangements – The good employer obligations applying in the Public Service and Crown entities are important features of the State services. The SSA should continue to reinforce these responsibilities and to set out responsibilities for employment agreement negotiations. These activities are subsets of the workforce matters and personnel arrangements that the SSA should continue to provide for in the Public Service.
24 Culture of excellence and efficiency –While the SSA should continue to promote efficiency in the State services and other agencies, this attribute is part of a wider vision for the State services. It is a vision of being driven by a culture of excellence and efficiency across all aspects of the State sector system. These qualities should drive system design, capability, operations and performance.
25 To meet contemporary and longer term needs, the SSA should also promote or foster other fundamental qualities of the State services.
26 Collective interests of government – A defining characteristic of New Zealand's public management system is how it concentrates decision-rights and accountabilities with departmental chief executives or boards of Crown entities. This arrangement supports a strong ability to deliver against the 'vertical' commitments within a single agency but has struggled to support 'horizontal' leadership and responsibility. In reality, agencies often need to operate cohesively as parts of one system in order to deliver services and achieve results. Coordinating activities, collaborating on joint initiatives, dealing with complex problems that cross agency boundaries, contributing to mutual priorities and objectives are normal requirements on many agencies. Agencies should also be conscious of the system-wide impacts of their activities, including the fiscal impacts of their decision making on a number of fronts, including procurement practices and remuneration processes. The SSA should foster a system-wide perspective where agencies operate with due regard for the collective interests of government.
27 Culture of stewardship across the system – The concept of "stewardship" embodies the responsible planning and active management of another's property or finances. Common features of good stewardship include positioning an agency to meet its medium and long term objectives and strategies; and ensuring there is appropriate infrastructure, management systems and succession planning in place to enable it to do so. Prior to the review of the SSA, the Act was silent on these aspects of chief executive or board responsibility. There was a risk, especially in times of restrictive budgets when resources are directed on current needs and priorities, to let medium and long term objectives and strategies, including organisational 'health' and capability, to slip from the horizon. Yet (while recognising that individual agencies will come and go), agency sustainability is critical to service delivery and the careful, proactive administration of the resources of the state. The SSA should foster a culture of stewardship across the system.
Recommendations to Cabinet
28 During the preparation of the draft Cabinet paper, there were several iterations of the proposed wording of the purposes of the SSA. The key point, as noted in BPS Cabinet paper 6 (paragraph 9) was that the proposed text was deliberately pitched at the level of the State sector system, rather than particular functions. The purposes of the SSA should set the scene and framework from which all other provisions in the Act cascade or are derived.
29 Accordingly, the Cabinet paper proposed that the purpose of the SSA should incorporate the following concepts (subject to legislative drafting refinements): An Act to promote and uphold a State sector system that –
- is imbued with a spirit of service to the community
- operates in the collective interests of government
- provides for the ethical responsibilities of State servants, including the maintenance of appropriate standards of integrity and conduct among employees in the State services and other agencies (this was simplified in the Introduction Bill to "maintains appropriate standards of integrity and conduct")
- provides for employment arrangements in the Public Service (the Introduction Bill changed this phrase to "provides for workforce and personnel matters"; and the Bill included an additional separate purpose: "meets good-employer obligations")
- ensures political neutrality in the performance of duties (changed in the Introduction Bill to "maintains political neutrality")
- is driven by a culture of excellence and efficiency across the system
- fosters a culture of stewardship across the system.
Select Committee process
30 Throughout this paper, phrases relating to 'changes to the Bill during the Select Committee process' technically refer to the Committee's recommended amendments as reflected in the Revision Tracked version of the Bill that accompanies the Committee's report to the House.
31 The Finance and Expenditure Committee (FEC) did not discuss use of the term "state sector system". The submission by the Public Service Association (PSA) supported the general policy intent behind a 'whole-of-system' view but believed the lack of definition would create confusion and suggested amending the phrase to "promote and uphold State services that ...". Because this issue is pivotal to the whole scheme of the SSA and the thrust of the BPS reforms, the following explanation in the Departmental Report (paragraphs 13-15) is quoted in full.
"13. The term "State services" as recommended by the PSA would be problematic because it refers to a defined group of agencies (the diagram in Annex A refers 10 ). This group of agencies is too narrow to form the 'boundaries' or framework of the SSA, because there are aspects of the SSA that extend beyond this group. For example:
a. when there are machinery of government reviews or proposals under existing s6(a) - i.e., advice on the desirability of or need for the establishment, disestablishment or amalgamation of any agency or agencies - the Commissioner's advice may relate to state-owned enterprises, tertiary education institutions and Offices of Parliament, all of which are outside the scope of the "State services"
b. the Commissioner's mandate under s57(1) to set minimum standards of integrity and conduct by issuing a code of conduct explicitly applies to the Parliamentary Service, which is outside the "State services", and
c. Parts 7 and 7B of the SSA confer various employment-related functions and responsibilities on the Commissioner in relation to tertiary education institutions, which are outside the "State services".
14. The phrase "State sector system" is deliberately not defined in terms of individual agencies or groups of agencies. The term and the list in (a) to (h) 11 above concern the operations and performance of the system as a whole. The "State sector system" refers to any aspect of the public management system. In its broadest sense, this refers to the interlocking set of relationships, processes, conventions and statutory arrangements that shape the way the State sector functions. It includes, for example, the strategy and priority setting system, policy and service delivery coordination arrangements between agencies, performance improvement and review systems, the design of the State sector, the systems to ensure the capacity and capability to perform, and the values and culture inherent to the State sector.
15. The deliberate intention underpinning the phrase 'State sector system" is to shift focus away from agency boundaries or groups, and to emphasise the system-wide foundations that matter."
32 The departmental advisers 12 agreed with the PSA that a state sector system that "provides for workforce and personnel matters" should be amended to "is supported by effective workforce and personnel arrangements". The PSA noted it is the SSA itself, not the "system", that "provides" for workforce and personnel matters.
33 Section 4.1 of the Departmental Report explains why advisers did not support the submission by the PSA that the purpose statement should include a clause relating to the Treaty of Waitangi.
3 Report of the Royal Commission of Inquiry on the State Services in New Zealand 1962 (McCarthy Report), ch 2.6
4 McCarthy Report, ch 1.14
5 McCarthy Report, ch 1.21
6 McCarthy Report, pg ix
7 Public Management in New Zealand, Graham Scott, pg 6
8 Scott, ibid. Pg 1
9 SSC doc #1712787v3
10 Annex A in the Departmental Report, not this paper
11 The proposed purposes of the Act
12 Officials from the State Services Commission and The Treasury