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Part 3: Chief Executives

142 A major policy driver for the proposals relating to Part 3 of the SSA was to articulate more explicitly the responsibilities of chief executives across two dimensions:

  • to take a broader, outward-looking and more collective view of their role (eg with regard to inter-agency collaboration and achieving sector results)
  • for strategic and medium term management of their department.

143 As noted above in the discussion about the purpose of the SSA, concepts about the collective interests of government and stewardship were prominent among the early proposals for changes to the Act. The BPSAG report elevated these concepts, along with leadership, to critical shifts needed to deliver better services and results. The report envisaged amendments to the SSA to include chief executive responsibilities: in cross-agency arrangements; for whole-of-government interests; and for the stewardship of their department, and for services to the public.

144 The prospective establishment of sector boards and departmental agencies clearly had implications for a Public Service chief executive's responsibilities. In addition to clarifying and updating individual responsibilities of chief executives, the SSA needed to be amended to:

  • provide for new collective ('joint and several') responsibilities of chief executives when acting as part of a sector board (subject to Cabinet agreement to legislate for sector boards)
  • clarify the respective responsibilities of chief executives and heads of agencies in departmental agency arrangements.

145 Other matters for review in part 3 of the SSA included:

  • providing for more flexibility in the composition of the appointment panel for chief executive positions
  • reconsidering the location of provisions for the selection criteria for chief executives
  • enabling the Commissioner to transfer chief executives between departments
  • simplifying the process for determining the conditions of employment of chief executives
  • broadening the provision for appointments to the position of acting chief executive
  • clarifying and broadening the scope of a chief executive's power to delegate
  • simplifying the process for reviewing the performance of chief executives
  • reviewing the special provisions applying to certain chief executives.

Chief Executive Responsibilities

The Act

146 Prior to the amendments, s32 set out the principal responsibilities of Public Service chief executives in the following terms.

"The chief executive of a Department shall be responsible to the appropriate Minister for -

(a) the carrying out of the functions and duties of the Department (including those imposed by Act or by the policies of the Government); and

(b) the tendering of advice to the appropriate Minister and other Ministers of the Crown; and

(c) the general conduct of the Department; and

(d) the efficient, effective, and economical management of the activities of the Department."

147 Section 33 charged chief executives to act independently and not be responsible to the appropriate Minister in matters relating to decisions on individual employees.

148 Section 34(b) of the Public Finance Act 1989 is also relevant. It made chief executives responsible to the Minister for –

"the financial management and financial performance of the department".

Commentary

149 Officials at the workshops referred to in paragraph 19 expressed a view that the responsibilities currently set out in s32 were at a mechanistic level. Though the responsibilities were important and should be retained, they represented day to day routine management. Officials thought that responsibilities in a revised SSA should be more dynamic and outward looking. Early proposals for change included:

  • the addition of some explicit individual responsibilities, essentially across two dimensions:
    • "looking across" – taking a horizontal, collective, big picture perspective
    • "looking ahead" – taking a longer-term, sustainability perspective
  • some relatively minor, but symbolically important, amendments to existing responsibilities in s32.

New individual responsibilities

Collective perspective

150 A frequent criticism of the SSA was that it focussed on chief executive responsibilities for their own department (the vertical dimension) and was silent on whole of government or collective interests (the horizontal dimension). While the Act did nothing to prevent departments from taking broader interests or impacts into account when preparing advice or implementing government policy, it did not encourage or promote all of government or cross-agency perspectives. The SSA was perceived as 'lacking teeth' to require departments to act in the greater interest, whether to collaborate in service delivery improvements or to participate in initiatives that would lower overall costs to government.

151 The State Services Commissioner's leadership role and the proposal for binding, collective governance arrangements (in statutorily established sector board arrangements, if agreed to by Cabinet) would provide the 'hard wire' solutions that were called for. The early thinking was that those initiatives should be reinforced by placing on chief executives a statutory responsibility for: the department's strategic planning (including but not limited to how the Department intends to act with regard for the collective interests of government). Those interests would not be a matter for definition in the SSA, but it would be incumbent on any chief executive to be aware of system-wide influences on the department, system-wide opportunities and connections that the department should make, and the reciprocal system-wide impacts and implications of the department's own policies and activities as well as those of related agencies. These matters should be fundamental to a chief executive's level of performance, and should be made an explicit rather than implicit responsibility.

Longer-term, sustainability perspective

152 Another fundamental aspect of a chief executive's responsibilities is the strategic, longer term dimension. The SSC's earlier discussion paper referred to it as "stewardship". A "steward" is commonly defined as a person who manages another's property or finances, or who administers something as the agent of another.

153 As mentioned in the discussion relating to the purpose of the SSA, good stewardship of an agency will include positioning it 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. A goal of stewardship is to ensure the long term sustainability, financial viability and organisational health of the agency. The SSC considered that stewardship of the department should be fundamental to the responsibilities of a chief executive, and should be made explicit in the SSA. The initial thinking considered the elements of stewardship potentially being incorporated in a phrase along the lines of being responsible for: the longer term sustainability, financial viability and organisational health and capability of the department.

154 SSC's discussion paper at one point included a recommendation that would set out the relationship between Ministers and chief executives, largely by codifying existing principles in the Cabinet Manual. While that proposal as a whole did not proceed, the importance of providing free and frank advice to Ministers was recognised by including it in the eventual Cabinet paper as part of the stewardship concept.

Responsibilities under the Public Finance Act 1989

155 Officials also considered it would be useful to add to the current list of responsibilities in s32(a)-(d), even with the proposed responsibility for stewardship. A new subsection 32(e) should specify that a chief executive's responsibilities include: the additional financial and reporting responsibilities under the Public Finance Act 1989. The primary reason for cross-referencing to the PFA would be to clarify that performance reviews by the Commissioner cover all aspects of chief executive performance, including the important responsibilities in the PFA.

Amendments to existing individual responsibilities

156 The SSC proposed relatively minor, but symbolically important, amendments to some of the existing individual responsibilities: expanding the responsibility in s32(b), and rationalising the elements in s32(c) and (d).

157 Section 32(b) made a chief executive responsible for: the tendering of advice to the appropriate Minister and other Ministers of the Crown. The SSC proposed the insertion of "... tendering of free and frank advice ..." (in addition to including free and frank advice in the concept of stewardship). These changes would firmly codify a well established role of a Public Service chief executive, which in practice was a de facto responsibility. Putting the tendering of free and frank advice to Ministers on a legislative footing would be consistent with s9(2)(g) of the Official Information Act 1982 which permits withholding official information in order to "maintain the effective conduct of public affairs through (i) the free and frank expression of opinions ... to Ministers of the Crown...".

158 Section 32(c) made a chief executive responsible for: the general conduct of the Department. Rather than being responsible for a department's general conduct, in reality a chief executive has more control or influence over the management of the department's activities. The SSC proposed that s32(c) be rephrased to make a chief executive explicitly responsible for: the management of the activities of the Department.

159 If s3(2)(c) was amended as proposed, parts of s32(d) would become redundant as currently expressed, ie responsibility for: the efficient, effective, and economical management of the activities of the Department. There would be an opportunity to turn this responsibility into one that is more consistent with the outward looking, results oriented themes in the BPSAG's report, ie responsibility for: the efficient and economical delivery of the services to be provided and the results intended to be achieved.

Recommendations to Cabinet

160 Cabinet agreed to the revised, updated and expanded set of chief executive responsibilities as recommended in BPS Cabinet paper 6 [CAB Min (12) 16/10, paragraph 88 refers], and as set out in the table on the next page.

161 A number of important changes were made during the legislation drafting process, as explained in the paragraphs following the table on the next page.

SSA, s32 CAB Min (12) 16/10, para 88 Introduction Bill

Section 32: The chief executive of a Department shall be responsible to the appropriate Minister for -

(a) the carrying out of the functions and duties of the Department (including those imposed by Act or by the policies of the Government); and

(b) the tendering of advice to the appropriate Minister and other Ministers of the Crown; and

(c) the general conduct of the Department; and

(d) the efficient, effective, and economical management of the activities of the Department.

 

Cabinet agreed that (subject to drafting refinements) chief executives will have responsibilities to the appropriate Minister for:

1   the department's responsiveness on matters relating to the collective interests of government

2   the longer term sustainability, organisational health and capability of the department and the capacity of the department to offer free and frank advice to successive governments

3   the carrying out of the functions and duties of the Department (including those imposed by act or by the policies of the government)

4   the tendering of free and frank advice to the appropriate Minister and other Ministers of the Crown

5   the management of the activities of the Department

6   the efficient and economical delivery of the services to be provided and the results intended to be achieved

7   the financial and reporting responsibilities under the Public Finance Act

Section 32(1): The chief executive of a department or departmental agency is responsible to the appropriate Minister for -

(a) the department's or departmental agency's carrying out the purpose of this Act; and

(b) the department's or departmental agency's responsiveness on matters relating to the collective interests of government; and

(c) the stewardship of the department or departmental agency, including of its medium and long-term sustainability, organisational health, capability, and capacity to offer free and frank advice to successive governments; and

(d) the stewardship of -

     (i) assets and liabilities on behalf of the Crown that are used by or relate to (as applicable) the department or departmental agency; and

     (ii)   the legislation administered by the department or departmental agency; and

(e) the performance of the functions and duties and the exercise of the powers of the department or departmental agency (whether imposed by any enactment or by the policies of the Government); and

(f)  the tendering of free and frank advice to Ministers; and

(g) the integrity and conduct of the employees for whom the chief executive is responsible; and

(h) the efficient and economical delivery of the goods or services provided by the department or departmental agency and how effectively those goods or services contribute to the intended outcomes.

Legislation drafting process

162 The legislation drafting process resulted in a range of refinements to better reflect the Cabinet decisions, or specifications to highlight more detail.

Significant changes

163 The Introduction Bill clarified explicitly that provisions applying to a chief executive of a department under the SSA would apply wherever appropriate to a chief executive of a departmental agency. The responsibilities in new s32(1) apply equally to chief executives of departmental agencies in relation to that part of the department that comprises the departmental agency. This clarification was consistent with BPS Cabinet paper 3 and CAB Min (12) 16/10 paragraph 32.

164 An important specification was made by inserting new s32(1)(a) to link a chief executive's responsibilities explicitly to carrying out the purpose of the SSA. This was consistent with the structure of the SSA commencing with a legislative statement of the purpose of the SSA that would set the scene and framework from which all other provisions cascade or are derived.

165 The responsibility for stewardship was subject to the most discussion and the most substantive drafting changes during this part of the process in relation to chief executive responsibilities. The changes were noted in the joint SSC/Treasury report referred to in paragraph 194.

  • Stewardship of the department - BPS Cabinet paper 6 encapsulated the concept of stewardship in three dimensions: longer term sustainability; organisational health and capability; and the capacity to offer free and frank advice to successive governments. These concepts were explicitly linked to stewardship of the department. In conjunction with the definition of stewardship in new s2, stewardship would encompass active planning, management and advice in light of the medium and long-term interests relating to departmental sustainability, health and capability, and capacity to offer free and frank advice.
  • Stewardship of other instruments or resources of the state - There are other dimensions to stewardship that were not captured explicitly in the elements outlined above. From a legislative drafting perspective, the SSC preferred to employ a concept with overarching application rather than take a more mechanical or list approach. However, because of the emphasis and attention that were likely to be placed on this new concept in the SSA, the Introduction Bill incorporated additional elements so that stewardship was not seen simply as stewardship of the department. The term encompasses a set of administrative responsibilities concerning other resources or instruments of the state for which chief executives have a duty of operational care and proactive risk management, with a view to looking after and improving the matters within the care. These administrative responsibilities include legislative instruments as well as non-departmental assets and liabilities of the Crown administered by the department (in addition to responsibilities under the PFA for all appropriations administered by the department).
  • Stewardship of the system - The Introduction Bill did not go so far as to include system care, management and improvement as an explicit component of the stewardship responsibility (eg, as though the Secretary for Education and the Director-General of Health have a stewardship responsibility for the education and health systems respectively). The non-inclusion of system stewardship was for two reasons. First, in practical terms, there would be substantial overlap with the separate responsibility in s32(1)(h) for: the efficient and economical delivery of the goods or services provided by the department or departmental agency and how effectively those goods or services contribute to the intended outcomes. Second, there are multiple players with leadership or governance roles in the education system, health system, and other systems at sector-wide level; they too would have elements of a stewardship responsibility with system impacts.

166 The Introduction Bill also included an explicit responsibility in new s32(1)(g) for: the integrity and conduct of the employees for whom the chief executive is responsible. This specification was part of the legislative scheme that links a chief executive's primary responsibilities explicitly to the purpose of the SSA. The phrase "the employees for whom the chief executive is responsible" caters for the separate groups of employees who come under the responsibility of a departmental agency chief executive or the chief executive of the host department.

Minor changes

167 Officials considered that there was sufficient overlap between the concepts in CAB Min (12) 16/10 paragraph 88.3 (carrying out functions and duties) and paragraph 88.5 (management of activities) such that they should be combined into a single responsibility. This is expressed in new s32(1)(e) as a responsibility for: the performance of the functions and duties and the exercise of the powers of the department or departmental agency (whether imposed by any enactment or by the policies of the Government).

168 The concepts in paragraph 88.6 in the CAB Minute are included in new s32(1)(h) in modified form. The rephrasing provides a better articulation of the relationship between the concepts of efficiency, economy (which relate to outputs) and effectiveness (which relates to outcomes, ie what is achieved).

  • "efficient and economical delivery of the services to be provided" is modified to "efficient and economical delivery of the goods or services provided"
  • "and the results intended to be achieved" is modified to "and how effectively those goods or services contribute to the intended outcomes"
  • new s2 includes a definition of "outcome". Deliberately, it is the same definition as that inserted into the PFA in January 2005.

169 A chief executive's financial and reporting responsibilities under the PFA differ in the case of a departmental, or a departmental agency, chief executive. Primarily for this reason, but also to avoid unnecessary legislative duplication, it was considered preferable that the PFA alone set out the respective financial and reporting responsibilities of chief executives of a host department and of a departmental agency.

Select Committee process

170 Very few submissions commented on the amendments to the responsibilities of chief executives. The submissions were favourable, particularly relating to stewardship and responsiveness to the collective interests of government. The PSA considered that s32 should go further and include responsibilities for collaboration with other public entities and have regard to the need for stewardship across the system. Associate Professor Bill Ryan considered the amendments relating to stewardship would benefit from a "more sweeping and historically-aware" definition. The submissions did not lead to any amendments to the chief executive responsibilities during the Select Committee process.

Chief Executive Responsibilities: Sector Board Arrangements

171 As noted in the discussion about sector boards, in relation to Part 2 of the SSA, Cabinet declined the proposal that boards be established under a new schedule to the SSA (CAB Min (12) 16/10, paragraph 45). Consequently, there was no need to legislate for chief executive responsibilities in board arrangements. However, the following few paragraphs record the policy thinking, as a matter of historic record and also in the event of a potential future appetite for such arrangements.

Policy intention

172 In sector board arrangements, the chief executives of the member departments would have joint and several responsibilities to the appropriate Ministers. The responsibilities would include:

  • the board's strategic planning
  • the carrying out of the functions and duties of the board
  • the tendering of free and frank advice to the appropriate Ministers
  • the disclosure of such information of their departments as is necessary to enable the board to discharge its functions
  • the financial and reporting responsibilities that fall within scope of a board under the Public Finance Act 1989.

173 The purpose of joint and several responsibilities would be to bind the member chief executives into collective decision making (eg consensus on recommendations to Ministers concerning sector priorities or resource allocation). Once the board makes a decision, each chief executive would be bound into what was agreed collectively, in much the same way as Ministers have collective Cabinet responsibilities, such that a chief executive cannot fall back on his or her individual responsibilities under the Act. Accordingly, the SSA would need to make it clear that the joint and several responsibilities take precedence over a chief executive's individual responsibilities in respect of departmental matters that fall within scope of a board's remit, as agreed by Ministers.

174 For the avoidance of doubt, the SSA would also need to clarify that the member chief executives on a sector board remain jointly and severally responsible, even when a decision was made by a chair with a casting vote. The principle of collective responsibility would continue to apply.

Recommendations to Cabinet

175 BPS Cabinet paper 4 set out the details and proposals for sector boards. The paper recommended changes to the SSA covering the above policy intentions, with additional specifications to the effect that:

  • the SSA will provide that the collective responsibilities of both a Public Service chief executive and a non-Public Service chief executive board member will take precedence over individual responsibilities to a Minister or Ministers
  • for the avoidance of doubt, the collective responsibilities of a Board member exclude any specified independent statutory functions under any Act for which a Public service chief executive is not directly responsible to a Minister or Ministers (e.g. Director of the Serious Fraud Office under s30(1) of the Serious Fraud Office Act 1990).
  • for the avoidance of doubt, the collective responsibilities of a Board member who is a non-Public Service department chief executive shall exclude any specified independent statutory functions under any Act for which that chief executive is not directly responsible to a Minister or Ministers (e.g. s16(2) of the Policing Act 2008).

Chief Executive Responsibilities: Departmental Agency Arrangements

Policy intention

176 In relation to the chief executive responsibility aspects of the proposed departmental agency model, a key feature is that the head of the agency would be directly responsible to the appropriate Minister for all the operational or service delivery functions of the agency. This feature would overcome the inherent difficulty in the current arrangements for departmental semi-autonomous bodies (SABs) because, despite the appearance of autonomy, the chief executive of the host department remains legally responsible for all the SAB's activities.

177 To give effect to the intended arrangement for departmental agencies, the SSA would need to be amended to specify that:

  • the head of a departmental agency is directly responsible to the Minister for the operational/service delivery functions of the agency, agreed by the appropriate Ministers
  • the chief executive of the host department is not responsible to the Minister for those functions.

178 In departmental agency arrangements, the chief executive of the host department would remain responsible for the employment and financial matters of the agency, but would delegate relevant matters to the head of the agency.

Recommendations to Cabinet

179 BPS Cabinet paper three dealt with departmental agencies. It included recommendations to amend the SSA to give effect to the above policy intentions, with the additional specifications that:

  • persons working on departmental agency business will be employees of the host department, but the chief executive of the host department will delegate his or her employer responsibilities for these employees to the chief executive of the departmental agency
  • a chief executive of a departmental agency is responsible for complying with obligations under the Official Information Act in relation to the departmental agency
  • provisions applying to a chief executive of a department under the SSA will be amended to apply to a chief executive of a departmental agency, with the exception of provisions relating to the employment of staff.

180 In addition, amendments to the PFA would set out the financial responsibilities of the respective chief executives of host departments and of departmental agencies.

Legislation drafting process

181 One of the key provisions in the Introduction Bill centred on the employer responsibilities of a chief executive of a departmental agency, specifically to give effect to Cabinet's decision that the host department's chief executive will delegate his or her employer responsibilities to the departmental agency's chief executive. As noted earlier in this paper in relation to Part 2 of the SSA, cl48 in the Bill replaced s59 in the SSA and included a "deemed" delegation mechanism to:

  • recognise that employees who work 'in' a departmental agency are legally employees of the host department
  • ensure that the host department chief executive delegates to the departmental agency chief executive his or her employer responsibilities in relation to individual employees 'in' the departmental agency.

182 As a consequence of the deemed delegation mechanism, the Bill had to:

  • specify the range of provisions that comprise the package of employer responsibilities of a departmental agency chief executive (these were specified in cl48 [new s59(2)] in the Bill)
  • amend s33 consequentially to impose on departmental agency chief executives the same duty that chief executives of departments (including host departments) have to act independently in matters relating to decisions on individual employees.

183 Elsewhere throughout the Introduction Bill, provisions that apply to a chief executive of a department under the SSA would also apply to a chief executive of a departmental agency, eg the Commissioner acts as their employer and reviews their performance. As noted above in the discussion relating to the individual responsibilities of departmental chief executives, the responsibilities in new s32(1) apply equally to chief executives of departmental agencies in relation to that part of the department that comprises the departmental agency.

184 Officials considered it unnecessary to specify in the SSA that a chief executive of a departmental agency is responsible for complying with obligations under the Official Information Act in relation to the departmental agency. This is the practical effect of new s27A (definition of department, departmental agency, host department) in combination with revised s32 (chief executive responsibilities).

Select Committee process

185 Few submissions on the Bill commented on this aspect of the departmental agency model. No amendments were made to the Bill, apart from the minor technical changes mentioned above in relation to part 2 of the SSA (new organisational forms: departmental agencies).

Panel Composition for Chief Executive Vacancies

The Act

186 Section 35(4) required a panel to be established for each chief executive vacancy, and stipulated that the panel was to comprise the Commissioner as chairperson, the Deputy Commissioner and one or more persons appointed by the Commissioner after consultation with the appropriate Minister or Ministers.

Commentary

187 There are instances where it is relatively straightforward to fill a particular chief executive vacancy and it is disproportionate in terms of time and commitment to require the full participation of both the Commissioner and the Deputy Commissioner. The SSC proposed that there should be flexibility to permit the Deputy Commissioner to substitute for the Commissioner as chairperson of a panel, and for the Commissioner to appoint another employee in the State Services Commission to substitute for the Deputy Commissioner. The substitute for the Deputy Commissioner should come from within the SSC on the basis that the appointment of Public Service chief executives is the SSC's core business and single most important function.

Recommendation to Cabinet

188 Cabinet agreed with the proposal above, as submitted in BPS Cabinet paper six.

Select Committee process

189 No changes were made during the Select Committee process to the amendment in cl28(3) and (4) of the Bill.

Criteria for Selecting Chief Executives

The Act

190 Section 35(12) set out a list of criteria to which the Commissioner or Governor-General, as the case may be, had to have regard in deciding upon the person to be appointed as chief executive of a department 21 .

Commentary

191 The SSC considered that it was unnecessary to retain subsection (12) of s35 in the SSA, primarily for two reasons. First, the content in subsection (12) largely duplicated the content in other sections where they are better located or expressed in more detail, notably:

  • the revised and expanded chief executive responsibilities in new s32(1), in conjunction with the link between those responsibilities and the new purpose to the SSA
  • the good employer and EEO related principles and responsibilities that remained in s56.

192 Second, the selection criteria are standard matters for a chief executive position description. Locating the criteria in the position description provides more flexibility to refine them over time or to tailor them to the particular position.

Recommendation to joint Ministers

193 The proposal to remove subsection (12) was developed after the suite of seven BPS Cabinet papers was submitted in May 2012.

194 Consequently, in July 2012 the proposal was submitted as part of a joint SSC/Treasury report to the Ministers of State Services and of Finance, who were authorised by Cabinet to "make decisions on minor and policy decisions that arise during the drafting of the legislation" [CAB Min (12) 16/10, paragraph 3.2].

Select Committee process

195 No changes were made during the Select Committee process to the amendment in cl28(10) of the Bill.

Transfer of Chief Executives between Departments

The Act

196 Section 35 sets out for the process for the appointment of chief executives. The SSA requires a separate appointment process for the chief executive of each department when there is a vacancy. A merit-based transparent process is required in keeping with the requirements of the SSA and the obligations of the Commissioner as a 'good employer'. Section 36 sets out the process for the reappointment of chief executives.

Commentary

197 The desirability of allowing the Commissioner to transfer chief executives between Public Service departments in certain circumstances was identified in the first version of SSC's internal review paper in January 2010.

198 While the existing chief executive appointment process could be unnecessarily cumbersome and obstruct the Commissioner from acting decisively when circumstances require (eg, if there is a sudden departure of a chief executive and urgent need for someone to step into the role), there was no desire to move away from the requirements to follow a transparent, merit-based appointment process; this process is vital to underpin political neutrality.

199 Nonetheless, the ability to transfer a chief executive from one department to another could be desirable where the Commissioner believes that it is in the best interests of the Public Service to do so, particularly where there is an immediate need to fill a critical vacant position or impending vacancy. The ability to transfer chief executives in this situation wouldprovide the flexibility to adapt quickly to the needs of the system at any given time, would foster a development path for chief executives, provide opportunities for chief executives to gain a wider range of skills and experience, and ensure they are working where they can be most effective.

200 SSC officials considered that a transfer should occur only following prior discussion with the appropriate Minister(s) and would follow a process similar to that applying for reappointments – from s35(6) of the SSA onwards. The Commissioner would still be required to forward the person's name to the Minister, for referral to the Governor-General and a decision on whether to accept or decline the Commissioner's recommendation.

201 The requirement for a chief executive to be appointed in the first instance through the full s35 process would remain. Only an incumbent chief executive could be transferred into a vacant chief executive position, or impending vacancy. The vacancy created by that transfer could potentially be filled through another transfer of an existing chief executive, but ultimately the position left vacant following a transfer or series of transfers would have to be filled by an appointment made under the full process in s35 (ministerial input on relevant matters; notification of the vacancy; appointment panel process).

Recommendations to Cabinet

202 The BPSAG's report went further than the SSC's proposal above to enable the transfer of incumbent chief executives into vacant chief executive positions or impending vacancies. Chapter 5.18 in the report considered that the Commissioner should be supported by greater powers and authorities than at present, in particular (among other leadership initiatives) to:

  • "proactively deploy chief executives and specified second and third tier staff to anywhere within the State services in response to system needs, and
  • designate some positions as fixed-term developmental roles and jointly agree appointments with chief executives".

203 BPS Cabinet paper two set out a range of proposals covering the Commissioner's leadership role in relation to: leadership development; working with chief executives to fill senior positions in departments; and transferring existing departmental chief executives between departments. The deployment of second and third tier staff could occur in the context of designating and filling key positions in the Public Service. This aspect of the legislative changes is discussed below in relation to Part 4 of the SSA.

204 In relation to the transfer of chief executives, Cabinet agreed with the recommendation that the SSA be amended to permit the Commissioner to transfer an existing chief executive into a vacant chief executive position in any Public Service department, with the concurrence of the chief executive, and following consultation with the appropriate Minister(s), if the Commissioner reasonably believes it is in the public interest to do so.

Legislation drafting process

205 The process of drafting the legislative changes ensured the following refinements were incorporated in cl31 in the Introduction Bill:

  • provision was made in new s37A for departmental agencies, whereby the chief executive of a department or departmental agency could be transferred into a vacancy in the position of chief executive of that department or departmental agency, as applicable, or any other department or departmental agency
  • provision was made for transfers into a vacancy or impending vacancy in a chief executive position
  • the effect of new s37A(4) - not requiring the notification of the vacancy, establishing a panel or examining other applicants - was to make such transfers non-contestable.

Select Committee process

206 During the Select Committee process, advisers considered the potential scenario where an existing chief executive may transfer into a vacancy in the position of Government Statistician (chief executive of Statistics New Zealand). The Commissioner makes an appointment to this position directly, without referral to the Governor-General in Council. The Departmental Report recommended that, in the same way, a transfer into that position should be exempt from the process requirements in s35(7) to (10) in the SSA (which do apply to other transfers under cl31 in the Bill – new s37A).

207 On subsequent drafting advice from PCO, the Revision Tracked version of the Bill for FEC's consideration changed the cross-references in s35 from s35(7) to (10) to s35(6) to (11). This technical change provides for a consistent legislative regime for:

  • the appointment or reappointment of the Government Statistician (under s37(3) of the SSA, nothing in subsections (6) to (11) of s35 applies in these cases)
  • the transfer of an existing chief executive into the position of Government Statistician under new s37A.

208 Nonetheless, despite the non-application of s35(10)(b) of the SSA, the Departmental Report recommended that the Bill should require the Commissioner to publicly announce the appointment of a Government Statistician, as is done for other chief executives. This is now provided for explicitly in s37(2) of the SSA.

Process for Determining Conditions of Employment of Chief Executives

The Act

209 In accordance with s38(3), the conditions of employment of chief executives are determined in each case by agreement between the Commissioner and the chief executive. As part of the process to finalise the conditions of employment, the Commissioner first had to obtain the agreement of the Prime Minister and the Minister of State Services to the conditions.

Commentary

210 The requirement in s38(3) for the Commissioner to obtain the agreement of the Prime Minister and the Minister of State Services to a chief executive's conditions of employment ensured that the Commissioner complies with government policy relating to those conditions. It also corresponds with other legislative provisions requiring Crown entity boards, DHBs and TEIs to consult the Commissioner on the terms and conditions of employment for their chief executives. Together, these provisions prevent extravagant expenditure of public funds, and ensure consistency across the State services.

211 While a technical amendment to this requirement may not have any real effect in practice because the same administrative process would be required, the SSC considered that the same objective would be achieved by the Commissioner "consulting" the Prime Minister and the Minister of State Services on proposed terms and conditions. This amendment would preserve the requirement for the Commissioner to take into account government policy while at the same time upholding the Commissioner's independence in negotiating with chief executives and ensuring consistency across the State services by aligning the SSA with corresponding legislation.

Cabinet process

212 Cabinet agreed with the recommendation in BPS Cabinet paper six that the SSA be amended to require the Commissioner to consult the Prime Minister and the Minister of State Services (rather than obtain their agreement) when determining the conditions of employment of a chief executive [CAB Min (12) 16/10 paragraph 92].

Select Committee process

213 No changes were made during the Select Committee process to the amendment in cl32(2) of the Bill.

Appointment of an Acting Chief Executive

The Act

214 SSA s40 made provision for an acting chief executive in situations where:

  • there was a vacancy in the position of a chief executive, or
  • the incumbent was absent from duty and unable to delegate his or her responsibilities under the SSA to any other person.

215 In these situations, the Commissioner could direct the chief executive of another department or an employee in the State services to exercise or perform the chief executive's functions, powers or duties.

Commentary

216 As noted in the discussion relating to Part 2 of the SSA concerning reorganisations, an issue associated with the implementation of structural change would be resolved by broadening the provision enabling the Commissioner to appoint an acting chief executive.

217 From time to time governments decide to transfer functions from an existing department to a new department that will be established on a future date. This could happen when some functions transfer from an existing department that will still continue to carry out a reduced or changed range of functions, or as a transfer of functions when an existing department is to be disestablished.

218 In such situations, offers of employment are required to be made to employees whose services will be sought in the new department. However, offers technically could not be made until a chief executive or acting chief executive of the new department was appointed, as it is the chief executive who is required to make the offer of employment. This situation was unwieldy and often artificial, where employees could not be provided with certainty and the government was delayed in implementing its decisions when it is simply rearranging activities and functions.

219 A solution would be to broaden the provision in s40 that enables the Commissioner to appoint an acting chief executive. The provision should be broadened across two dimensions:

  • the situations for appointing an acting chief executive should be expanded to include appointing an acting chief executive when a new department is to be established on a known date
  • the range of persons who may be appointed as an acting chief executive should be expanded to include any person whom the Commissioner considers suitable to discharge the responsibilities that will be placed on the acting chief executive. Such a person could be, for example, a retired former departmental chief executive who is prepared to step into the role for several months, or some other suitable person from elsewhere in the wider public sector, or a previous senior public servant who was currently in the private sector.

220 An acting chief executive would require the power to act, for example, to commence preparations for the operation of the new department including making offers of employment to employees in the department(s) from which functions are to transfer. The offers and any other obligations would be subject to the new department coming into existence, and would take effect as from that date. An acting chief executive would only be a temporary appointment: as soon as practicable after the formal commencement of the new department, a chief executive must be appointed under s35 of the SSA.

Recommendation to Cabinet

221 Cabinet agreed with the proposals above, as submitted in BPS Cabinet paper 6 and as recorded in CAB Min (12) 16/10, paragraphs 93-95. However, the wording of the Cabinet paper and, more importantly, paragraph 93 in the CAB Minute had the effect of tying the Commissioner's ability to appoint any person as an acting chief executive to situations where a new department is to be established.

222 The policy intention was to propose that the Commissioner be able to appoint any person as an acting chief executive also in the existing situations in s40, ie when there is a vacancy or a chief executive is absent from duty. Giving the Commissioner this ability explicitly would avoid any perception of a "work around", as under the existing legislation. In situations where the Commissioner wanted to appoint a person who was not an incumbent departmental chief executive or an employee in the State services, the Commissioner appointed them to the Public Service Consulting Group, effectively making them an employee of SSC, thereby qualifying them to act under the Commissioner's direction as an acting chief executive.

223 Accordingly, in July 2012 officials submitted a policy clarification proposal as part of the joint SSC/Treasury report referred to in paragraph 194. The report commented that the proposal would in effect clarify the existing practice of occasionally appointing an acting chief executive from outside the State services. A person appointed from outside the State services would still need to be employed in the State services for the duration of the acting period to allow the Commissioner to set terms and conditions of employment and for payroll purposes. In effect, the proposed amendment would not significantly change current practice or process, but would clarify the Commissioner's ability to appoint any person as an acting chief executive, avoid perceptions of a "work around", and promote the message of better public services by engaging talent from both the public and private sectors.

Legislation drafting process

224 In addition to the substantive amendments, PCO included technical amendments in the Introduction Bill to refer explicitly to departmental agencies as well as departments, and to the Commissioner appointing, rather than directing, persons to act as an acting chief executive.

Select Committee process

225 No changes were made during the Select Committee process to the amendment in cl34 of the Bill.

Chief Executive Powers to Delegate

The State Sector Act and Crown Entities Act

226 There are differing powers of delegation in the various parts of the State services.

227 In the Public Service, s41 of the SSA conferred on chief executives the authority to delegate their functions and powers to another "chief executive or an employee". Section 2 defines "employee" in relation to the State services as meaning "an employee in any part of the State services, whether paid by salary, wages, or otherwise". There were some critical considerations in relation to any delegation:

  • a chief executive who delegated a function or power may continue to exercise that function or power (s41(7))
  • the chief executive remains responsible for the actions of any person acting under the delegation (s41(7))
  • the chief executive may revoke the delegation in writing at will (s42).

228 The Crown Entities Act spells out in s73(1) the range of people to whom the board of a Crown Agent, autonomous Crown entity (ACE) or independent Crown entity (ICE) may delegate the entity's functions or powers:

  • a member or members (i.e. of the board)
  • the chief executive or any other employee or employees, or office holder or holders, of the entity
  • a committee(i.e. of the board)
  • any other person or persons approved by the entity's responsible Minister
  • any class of persons comprised of any of the persons listed in the four previous bullets
  • a Crown entity subsidiary of the statutory entity.

229 As with Public Service chief executives, a Crown entity board that delegates may continue to exercise the functions and powers, remains responsible for the actions of the delegate, and may revoke the delegation at will.

230 A Crown entity board clearly had a more extensive power to delegate than a Public Service chief executive. By virtue of CEA s73(1)(d) the board may delegate to "any other person or persons" as long as they are approved by the entity's responsible Minister. A Crown entity has the power to delegate, for example, to the chief executive of a state-owned enterprise, or to the head of a community based or private sector organisation that may be better placed to deliver certain services to a group of clients.

Commentary

231 The previous sections in this paper comment on the desirability of making a whole of government flavour explicit in the SSA, including the proposal that operating in the collective interests of government should be reflected in the purpose of the SSA as something that the state sector system should promote and uphold.

232 In the SSC's view, the SSA should facilitate operating in the collective interests of government by providing for a permissive system of seamless and widespread powers to delegate the exercise of statutory functions and powers between agencies, and even to non-government service providers where that is warranted. A delegation regime of this scope would facilitate:

  • locating decision making with those who are better placed than the department to make decisions in certain circumstances
  • improving the efficient and effective delivery of services, by delegating functions in certain circumstances to those who are better placed to deliver
  • potentially avoiding the need for structural change in certain cases.

Delegations inside the Public Service

233 The SSC's initial proposal for agencies within the legal Crown (ie, departments, prospective sector boards and departmental agencies), was for a legislative regime whereby:

  • a chief executive may generally delegate any statutory function or power to any person in the Public Service who would have the power to subdelegate
  • for the avoidance of doubt, a delegation may be made to a secondee or contractor working in or for the agency
  • in all cases, the legislation would continue to make it clear that:
    • the chief executive who grants a delegation would continue to be able to exercise the functions and powers, would remain responsible for the actions of the delegate, and could revoke the delegation in writing at will
    • the power to delegate is subject to any express statutory provision that states a particular function or power may not be delegated.

Delegations outside the Public Service

234 In order for a chief executive within the legal Crown to delegate a statutory function or power to a person or agency outside the legal Crown (eg, Crown entity; non-government organisation) it would be appropriate for reasons of transparency and accountability to Parliament to impose certain checks and balances on such delegations. The SSC's initial proposal included the following measures:

  • the Minister's approval should be required. The advice to the Minister should explain why a delegation is appropriate rather than solely contracting with the other party for the provision of services
  • there should be no power to subdelegate, to avoid the risk of widespread dissemination of functions and powers that Parliament allocated to the Crown and for which Ministers are ultimately responsible
  • the delegation should be explicitly accounted for in the annual report.

Recommendations to Cabinet

235 Cabinet agreed [CAB Min (12) 16/10, paragraph 90] with the recommendation in BPS Cabinet paper 6 that the SSA be amended to enable departmental chief executives to delegate the exercise of any of their statutory functions or powers:

  • within the legal Crown to any person who would have power to sub-delegate to another person within the legal Crown
  • to a person or agency outside the legal Crown: subject to the appropriate Minister's approval; subject to the restriction that the delegate may not subdelegate; and with an obligation to account for the delegation in the annual report.

Legislation drafting process

236 The legislation drafting process added a number of technical details to help give effect to Cabinet's policy decisions.

237 The Introduction Bill clarified that the power to delegate applied to chief executives of departmental agencies as well as departments.

Delegations inside the Public Service

238 New s41(1A) in the Introduction Bill clarified that a chief executive may delegate to any other Public Service chief executive or Public Service employee, or to anyone "working in the Public Service as a contractor in relation to a function, duty, or power of the Public Service". This phrasing in relation to contractors was to distinguish between individuals contracted to work on departmental business (who could be delegates), and others such as cleaners or trades people doing electrical or other repairs inside departmental premises, but not contracted to carry out departmental business.

239 An amendment to s41(2) clarified that delegations by a delegate under new s41(1A) may be made to the same range of persons, ie any Public Service chief executive or employee, or a contractor as defined in the preceding paragraph.

Delegations outside the Public Service

240 Three new subsections were inserted to set out the regime for delegations to persons outside the Public Service.

241 New s41(2A) provided for three aspects of the regime:

  • the Minister may approve a person outside the Public Service to be a delegate
  • any person could be approved, ie delegations were not limited to persons within the Public Service or even the wider State services; "person" includes individuals or "legal persons" such as companies
  • a delegate outside the Public Service did not have the power to subdelegate.

242 New s41(2B) required the delegating chief executive to note the delegation in the annual report and indicate how effectively it was carried out.

243 New s41(2C) specified that the same statutory obligations that apply to delegations carried out within the Public Service (eg, obligations under the Official Information Act 1982 and the Ombudsmen Act 1975) apply also to delegations carried out by approved persons outside the Public Service.

Select Committee process

244 The initial joint SSC/Treasury Briefing to the Finance and Expenditure Committee on the State Sector and Public Finance Reform Bill, February 2013, noted that existing provisions would remain intact and continue to apply, including:

  • the delegating chief executive will remain responsible for the delegated function or power, as currently the case under s41(7)
  • the power to delegate under SSA s41 is subject to any other statutory provision that prohibits, restricts or places conditions on a power to delegate.

245 The submissions to FEC focussed mainly on concerns and perceived risks relating to the ability to delegate functions or powers to persons outside the Public Service. Advisers acknowledged the views expressed in the submissions and agreed that certain amendments would enhance the provisions in the Bill. Accordingly, the Departmental Report recommended amendments to:

  • amend s41(1) in the SSA to clarify that delegations are to be in writing, and that functions or powers delegated to a chief executive by a Minister or the Commissioner may not be delegated without their prior written approval
  • amend new s41(1A) to limit delegations to a "function or power" (the current scope of what may be delegated), not a "function, duty, or power" as provided for in cl35(2) of the Bill
  • insert a clarification in new s41(2A) to the effect that the Minister's approval to delegate a function or power outside the Public Service must be in writing and made prior to the delegation occurring
  • insert a new provision such that a delegate outside the Public Service must also comply with all relevant obligations in a code of conduct set by the Commissioner under s57(2)
  • insert a new specification in s41(3) such that a delegate is "subject to the same restrictions" as the chief executive in exercising functions or powers in the same manner and with the same effect as if they had been conferred on that person directly by the SSA; for example, an important set of restrictions, if a delegation includes financial authority, is the need to follow Treasury instructions and other requirements regarding public financial management
  • insert a new provision to the effect that, in cases where the chief executive or delegate writes to a third party to inform him or her of an action taken by the delegate, the written document must state that the action was taken by a delegate of the chief executive; it must give the delegate's name and office; and inform that a copy of the delegation may be inspected at the chief executive's office.

246 Separately from the amendments in response to submissions, advisers also recommended in the Departmental Report:

  • an amendment to new s41(1A) to include secondees from elsewhere in the State services as potential delegates in relation to a function or power of the Public Service: it was the explicit intention that they be included within the scope of a chief executive's power to delegate, and the omission of a provision to that effect was an oversight in the Bill drafting process
  • the insertion of a provision to clarify explicitly the ability of a delegate in the Public Service (including contractors and secondees in relation to a function or power of the Public Service) to subdelegate within the Public Service; this was in contrast to delegations outside the Public Service, which may not be subdelegated.

247 FEC discussed in depth the delegation provisions in the Bill, especially in relation to delegations to persons outside the Public Service. FEC requested departmental advisers for written information on: "whether there should be provision for additional safeguards in relation to delegating functions and powers outside the Public Service, for example, conflict of interest safeguards particularly in relation to delegating regulatory powers".

248 The advisers' response, April 2013, can be located on the parliament website 22 and internally within SSC (doc #2024851). Rather than summarise the advice in this paper, it would be preferable for the reader to refer directly to the source material.

249 At a subsequent meeting in April 2013, FEC requested further written information on the following:

  • "clarification regarding the distinction between contracting and delegating, with examples, in the context of proposed amendments to s41 that would enable a Public Service chief executive to delegate functions or powers to persons outside the Public Service, including to the private sector. The request arises principally out of concerns about the impact on accountability through the availability of performance information for Parliament, particularly risks of access to information being denied, eg on grounds of commercial sensitivity
  • "consideration of inserting in the Bill a statement of principle to the effect that rights of access to performance information should be no less than if the function or power were carried out within the department; alternatively, an assurance that there would be no lessening of accountability in connection with a delegation outside a department
  • "at the FEC meeting on 10 April 2013, advisers referred to statutes that place limitations or restrictions on a chief executive's power to delegate, such as s33 of the Serious Fraud Office Act 1990: FEC has asked what other legislation is in place that restricts chief executives from delegating powers".

250 The advisers' response is on the parliament website( 23 ) and is available internally within SSC (doc #2024852).

251 At a following meeting, FEC "requested consideration of a conflict of interest provision, possibly based on wording from the Cabinet Manual, to apply to delegations outside the Public Service".

252 Readers can go to the parliament website 24 , or within SSC to internal doc #2024854, for a copy of the advisers' response. In the end, a further safeguard was inserted into new s41(2A) such that a chief executive may delegate to persons outside the Public Service only after "satisfying himself or herself that any potential conflicts of interest will be avoided or managed". This safeguard was in addition to obtaining the appropriate Minister's prior written approval.

253 The Revision Tracked version of the Bill incorporated a small number of other amendments and legislative tidy-ups:

  • new s41(1A) was drafted to continue the ability of a chief executive to delegate to "the holder for the time being of any specified office" in the Public Service (ie, in addition to specifying that delegations may be made to other Public Service chief executives and employees, and to secondees and contractors in relation to a function or power of the Public Service); delegations to an office, eg chief legal advisors, chief financial officers, and the Government Chief Information Officer, do not need to be refreshed if the office holder changes
  • new s41(2A) required delegations to persons outside the Public Service to be of "a clearly identified function or power"; this specification was designed to avoid uncertainty or ambiguity; prevent 'scope creep' of what was included in a delegation; and prevent generic delegations, eg "all my functions under [a named] Act"
  • new s41(2D) was added to clarify that information held by a delegate outside the Public Service in relation to a delegated function or power is, for the purposes of the Official Information Act 1982, deemed to be held by the delegating chief executive; this provision was designed to facilitate the operation of the OIA in relation to any function or power delegated to persons outside the Public Service; in the SSA this provision is in s41(2E)
  • new s41(2E) was added to specify that the OIA and the Ombudsmen Act 1975 apply to a delegate outside the Public Service, in relation to a delegated function or power, as if the delegate were an organisation named in Schedule 1 of the Ombudsmen Act 1975; in the SSA this provision is in s41(2F).

Process for Performance Review of Chief Executives

The Act

254 Section 43 makes the Commissioner "responsible to the appropriate Minister or appropriate Ministers for reviewing, either generally or in respect of any particular matter, the performance of each chief executive".

255 Section 2 defines "appropriate Minister" in relation to a department as "(a) the Minister responsible for the department; or (b), where 2 or more Ministers are responsible for different functions of a Department, the Minister responsible for the relevant function of the Department".

Commentary

256 The practice was to include in the review process every Minister responsible for any function of the department. This practice had built up an expectation that all appropriate Ministers would be included in the annual performance review of a departmental chief executive. From time to time the practice had proven unnecessarily onerous. A performance review may cover matters relating to only one or two of the Ministerial portfolios in a Department, or may relate to a subset of the Department's overall functions. An example of when this might occur was the former Ministry of Economic Development, where there were nine Ministerial portfolios and four Associate Ministers.

257 Preliminary feedback on SSC's discussion paper for the review of the SSA suggested that the Act should include a provision to clarify that the Commissioner has discretion to determine which Ministers to include in a review process, having regard to the scope of functions under review.

258 The SSC Legal Team's view was that an amendment to this effect seemed unnecessary in light of:

  • s43 specifically providing for the Commissioner to review "either generally or in respect of any particular matter " a chief executive's performance; and
  • s2 distinguishing between "appropriate Ministers" in cases where a chief executive is responsible to more than one Minister for different functions.

Cabinet and legislation drafting process

259 No recommendation was made to amend s43.

260 During the drafting of the Bill, PCO made a technical amendment to the definition of "appropriate Minister" in s2, to include reference to the Minister responsible for a departmental agency, and for functions of a departmental agency.

Special Provisions in Relation to certain Chief Executives

The Act

261 Section 44(1) provided that sections 35, 36, 38, 39, 43 and 91 did not apply to the Solicitor-General, the Controller and Auditor-General, Commissioner of Police, Director of the Government Communications Security Bureau (GCSB) and the State Services Commissioner. These sections provide for:

  • the appointment process for Public Service chief executives (s35)
  • the reappointment process (s36)
  • the Commissioner to set conditions of employment of chief executives (s38)
  • the removal from office of chief executives (s39)
  • the review of the performance of chief executives (s43)
  • transitional provisions with the coming into force of the SSA (s91).

Commentary

262 Redundant references to the Controller and Auditor-General, Commissioner of Police, and s91, are covered later in this paper under the heading of technical amendments.

263 Notwithstanding exemption from the provisions referred to in s44(1), the Solicitor-General, Director of GCSB and the State Services Commissioner are Public Service chief executive positions. The question was whether and how they should be treated differently to other chief executives of Public Service departments.

Solicitor-General

264 There is no statute that provides for the employment of the Solicitor-General or that relates to the Crown Law Office (a Public Service department). Accordingly, there are no statutory provisions that apply to the appointment, term and conditions, removal from office or review of the performance of the Solicitor-General. The Solicitor-General holds office 'during the pleasure' of the Governor-General.

265 The question was whether the SSA should include provisions for the appointment, term and conditions, removal from office and review of the performance of the Solicitor-General. There are considerations of constitutional, legal and operational independence to many aspects of the Solicitor-General's position. SSC's discussion paper on the review of the SSA commented that this should not, however, prevent the Act from providing for the appointment, setting of the term and conditions and removal from office of the Solicitor-General. Such provisions should not impact upon the constitutional role and independence required of the Solicitor-General. They would be consistent with modern administrative arrangements that help bring about enhanced levels of transparency and accountability.

266 Reviews of performance, as with those applying to the Commissioner of Police and those that could apply to the State Services Commissioner, should not include how the Solicitor-General acquits his or her constitutional role. Neither would such reviews inquire into legal decisions that must be made independently by the Solicitor-General, such as decisions on stays of execution, prosecutions, appeals, opinions and the like.

267 Reviewing the performance of the Solicitor-General in acquitting his or her duties as chief executive of the Crown Law Office as a department would, however, fall within scope. Such reviews would be entirely consistent with the recent review of the role and functions of the Solicitor-General and the Crown Law Office by Miriam Dean QC and David Cochrane. Their report, among the consolidated recommendations, includes the recommendation that "Only the Chief Executive functions of the Solicitor-General be subject to performance review by the State Services Commissioner".

Director of GCSB

268 Relatively recently, Cabinet directed that, when the opportunity arises, amendments should be made to the Government Communications Security Bureau Act 2003 that would introduce more specific provisions in that Act for the appointment, term and conditions, removal and review of performance of the Director of GCSB (DES Min (10) 3/1).

269 As a result, at the time of the review of the SSA, no recommendation was put forward to amend s44 in respect of the Director of GCSB.

State Services Commissioner

270 Provisions relating to the appointment, term and conditions of employment and removal from office of the State Services Commissioner (and his or her Deputy) are provided for in the SSA separately from ss 35-36 and ss38-39. Accordingly, the exemptions provided for in s44 should continue to apply to the Commissioner.

271 There was no provision, however, for a review of the performance of the Commissioner, similar to that in s43 in relation to other Public Service chief executives. The question was whether or not the SSA should provide for reviews of the performance of the Commissioner. If yes, a separate review provision would be required because reviews of the performance of chief executives under s43 are undertaken by the Commissioner. A review of the performance of the Commissioner would be in respect of the Commissioner's performance when undertaking his or her responsibilities as chief executive. The Commissioner's independent statutory functions and powers would not be included among the matters under review, similarly to performance reviews of the Commissioner of Police under the Policing Act 2008.

272 Feedback on the SSC's discussion paper was silent on the possibility of inserting a performance review provision in respect of the Commissioner. Specifying who might be responsible for the review remained an unanswered question. In the end, no recommendation was advanced to insert such a provision in the SSA.

Recommendations to Cabinet

273 Cabinet agreed with the recommendation that the SSA be amended to remove the exemption applying to the Solicitor-General from chief executive performance reviews by the Commissioner. Specifically, Cabinet agreed that the reviews would apply explicitly and solely to the Solicitor-General's responsibilities as the chief executive of a department, and explicitly exclude performance of the independent and constitutional functions of the office of the Solicitor-General [CAB Min (12) 16/10 paragraphs 97-98].

Select Committee process

274 No changes were made during the Select Committee process to the amendment in cl37 of the Bill.

 

21 A person who: (a) can discharge the specific responsibilities placed on that chief executive; (b) will imbue employees of the department with a spirit of service to the community; (c) will promote efficiency in the department; (d) will be a responsible manager of the department; (e) will maintain appropriate standards of integrity and conduct among employees of the department; (f) will ensure that the department is a good employer; (g) will promote equal employment opportunities

22 http://www.parliament.nz/en-nz/pb/sc/documents/advice/50SCFE_ADV_00DBHOH_BILL11610_1_A327692/response-to-information-requests-redundancy-provisions

23 http://www.parliament.nz/en-nz/pb/sc/documents/advice/50SCFE_ADV_00DBHOH_BILL11610_1_A328837/response-to-further-information-requests-contracting-v

24 http://www.parliament.nz/en-nz/pb/sc/documents/advice/50SCFE_ADV_00DBHOH_BILL11610_1_A331599/response-to-information-requests-delegations-workforce

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