384 In addition to the substantive changes to the SSA as discussed throughout the previous sections of this paper, a small number of technical amendments were also desirable to:
- make the statutory definitions of "Crown entity" consistent
- transfer the Commissioner's function relating to EEO from Part 2 of the SSA to the personnel provisions in Part 5
- clarify how the appointment and review provisions fit together
- streamline the provisions for advice on matters of integrity and conduct
- remove a small number of redundant provisions.
Cabinet and Select Committee processes
385 Cabinet agreed with each recommendation to make the technical changes outlined in the following paragraphs.
386 The Select Committee process made no changes to the Bill in respect of these technical amendments.
Definition of "Crown entity"
387 The following definition of "Crown entity" was inserted into the SSA as from 25 January 2005, when the Crown Entities Act 2004 (CEA) and the State Sector Amendment Act (No 2) 2004 came into effect.
Crown entity -
(a) means a Crown entity within the meaning of section 7 of the Crown Entities Act 2004; but
(b) does not include a tertiary education institution or a Crown Research Institute or any of their subsidiaries
388 Also as from 25 January 2005, the definition of "State services" was amended to include the following subsections -
(ab) includes a Crown entity; and
(ac) includes a Crown Research Institute.
389 The inclusion of subsection (b) in the definition of Crown entity was a legislative mechanism to exclude Tertiary Education Institutions, Crown Research Institutes, and their subsidiaries, from the Commissioner's mandate under s57(1)(b) to set minimum standards of integrity and conduct that are to apply in Crown entities. As from 25 January 2005, the Commissioner's mandate to set such standards was extended from the Public Service to the other agencies included in s57(1), except that the mandate was not to include TEIs, CRIs, and their subsidiaries.
390 In the SSC's view, it would be preferable to delete subsection (b) from the definition of Crown entity and replace it with a subclause in s57(1) that excludes these particular Crown entities from the Commissioner's mandate, rather than having a definition of "Crown entity" in the SSA that differs from that in the CEA. TEIs, CRIs, and their subsidiaries, are all Crown entities as defined in s7 of the CEA, and there should be no confusion on that point.
391 Making these changes would also require consequential amendments to the definition of "State services" in s2 and to the description of some of the Commissioner's functions in s6:
- subsection (ac) in the definition of "State services" should be deleted. It would no longer be necessary, as CRIs would be included in the Crown entities referred to in subsection (ab). Regrettably, during the drafting of the Bill, the consequential amendment to delete subsection (ac) from the definition of "State services" was not picked up. This amendment should be progressed at the earliest opportunity, possibly as part of a Statutes Amendment Bill
- s6(ha) was inserted as from 25 January 2005. The mandate to provide advice and guidance on matters of integrity and conduct was intended to extend to all the State services, except CRIs and their subsidiaries [POL Min (03) 26/8, Annex 1, paragraph 11]. Note that TEIs and their subsidiaries are automatically excluded by virtue of not being part of the State services. To avoid doubt or confusion, s6(ha) - if it were to remain a stand-alone provision - should be amended to ensure CRI subsidiaries are also outside the scope of this function. In the end, this issue was subsumed in the further technical change discussed below under the heading of advice on integrity and conduct.
- s6(i) - if it were to remain a stand-alone provision - would need to be amended to exclude TEIs, CRIs, and their subsidiaries from the scope of the Commissioner's function. In the end, this issue dissolved as part of the amendments to the Commissioner's principal functions in s6.
Transfer of Commissioner's Function relating to EEO
392 As stated in the discussion relating to Part 1 of the SSA, some of the Commissioner's principal functions in s6 of the Act were at a mechanical or operational level, and would be better transferred – in modified form, if appropriate – to the more operational parts of the Act.
393 Effectively, in accordance with other proposals throughout this paper, most of the existing functions of the Commissioner in s6 would be retained in modified form, or be subsumed within the scope of other provisions.
394 The exception was the function previously located as s6(g), i.e. "to promote, develop, and monitor equal employment opportunities policies and programmes for the Public Service". This is a specific provision that was not covered within other proposals. The function is an ongoing activity for the State Services Commission. The SSC recommended that it be transferred from s6 as a principal function and relocated to part 5 of the Act – personnel provisions – probably as a subsection in s58. The amendment progressed via cl47(1) in the Bill.
Appointment and Review Provisions
395 Section 60 provides:
Appointments on merit
A chief executive, in making an appointment under this Act, shall give preference to the person who is best suited to the position.
396 Section 65 provides:
Review of appointments
(1) The chief executive of each department shall put into place for the department a procedure for reviewing those appointments made within that department that are the subject of any complaint by an employee of that department
397 The effect of s65(1) is that an appointment made under s60 is in fact provisional pending the lodging and outcome of a review. It is possible, and there are examples in the past (especially in the early years after the passage of the SSA in 1988), where an appointment to a Public Service position has been overturned upon review, with the appellant appointed instead of the original appointee, or both persons are interviewed again, or the appointment process starts over again.
398 The Act should clarify the provisional nature of an appointment during the review process. The amendment progressed via cl48 in the Bill.
Advice on Integrity and Conduct
399 There were two provisions in the SSA relating to the issuing of advice on matters of integrity and conduct:
- under s6(ha), one of the Commissioner's principal functions was "to provide advice and guidance to employees within the State services (except Crown Research Institutes) on matters, or at times, that affect the integrity and conduct of employees within the State services"
- under s57C(2), one of the Commissioner's powers when setting and enforcing minimum standards of integrity and conduct included "providing advice and guidance on matters like the interpretation of the standards and the application of a code of conduct in specific cases".
400 In accordance with the discussion relating to part 1 of the SSA, the function in s6(ha) should transfer to the 'operational detail' provisions in the Act, and be replaced in s6 by a different statement of the Commissioner's principal function relating to integrity and conduct. The operational detail was in s57 which already included s57C(2): though described as a "power", the act of providing advice and guidance is a function, not a power.
401 The SSC proposed that the functions in s6(ha) and s57C(2) should combine into a single function to be inserted, probably, as a new subsection 57(4). The policy intention behind 57C(2) was to provide for advice and guidance specifically pertaining to the standards in a code of conduct. The policy intention behind 6(ha) was to provide for advice and guidance on matters of integrity and conduct that are not necessarily or explicitly linked to a code of conduct, such as advice and guidance for State servants in the period leading to a General Election. The scope of 6(ha) is broader than the scope of 57C(2). The amendment proceeded via cl44(3) in the Bill.
402 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 provided 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 that applied to any person holding the position of permanent head of a Public Service department under the State Services Act 1962 (s91).
403 Section 44(2) continued to refer to the Commissioner of Police as chief executive in respect of the Police Department (civilian staff).
404 When the Act was promulgated in 1988, the Audit Department and the Police Department (civilian staff) were departments of the Public Service. The following year, the Police Department (civilian staff) was removed from the list of Public Service departments. In 2001, the Audit Department was disestablished as a Public Service department and the Controller and Auditor-General was established as an officer of Parliament.
405 Section 44 should therefore be amended to remove subsections (1)(b) and (c) because this part of the SSA did not apply to the Controller and Auditor-General and the Commissioner of Police or their agencies.
406 Section 44 should also be amended to remove subsection (2)(d) since reference to the Commissioner of Police and the Police Department (civilian staff) was redundant. The Policing Act 2008 deals with the organisational arrangements for the New Zealand Police and the relationship between the State Services Commissioner and Commissioner of Police.
407 Section 91 had been redundant for many years and should now be removed from the SSA.
408 These technical amendments were all incorporated in the Bill.