Commentary on the Final Versions of the Public Service Act 2020

The Public Service Act 2020 received Royal Assent on 6 August 2020 and, consequently, has become part of New Zealand law.  During the legislative process, IPANZ made two submissions on the proposed legislation, the first during the initial consultation period following the release of a discussion document and the second in January 2020 in response to the draft Bill which appeared subsequently.  IPANZ also made an oral submission to the Governance and Administration Select Committee on 4 March 2020.

As is to be expected, the final Act is in large part unchanged from the draft Bill, apart from quite a number of what might be deemed ‘technical’ amendments.  These will not be commented on further here.  IPANZ is, however, pleased to note that a number of substantive changes have however been made in line with its suggestions.  It is also fair to note, however, that IPANZ is disappointed that other suggestions that have not been taken up (examples include the lack of an explicit reference to the critical constitutional role played by the Public Service and the continued omission of a provision recognising the responsibility of Ministers not to act in such a way as to undermine the principles of the Act). IPANZ remains of the view that their omission reflects an opportunity lost.

The following comments and discussion largely follow the shape of IPANZ’s January 2020 submission which in turn follows, more or less, the order in which the issues are addressed in the Bill.

IPANZ is pleased to see as it suggested in its submission that Section 11 (Purpose) has been amended by adding the phrase and acts in accordance with the law.  It is, however, disappointed that the sub-principle of transparency has not been included in the principle of open government (Section 12, Principles).

IPANZ is particularly disappointed that there have been no substantive amendments made to Sections 12 and 13 (Crown’s relationships with Māori).  IPANZ remains of the view that these provisions are woefully inadequate in setting out expectations of the Public Service in regard to the contemporary Crown/Māori relationship.  It does little more than codify the status quo and does little to foster the need for policy decisions, service delivery, engagement and governance to meet the need of Māori.

IPANZ notes that in Section 17 (Standards of integrity and conduct) a new clause (17(3)(4)) has been added to the effect that the Commissioner must consult on the proposed content of that standard with all agencies in or to which it will apply.  This is a welcome addition in that provides a check against a possible flawed introduction of a ‘one-size-fits-all’ approach.

Section 20 now refers to political neutrality (rather than ‘rights and responsibilities’); IPANZ considers this to be an improvement and welcome clarification.

IPANZ’s views on joint operational arrangements are largely unchanged from those set out in its January 2020 submission, and there have been few substantive changes made to the original draft legal text.  We are, however, pleased to note in Section 38(1)(2) that specific reference is included to the effect that the provision for the establishment of joint operational agreements does not limit the ability of agencies to enter into informal working arrangements.  This is a welcome acknowledgement of IPANZ’s views that cooperation among agencies does not always require the establishment of new formal administrative structures.

IPANZ is pleased to see that the clause including by promoting the good employer requirements in this Act has been added to Section 44(c) (Commissioner’s general functions).  This additional emphasis on the requirement to be a good employer is welcome.  We note too that there has been an amendment to Section 44(e) to limit the Commissioner’s role in respect of reviewing design and operation to that of government agencies alone, rather than government as a whole.  This is appropriate.

IPANZ is particularly pleased to see that provision has been made in the Act for 2 Deputy Public Service Commissioners to be appointed.  We regard this as critically important. 

Section 71 (Good employer requirements) has been usefully expanded by the addition of two sub-sections, namely, (i) recognition of the importance of achieving pay equity between female and male employees and (j) recognition of the importance of decisions about remuneration being free from bias including, but not limited to, gender bias. IPANZ welcomes these additions. As a consequence, the former section 74 has been deleted, but with its reporting requirements added to the appropriate part of Schedule 3.

So far as pay equity is concerned, the final Act puts a much greater onus on the Public Service Commissioner to be responsible for pay equity negotiations.  A requirement is that the Commissioner must exercise this role in consultation with the appropriate CE (or equivalent).  This new provision is welcomed by IPANZ.

The Government workforce policy provisions are largely unchanged from the draft Bill, but a new clause allows for pay equity and workforce diversity and inclusiveness issues also to be included in workforce policy determinations.

IPANZ had some concerns regarding the requirement for the Public Service Commissioner to provide three-yearly briefings.  In particular, our concern was that the original language was backward- rather than forward-looking.  The new wording, namely, that the Commissioner, in selecting the subject of his report, must take into account the issues that the Commissioner considers are of significant public interest essentially meets IPANZ’s concerns.  It is also pleasing that specific mention is made of the desirability of the Commissioner reporting on how public service agencies are achieving workforce diversity and inclusiveness.

The provisions in Section 8 of Schedule 6 (Public Service Chief Executives) on long-term insights briefings have been significantly changed for the better, and largely reflect the points made in IPANZ’s January submission.  The two key clauses now read:

(2) The purpose of a briefing is to make available into the public domain -

• (a) information about medium-and long-term trends, risks, and opportunities that affect or may affect New Zealand and New Zealand Society:
  
• (b) information and impartial analysis, including policy options for responding to matters in the categories referred to in paragraph (a).

(3) A briefing may set out the strengths and weaknesses of policy options but without indicating a preference for a particular policy option.

These new provisions should go a long way to ensuring that the briefings are indeed useful contributions to open government.

IPANZ is disappointed that the term of appointment of CEs has been set at 5 years.  We remain of the view that a 7-year term would be preferable.  In terms of the appointment process, however, IPANZ is pleased to note that there is now a specific requirement that an appointment panel must take into account the requirements set out in the Act in relation to merit-based appointments and diversity and inclusiveness.  In similar vein, IPANZ is pleased to note that in regard to the transfer of CEs (Schedule 7, Section 6), there is a requirement that the Act’s provisions for merit-based appointments apply in the same way as if the transfer were an appointment.  On the other hand, we remain of the view that a more transparent and open process would be preferable.

18 August 2020