No surprises is not a convention - it's a practice that was added, to the New Zealand system in the late 1980s and is not found in other Westminster systems.
No surprises refers to the practice that staff in public agencies should give the minister early warning about a significant or controversial matter, especially those that might arise in public (Cabinet Manual 3.22[a]). At times since its introduction, this practice has been contentious when information held by the public sector has been misused for political purposes, which damages the publics trust in government.
The current regime creates unnecessary ambiguity. The rules and guidance need to be refined.
The December 2020 edition of Public Sector summarised a discussion at an IPANZ round table on issues raised by the no surprises practice. No final conclusions were reached at the round table, but this was not the intention. Rather the discussion was designed to gather and debate a range of views from many different perspectives.
The IPANZ board has distilled its own views about changes that could improve clarity and assist public servants. These views, summarised as IPANZ's propositions for change, are informed by the round table discussion but do not express the views of the participants.
The IPANZ board recognises that some kind of early warning practice is required. It appreciates that trust, relationships, and wise judgment are all essential. The board believes that consideration could be given to some changes to the guidance on no surprises.
- Duty to inform - the concept of a selective duty to inform and a duty to not inform should be more prominent. There should be a "positive list" of issues that the duty to inform covers as opposed to the current situation, which is a "negative list" - that is, any issue could be covered by no surprises unless it's specifically precluded. To keep ministers safe, the duty to not inform would include the details of individual cases so citizen's privacy is protected.
- The nomenclature should change - it should reflect the concept of early warning rather than no surprises. The notion of no surprises suggests that surprises can be completely avoided, which is misleading.
- Greater clarity is needed on informing ministers, not politicians - the duty to inform relates to minister(s) on defined matters arising in their portfolio(s) and does not extend to any matter than might embarrass the government.
- State sector wide - the duty to inform applies to non-public service departments such as the Police, Crown entities, SOEs, and companies on the 4th Schedule of the Public Finance Act. A wide range of public agencies undertakes a statutory independent function where "independent" means 'independent of the minister". The duty to inform is different for all public agencies when they undertake statutory independent functions rather than business as usual.
- Consistent application - the protection should be applied consistently across regimes. At present, IRD can't disclose personal information about family support, IFTC, child support, or student loans, but for other departments administering similar or identical regimes, the opposite applies.
- Personal information is private - disclosure should be the minimum required on a "need to know" basis to enable the minister to be answerable for the agency's actions. (See the Privacy Commissioner's guidance on when personal information can be disclosed to a minister by a government department at https://www.privacy.org.nz/publications/guidance-resources/guidance-to-ministersand-government-departments/).
The IPANZ board hopes that better guidance can be developed for public sector employees that addresses the problems that have emerged with the practice.
This article was published in the Public Sector Journal - April 2021, Issue 44.1.