The No Surprises Principle in Action
The no surprises principle (sometimes called a convention) is an element of the operations of the Executive. IPANZ has an interest in the norms, structures and processes of our public administration system. Hence our wish to engage with IPANZ members on this issue.
We are contacting IPANZ members now as there is an opportunity to learn more about the operation of the no surprises principle, and to make your views known.
How much do you know about the “no surprises” principle?
The Cabinet Manual [para 3.22 (a)] sets out the principle:
“In their relationship with Ministers, officials should be guided by the “no surprises” principle. As a general rule, they should inform Ministers promptly of matters of significance within their portfolio responsibilities, particularly where these matters may be controversial or may become the subject of public debate.”
There are various perspectives about the rationale for its existence. It is clear however that it is a key underpinning of the relationship and trust that exists between Ministers and their officials.
Do you know about the recent case - Peters versus Bennett - involving senior public servants?
You may be aware of the case brought by the Rt Hon Winston Peters. The claim, as stated in the Judge’s ruling, was that the public disclosure of the payment irregularity was a breach of his right to privacy.
The best way to obtain a full description of the case is to read the judgment by Judge Venning.
https://www.courtsofnz.govt.nz/assets/cases/Peters-v-Bennett.pdf
The background to the case involved the following
- In adherence to the no surprises principle, two CEs briefed their Ministers on a matter of significance in their Ministers’ portfolios. The information shared included private information about an individual who had a prominent public profile.
- This personal information was leaked to the media. The source of this leak was not determined. As a result of this leak, the personal information was made public.
- The complainant took five people to court including two senior Public Service chief executives.
- In his final judgment released on April 20th 2020, the judge determined that the no surprises briefings were for a proper purpose. He made a number of other points in his judgment.
IPANZ would like to use the opportunity provided by this case to consider, with your input, whether change is needed to the no surprises principle and how it guides officials.
The Office of the Privacy Commissioner is interested in the views of commentators.
The Office of the Privacy Commissioner intends to look further at the no surprises principle in relation to the issue of privacy.
The text of the Commission’s views on the case is attached below, in the form of a blog written by Joanna Hayward, General Counsel at the Office of the Privacy Commissioner. It is much shorter than the full judgment by Judge Venning and provides a helpful summary of key issues.
https://www.privacy.org.nz/blog/winston-peters-v-paula-bennett-and-others/
You will note that there are a range of matters for consideration raised in this blog, which include the following
- The expectation of privacy
- The integrity of the public service
- The naming of the person involved
- The contextual background
- A measure of restraint in the use of the no surprises principle
You may believe there are also other matters to consider.
You will see that the Office of the Privacy Commissioner invites comments and suggestions on this topic and intends to provide more detailed guidance in due course. We suggest therefore that you give your comment direct to the Commission before the end of May.
IPANZ wishes to consider if any changes to the guidance given to public servants might be warranted.
IPANZ is keen to gather the views of our members on this issue. You may decide to give feedback to the Office of the Privacy Commission too, but please do tell us what you think.
Depending on the response, IPANZ can then explore whether adjustment to, or clarification of, this principle would be of value. As always, IPANZ’s aim is to strengthen and support the public administration system.
Please feel free to share your ideas with us at shenagh@ipanz.org.nz We are happy to direct you to further commentary on this subject if you wish to dig deeper.