20 April 2011

About this time in each election year, the Cabinet Office issues the first of a series of Circulars about constraints which convention now imposes on governments in the pre election period.

CO 11 (02)  issued on 6 April 2011, confirms that the “pre election period” which covers the three months leading up to the general election, will begin in August.  Unusually, as the Prime Minister has already announced the election date, there is no uncertainty about when special measures come into force.

The Circular confirms the principle that the Government has the right to govern until election day, although a practice has developed that during the pre election period, it will restrict some decision-making.  In  particular the Government will avoid making significant appointments and not direct advertising which may create an impression that public funds are supporting a political party purpose.

The major implication, with the Government constrained from August from making appointments, is that agencies should now be supporting their Ministers consider whether to make or defer appointments.

The Circular indicates that the State Services Commissioner will shortly be publishing election guidance for State Servants. Similar guidance is published each election year, setting out the impartiality obligation of agencies and their staff.  It expands on the directive in the Cabinet Manual that “all employees in the State sector”… must be fair, impartial, responsible and trustworthy”.

That guidance in past election years has emphasised the provision in the Electoral Act that State servants seeking election to Parliament take leave, at the latest, from nomination day –  this election on 1 November.

Some guidance for officials wishing to be candidates has already been published on the Electoral Commission website;    “….section 52 of the Electoral Act contains special rules for any candidates who are state servants.  The term ‘state servant’ is widely defined as: public servants; other persons employed under the State Sector Act (although members of staff of a tertiary education institution teaching students preparing for examinations may continue to work and be paid); members of the New Zealand Police; members of the NZ Defence Force (other than non-regular forces).  To avoid the possibility of real or perceived conflict of interest, the Electoral Act requires state servants who stand as candidates to take leave of absence from 1 November 2011 (nomination day) until 28 November 2011 (the first working day after election day).”

An interesting piece of history is reflected in the Electoral Act  requirement that a candidate who is in the Cook Islands or Samoan Public Services must take leave from nomination day, as if they were employed in a New Zealand agency.