6 January 2014
The stary of a new year is as good a time as any to be reminded of one of the fundamental principles of good government. Governments must act lawfully!
This was an emphasis in the Auditor General’s report on the Mangawhai community wastewater scheme published in November – but which a google search indicates has not been considered printworthy by others.
“Legislation enacted by Parliament is more than general guidance. Every public entity is exercising the power of the state. The essence of the rule of law is that the power of the state must be exercised in accordance with the law. Compliance with the law is not optional, and near enough is not good enough. There have been too many examples in recent years of public sector entities being too cavalier about matters of legal compliance. All public entities need to pay careful attention to both the spirit and the letter of their legal obligations if they are to retain the trust of the people they serve.
It is also fundamental that public entities should be able to demonstrate what they are doing and why, when that is questioned. Public entities should expect to be tested, whether by members of the public, the media, or the courts. This is accountability in action, and public entities need to be ready to explain themselves.”
There is nothing novel in the way that obligation is expressed. It reflects the State Services code of conduct. The Standards of Integrity and Conduct for the State Services require that “We must act lawfully and objectively”. Understanding the Code for Conduct – Guidance for State Servants explains the obligation as follows:
“We obey the law. This means we must act within the letter and spirit of the law. We recognise that the purpose of many of our organisational policies and procedures is to give effect to the requirements of the law. When making decisions, we must act within the scope of the power or discretion conferred on us, and within our delegated authority. The exercise of executive powers must comply with both New Zealand law and any international conventions given effect through statute.
It is important we show an objective and balanced approach to our legislative responsibilities. We respect the traditions of liberal democratic government and the rule of law. We do not act arbitrarily or oppressively in giving effect to law. Actions that are unreasonable or unjust can be unlawful. We must maintain accurate, complete and accessible records of the decisions and actions we take.
Many organisations have responsibility for administering and enforcing particular pieces of legislation. This responsibility must not blind us to the equal importance of other laws…”