10 October 2014

Last night the State Services Commission enhanced its integrity guidance with the publication of a revised edition of Questions and Answers about the Code of Conduct. The SSC website notes that this Update incorporates 2013 amendments to the State Sector Act.

The content is substantially unchanged, providing a heartening endorsement that the State Services Commissioner is committed to the principles and practices underpinning the Standards of Integrity and Conduct for the State Services when they were first applied to agencies in 2007.

It will be equally heartening if the Commissioner, giving effect to the explicit leadership responsibility introduced as part of the 2013 amendments, uses the Update to stimulate renewed enthusiasm for, and understanding of, the code – and as expressed in the Purpose added to the Act in 2013  “… promote and uphold a State sector system that…is imbued with the spirit of service to the community; and…maintains appropriate standards of integrity and conduct…”

The changes are summarised in a paragraph added in the answer to the question – What is the History of the Code of Conduct? (page 4). This explains that;

“…The amendments in 2013 to the State Sector Act set out, for the first time, the principal ways that the Commissioner is to provide leadership and oversight. This role includes the Commissioner promoting the spirit of service to the community, and working with State Services leaders to ensure that the State Services maintain high standards of integrity and conduct, are led well and are trusted.

The amendments also applied the code of conduct to all individuals working as contractors and secondees in relation to a function, duty, or power of an agency, extended the mandate of the Commissioner to apply the code of conduct to companies named in Schedule 4A of the Public Finance Act 1989, and empowered the Commissioner to tailor the code of conduct for particular people or groups within an agency…”

These statutory changes specify that

  • the standards of integrity and conduct apply to contractors and secondees working in an agency and not only its employees;
  • companies listed in Schedule 4A to the Public Finance Act may be covered by the standards of integrity and conduct in the same way as departments and Crown entities
  • different standards of integrity and conduct may be applied to different groups within an agency and not as previously specified, to an agency (and everyone working within it).

The explanation of this third point indicates the possibility of the Commissioner issuing a code of conduct for Ministerial advisers.  Some have advocated this for many years.  Comparable jurisdictions treat the political staff in Ministers’ Offices differently from other agency staff.  A Kiwi Blog post in November 2008, when the National-led Administration was newly in place, suggested that such a code would “not be a bad thing”.

The Update commentary is as follows:

“…The 2013 amendments to the State Sector Act allows (sic) the Commissioner to apply a variation of the code of conduct to any people or groups of people undertaking particular function (sic) in an agency to which the code has been applied, in light of the legal, commercial, or operational context of the agency, people or groups involved. This increased flexibility will be used in circumstances where it is unreasonable for a generic code to apply to individuals or groups of individuals. Consideration is being given to having a variation of the code of conduct for Ministerial Staff4. This group of employees is often referred to as Ministerial Advisers.

4The State Sector Act defines this group of people as Ministerial Staff. Ministerial staff means the employees (including acting, temporary, or casual employees) who are employed on events-based employment agreements by the department that is responsible for the employment of ministerial staff across Minsters’ offices; and to work directly for a Minister in a Minister’s office rather than a department…”

The Update identifies the expanded list of agencies to which the standards of integrity and conduct can be applied.  It lists recent international measures which validate the integrity-rich character of the New Zealand State Services. It includes one or two oddities – including explaining that an agency has the right to “deviate” from the code.  The State Sector Act, subject to written Ministerial consent, permits derogation from a standard.

The “big news” is the prospect of a code of conduct for Ministerial Advisers. And that then gives rise to a question whether such a code would be consistent with the empowering legislation. The Purposes section added to the State Sector Act in 2013 explicitly refers to “… upholding  a State sector that …maintains political neutrality…”  As the intention behind issuing a Ministerial Advisers’ code would be to recognise that political neutrality standards do not apply to that group of State servants, lawyers may argue such a code would be ultra vires.  But a legal challenge is improbable; such a code will inevitably be “a good thing”.