30 September 2017

The number of Public Service departments went up again on Friday when substantial parts of the Security and Intelligence Act 2017 came into force.  As s 7 of the Act states, the NZSIS is now a department of State – adding it to the other 29 listed in Schedule 1 to the State Sector Act.  The Act also confirms that the GCSB continues as a department of State.

Interestingly, few other agencies are prescribed by statute as being departments of State.  The Oranga Tamariki Act which established the 28th Public Service department earlier this year did not specify that the agency was a department of State.  Inclusion in Schedule 1 to the State Sector Act creates a department as part of the Public  Service (non-inclusion confirms that some agencies are “non Public Service” departments ), and by implication, makes public servants of departmental  employees.

NZSIS “spooks” are now public servants. GCSB staff have been public servants since 2003 when that department was added to Schedule 1. With a single Act covering the activities of both security agencies, their staff will have common obligations to the State Services Commissioner’s Standards of Integrity and Conduct for the State Services.  ( As a “non Public Service” department, NZSIS was part of the State Services but like Police and the NZ Defence Force had agency-specific integrity commitments. )

November marks the 10th anniversary of the Standards of Integrity and Conduct for the State Services being issued to more than 120 departments and Crown entities – and subsequently to numerous Crown entity subsidiaries.  The State Services Commissioner imposed expectations based on a broad meaning which the State Sector Act gives to integrity – “…Integrity is the inclusive and all-embracing description of these ethical requirements. The headings under which the standards have been grouped – Fair, Impartial, Responsible and Trustworthy – are indicative of integrity.  Integrity itself is pervasive and implicit in all the standards…”  This reflects the adage of Alan K Simpson that if you have integrity, nothing else matters. If you don’t have integrity, nothing else matters.

One of the complexities of a code applying equally to agencies with functions covering the spectrum of government has been resolved in time for the appointment of Ministerial staff to the incoming Government.  The political neutrality obligation previously applied equally to staff who work for the Government in roles that have a political dimension. The code of conduct for Ministerial Staff issued on 12 September 2017 now permits this group of State servants to serve the political aspirations of the Government, exempting them from the requirement to act with political neutrality set out in the “We are Impartial”  standard.  Ministerial staff can act professionally when undertaking partisan activities, whereas the Appendix to the SSC guidance on Understanding the Code indicates that it would not be professional to “…engage in activities that undermine the State Services’ commitment to integrity and professionalism – in effect failing to meet the obligations to be fair, impartial, responsible and trustworthy. ..”

A new challenge may now arise for NZSIS staff with the requirement to act honestly – an element of being trustworthy.  The SSC guidance is that “…We must not deceive or knowingly mislead…”  A NZSIS mantra is to neither confirm or deny.   The guidance on Understanding the Code goes some of the way to recognising this.

“…The principle of honesty underpins the obligations of all of us in the State Services. Public trust in the State Services will be determined primarily by the degree to which New Zealanders believe that at all times we act with honesty. We are expected to respond to what we believe to be true, and to act always with a focus on accuracy and authenticity.

Honesty does not necessarily mean continuous, full disclosure. In some circumstances, full disclosure is a requirement. Other circumstances may require care. For example, the courts have recognised that organisations with responsibility to enforce legislation cannot be required to openly disclose their evidence-gathering activities. It is sometimes necessary to disguise the way these activities are carried out. But these circumstances are rare. Unless there is a lawful reason for doing so, we must not act on the premise that the end justifies the means…”