State Sector Act reform and the Public Services Bill
The following submission on the Public Service Legislation Bill by Ratepayers NZ committee member Jane Johnston was written on the last day for submissions on the 31st of January 2020. See ( attached ) in .pdf format at the bottom of this page.
I write in support of the need to modernise the legislative framework, particularly as it aims to achieve a more adaptive and collaborative public service, underpinned by impartial, expertise and/or technical proficiency.
However, the Bill contains elements that are not required nor useful (as they lead to internal contradictions or to tautology, or indeed to a re- imagining of provisions in other statute and in other official documents of New Zealand, including the Treaty of Waitangi), while neglecting aspects of Government in need of serious attention, such as a clearer focus on efficacy, timeliness, prudent fiscal management, accountability to the public (via voting yes, but also as clients, customers or recipients of Government's services).
In aiming for a more collaborative public service, the suggestion is to achieve a more 'joined-up' public service.
That has been tried before.
It can (and does) lend to lots of meetings, inefficiencies, a lot of group-think (less contest of ideas), a blurring of lines of accountability, a shift towards preferring generalists rather than specialists, for communications heavy outputs, for extroverts who thrive in meetings over introverts (who might want thinking time to solve a problem), an increase in transactions associated with getting anything progressed (let alone done), a lack of forward momentum, and repetitive, iterative (sometimes called agile) processes, and institutional knowledge lost over time as participants in 'joined-up' processes change and new-entrants are inclined to test/revisit everything that's gone before.
I've worked in a number of Government agencies, in whole of Government and 'joined-up' Government processes over a period of 20 years, and been appalled at the waste of time and money, for little advancement contrasted to agile teams of experts being tasked with defining problems, and formulating and testing solutions.
I have worked in Business Planning for a Government agency, trying to deliver a "modernisation" strategy, that made little progress in 4 months while no less than 4 separate management teams in 4 discrete divisions had their turns over this work - I quit after 4 months because I couldn't tolerate the Ground-hog day malaise that fell over the entire Business Planning team - while a tier above us tried to 'coordinate' and 'empower' a lot of other teams.
Not surprisingly the targets Government had set to be achieved by this agency via its "modernisation" programme were not achieved by that agency, there was barely a ripple against status quo - in 3 years of that period of Government.
I’ve also worked in a programme of work that sat outside any one agency, as a whole of Government programme, supported by the Department of Prime Minister and Cabinet.
That was and continues to be an entirely appropriate approach for Government, that does not require any change to statute.
Only truly complex, so-called "wicked problems" ought to be considered for 'joined-up' inter-agency work.
Otherwise, Government will grind even less efficiently than it already does.
There is a risk of consultation fatigue arising within agencies, with all that could go on between departments/agencies, before the Public Service has even thought about sharing what it is working on with the "public" it is meant to serve.
These observations suggest 'collaboration' across Government agencies is not something that ought to be legislated for as a requirement; rather it ought to be something permitted and encouraged of leadership teams, and KPIs drafted to reward great effort and achievement of mutually supportive outcomes (i.e. improvements across multiple agencies rather than treating them singularly), and sanctions for those incapable of delivering what is needed.
There also has to be a measure for productivity in terms of deliverables (results and outcomes), in addition to one for being very busy – engaged in a lot of transactions prior to delivery.
The means can-not be allowed to become the ends (or an end in itself) when it comes to ‘collaboration’ between or by Government agencies and entities.
Collaborative efforts ought to be premised on the inclusion of directly affected or influential stakeholders (interested parties) or with those who must contribute some part of the solution and on a necessity to understand the targets of public policy or programmes and the implications, rather than on relationships with other agencies of Government.
The purpose of this Bill does not yet appear to be driven by a need to improve the outcomes for the Public (of having a reinvigorated Public Service), but appear to be as much about improving outcomes for the agencies themselves.
Better and well-informed, engaged, included and happy public servants is a great goal, but well-informed, engaged, included and content public (clients or recipients of public services) would be even better.
There are other more efficient administrative means to achieve 'collaborative', 'joined-up' agencies, not requiring statute, including through DPMC processes, CAB paper preparation, the State Services Commission, and via a review and implementation of Guidance for Public Servants engaged in reviewing Regulatory Frameworks and in strategic planning of the work programmes within Government agencies and entities, and even in shared services (to facilitate the inter-operability you seek).
I am concerned that this Bill (should it be enacted in its current form) would lead directly to an inordinate waste of time and money as Government agencies set about to establish potentially complicated inter- agency networks, systems, functionality (means and ways) to facilitate an inordinate amount of transactions across all of Government.
Perhaps all that is needed is simply a more permissive State Sector management environment that allows and encourages cross-agency collaboration when the focus of a particular aspect of work transects or ought to, for shared beneficial results or outcomes for the public served - and for Government.
Inter-operability is also a shared responsibility between individual public servants or groups (types) of professionals/staff of Government agencies along with for the various agencies within which they might be able to work.
A risk in making inter-operability the agencies' responsibility, is less innovation, less adaptability and less efficiency (as generalist functionality will be preferred over specialised systems), and a rise of a monolithic 'state' apparatus, when what the public might prefer is horses for courses, given the plethora of potential roles and functions of Government for the next 20 year plus life of this piece of legislation.
It is not clear that this legislation does encourage a client/public centred focus.
It risks introspection – Government working on self-improvement – when what the public seeks is a Government working on solutions to our problems, and improvements to delivery and functionality in provisions of goods and services out here in a world we occupy and are employed in – where attempting to be joined up to other households, businesses and rest of the community is something we do in our free time.
I think this legislation is too prescriptive when it could be more permissive, and Government could use other instruments to drive up agency performance and whole of Government efficiencies and performance while underscoring - via this Public Service Bill - the necessity for a strategic and professional management approach by agency leadership, and a refocusing on standards, values, principles, competency, capability, and a culturally sensitive and responsive public service (for all citizens).
With very little time to make a submission, as I only learnt of this opportunity on closing day, my main reason in making a submission to this Bill is that it is clearly misnamed and/or written with very blinkered vision.
It is to replace the State Sector Act, but in calling itself the Public Service Legislation Bill, it has completely failed to identify, acknowledge or contribute anything in relation to the local government sector.
There is a State Services Commission, there is no equivalent in relation to local government.
The Local Government Ombudsman and the Office of the Auditor General do not fill the gap.
The Public Service Association (PSA) also does not fill this gap.
Local Government New Zealand (LGNZ) and the Society of Local Government Managers (SOLGM) do not fill this gap.
Some professional associations endeavour to fill it, via professional entry criteria, codes of practice, professional development opportunities, and such - but there is no requirement for the public servants engaged in work of these professions must actually be members of the professional associations that try to fill the gap, nor is there any requirement on local government agencies to recruit members of professional associations, or even people with the relevant qualifications or experience.
There are people occupying roles in the local government sector with no qualifications or previous experience in the ‘expert' disciplines suggested by their job titles.
Their occupying roles with titles implying they are 'experts' in that discipline, sees them providing allegedly 'expert' technical advice to councils.
I’ve observed supposedly impartial, technical experts being told what to do by opinionated laypeople, who happen to have been elected to council or community boards.
I’ve observed entire technical working party, being told what to produce as advice and recommendations, by influential politicians (i.e. not impartial, expert analysis and advice at all).
With no equivalent of this proposed “Public Service” Bill (Act), there remains no recourse for an incredulous public subjected to the consequences of the work of this local public servants, and the misinformed or poorly advised elected representatives within local government agencies.
While the focus of this Bill is admirable in outlining the purpose, principles and values of an apolitical (and 'expert') public service, it is silent on any equivalency in the local government sector.
I ask that be remedied in the next version of the Bill.
It must be broadened in scope to cover ALL public servants, who ought to be able to move around the different parts of Government and local government – as I had done in my career until I realised about 6 years ago it was pointless to work in any local authority in an absence of any requirements for advisors to councils to actually have the qualifications or experience in the fields in which they were providing advice.
Government has delegated and devolved numerous functions to local government (councils, their CCOs and any other entity they might establish), including the provisioning of essential (core) infrastructure services for communities (or households and economic enterprises), and yet Government has made no attempt to oversee that these local authorities are staffed by a public service informed by the same purpose, principles and values being espoused by Government for its agencies and other entities.
In particular, there has been scant regard paid by Government to the technical expertise required to deliver the numerous functions (and services) statutorily required to be delivered by local councils (themselves creatures of statute, as government agencies with a little g), to ensure that sector is even capable of delivering the sort of 'public service' you aspire to for Government functions and services.
While this Bill's explanatory notes make reference to appointments of public services based on merit (and Equal Employment Opportunities etc), it is silent on that standard being applied to the local government sector. It is silent on professional standards, codes of conduct and the like that State Servants must adhere to.
It is remiss of Government to focus so strongly on its public servants, while ignoring the needs of the public, in relation to those public servants employed in local government.
I also want to comment on this Bill's front piece promo - that states one of the aims of this Bill is to: "recognise the role of the public service to support the Crown in its commitment to its relationship with Maori".
This Bill is about the public service, and yet there is no reference to formation of a 'Government' of NZ, the genesis of representative democracy that followed the Treaty, and this thing called "the public" (the residents and citizens of NZ which includes Maori, and any visitors who happen to be here any given day who must for whatever reason access "public services").
The relationship of the Crown with "the public" of NZ is not mentioned, presumably as it is a given; a relationship brokered via the NZ Government.
Any study of "the public" of NZ will reveal it is not a solid block (an amorphous mass) with an easily discernible set of aims and aspirations (hence us having hard-fought elections every 3 years, that only partially gives a steer to Government as to what ‘the public’ is after at the time of an election), yet this Bill appears to think a discrete set of aims and aspirations can be distilled on behalf of Maori collectively).
Or, perhaps the Bill is not talking about Maori as a group but is referencing all individuals identifying as Maori, singularly.
If this clause is about all Maori individually having aims and aspirations that ought to be recognised (to give effect to the Crown Treaty relationship), then the potential diversity becomes as large as 'the public', begging the question - how can this be "recognised".
The alternative is that some body (some leadership group) will sit as arbiters of what is/isn't Maori aims and aspirations.
That will lend to ideology, akin to religious ideology, running counter to the otherwise secular public service and free and frank, impartial advice role of public servants.
While public servants are free to practice whatever religion they like, the rule of thumb has been that unless it is relevant to the expertise or advice sought, it ought not to interfere with the impartial exercise of their technical expertise.
The attempt to better provide for, or accommodate a Maori cultural world view within agencies is notable, but I’m not convinced the devices utilised in this Bill are the way to achieve a greater inclusion of not only “Maori” by ethnicity, but for a greater or stronger expression of a Maori world view, or of tikanga Maori.
I am also not convinced this is what Maori has asked for – of Government. The employment requirements of Maori (also referenced in S71) - similarly, are unclear.
How might a Government Agency distinguish the application of S71(2)(d) from the employment requirements of any variant of potential employee or group in applying the other clauses within S71 (including at a, b, c, e, f, g, h). The Explanatory Note at page 2 contains a section headed "supports the Crown in its commitment to its relationship with Maori" that makes reference to the Treaty of Waitangi not being referenced in the State Sector Act, and so this reform would seek to not only acknowledge that Treaty as a touchstone for the public service to understand, to be cognizant of, but, in my view it goes much further in S71(d) of the Bill, without adequate appraisal of the suite of consequences or implications of doing so.
Hence, I suggest more work on this aspect of the Bill.
In Conclusion, I make the following recommendations :
1. Extend the scope of this Public Service Bill to ensure it accommodates and pertains to the local government sector, and entities councils create (including CCOs, Trusts, Inc. Socs, etc).
2. Provide a less prescriptive (more permissive) statute, empowering and enabling the State Services Commission and Government agency leadership to deliver better whole of government, or joined- up government processes AS and WHEN required, rather than by edict of requirements within this legislation.
3. Look to other methods for improving agency, public service performance, including by establishing a dedicated unit to assist in joining the dots, and provisioning for 'shared corporate services to/for agencies.
4. Rethink the references that isolate (in attempting to provide for) Maori within S71(2)(d), as the Treaty of Waitangi can be referenced within the purpose statement as being of national importance, a guiding foundation for all employment matters vis a vie the public service, and in the formulation of all other statute (particularly relating to employment, the Human Rights Act, advancement of Maoridom as a cultural, social, economic and ethnic cohort, and in designing and providing the goods and services of Government).
5. The Crown relationship with Maori might also be referenced within the invigorated "leadership" provisions, requiring strategic, future- focused leaders, rather than as dictate to Chief Executive as a "good employer".
Perhaps start with (and publish) a study of how explicitly Maori organisations (staffed or volunteered by Maori, for Maori) are managed by their CEO (or equivalent) is in order, to see how these provisions for/by/to "Maori" in this Bill could conceivably play out in practice, should there be an expectation those approaches will be mirrored within agencies of Government, in so much as they might pertain to Maori employees as public servants, rather than as public servants providing culturally appropriate services to Maori clients or reflecting the cultural needs of Maori at large (in designing infrastructure and services accessible to all, or specifically for Maori).
Jane Johnston 31st of January 2020
Far North District , New Zealand