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CHAPTER FIVE: CONTROLS TO PREVENT STATE RACISM

5.1 Public Sector Accountability

The public service is the machinery of government...because they generally have more information, expertise and time to think than ministers, public servants have power

(Palmer & Palmer, 1997, p. 78).

In jurisdictions where democratic principles are foundational but where neoliberal ideas prevail, there has been significant change in the shape and practice of the public sector. A substantial amount of what was built up as core government activity devised to protect citizens and enhance collective wellbeing is now, contracted out as services to a mix of market and community sector providers

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leaving, in principle, a leaner more efficient sector (Kelsey, 1993). In New Zealand this transitional process has resulted in perpetual restructuring and what the State Services Commission (SSC) (2002) view as a considerable loss of knowledge and expertise. However, Crown officials remain at the core of the public service and the efficient functioning of government is dependent on their ethical conduct. Crown officials and their Ministers are expected to abide by a plethora of legislation66 and regulation. The ultimate political accountability of governments however lies with the electorate.

In their ethical framework for the state sector in New Zealand, the SSC (2002, p.

2) holds there are three key dimensions necessary to sustain ethical conduct:

control, guidance and structure. The details of these dimensions are outlined within the Cabinet Manual (Department of Prime Minister and Cabinet, 2008) and related guidelines administered from assorted sites across government (see Ministry of Health, 2002c; Ministry of Justice, 2010; State Services Commission, 2007). They are outlined below in preparation for later discussion on the level of Crown official compliance with these directives and the effectiveness of these controls in preventing and minimising systemic racism.

Control Dimension

Under this system “...any conduct they [independent Crown monitoring agencies i.e. Privacy Commissioner] put under the spotlight must be explained and justified, with adequate reasons, unless it is to be found wanting”

(Palmer & Palmer, 2004, p. 263).

The control dimension refers to the informal, formal and institutionalised controls (see Table 4), which enables independent investigation of the activities of Crown officials and Ministers. This framework ensures government activities are subject to both external and independent review. Some of these controls are available to members of the public others must be initiated by a Member of Parliament (MP).

Table 4: Control Framework to Scrutinise Government Activities Informal Controls Write or visit a Member of Parliament.

Writing media releases and letters to the editor.

Formal Controls Petition parliament.

Utilise the protected disclosure legislation.

Utilise the official information legislation.

Complaint to the Office of the Ombudsman.

Judicial Review.

Institutionalised Controls

Written or oral parliamentary question.

The select committee process.

Routine activities of the Controller, Auditor-General and Audit Offices.

Royal Commission of Inquiry.

66 For instance the Crimes Act 1961 covers corruption and bribery of a Minister of the Crown, a MP, an official and the corrupt use of official information (State Services Commission, 2002, p.

4).

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A traditional method of control in relation to addressing concerns about the workings of Crown agencies open to the public is writing to or visiting a MP.

Such a visit can result in correspondence to relevant Crown Minister(s), further investigation and clarification of an issue. It can also lead to a parliamentary question, which offers MPs an opportunity to question Ministers of the Crown about the administration of their departments and policies. Thousands of questions are tabled and responded to annually; these take the form of both written and oral questions and frequently originate with constituents.67 These answers then become part of the public record of parliament through the Hansard system.

The public individually or through interest groups are also able to write letters to the editor and generate media releases raising concerns in relation to government activity. Under a Mixed Member Proportional (MMP), electoral system public opinion can act as a potentially powerful informal control on the conduct of government. Palmer and Palmer (2004, p. 228) contend opinion polls are frequent and are often used by politicians to frame their activities to secure favourable outcomes. The media therefore is a vital resource as it is through this source that most people get their information about public affairs.

New Zealand’s governance arrangements enable the right to petition parliament.

Petitions can be instigated by private citizens to seek policy and/or legislative change (Office of the Clerk of the House of Representatives, 2000). They are usually referred for consideration to select committees, whom are required to respond with recommendations within ninety days. Hundreds are initiated each year on a wide range of topics, recommending the government take a variety of actions. Parliamentary standing orders place a number of limitations on petitions, so for instance if other legal remedies have not been exhausted or if it could be subject to an Ombudsmen complaint, the House will not receive the petition.

Many of the controls on government are reliant on the publics’ access to information. The Official Information Act 1982 creates a legal requirement that official information be made available to anyone who seeks it, thereby opening up the conduct of government to scrutiny (State Services Commission, 2002). The core principle of the Act is information must be released unless there is a good reason to withhold it. The Act enables the public to scrutinise the workings of government and promotes public sector accountability. It applies to all government departments, Ministers, and most Crown entities including DHBs.

The Protected Disclosure Act 2000 (also known colloquially as the ‘whistle blower legislation’) was developed to protect employees who expose some form of serious wrongdoing within their organisation. Serious wrongdoing includes matters such as the unlawful use of public funds, actions that might endanger

67 In 2009 for instance there were 1,100 oral questions and some 20,000 written questions tabled (Prebble, 2010, p. 175).

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public health and/or gross mismanagement. The legislation protects employees who have made disclosures (in accordance with internal procedures) from disciplinary action.

The Ombudsmen are responsible for investigating complaints and making recommendations in relation into administrative decisions and practices of central government. The mandate of Ombudsmen focuses on both the resolution of individual complaints and an examination of their underlying causes.68 The Ombudsmen owe no allegiances to the Executive and are appointed for five-year terms. They have particular responsibilities in relation to investigating official information complaints and process thousands annually. Public law specialists Palmer and Palmer (2004, p. 268) explain that the Ombudsmen has no power to alter decisions but they can investigate and report to both parliament and the Prime Minister. The resulting publicity can exerts some influence on efforts to right administrative injustices.

Legislation grants the Executive a plethora of discretionary powers across a range of areas. A judicial review is a control on the behaviour of Ministers and Crown officials who act in a manner outside their mandate or according to processes that are illegal, unreasonable and/or unfair and their decision can be quashed by a court (Department of Prime Minister and Cabinet, 2008, p. 50). Judicial review is concerned with decision-making process rather than the merits of the decision. It is a procedural remedy so the points of process can be remedied but the decision may still stand.

Select committees69 are a mechanism designed to facilitate systematic and comprehensive scrutiny of government activity. They usually examine bills after their second reading, (unless they are under urgency) which often enables the public to provide written and/or oral submissions on the content of the proposed bill. This process both provides for public discussion and the refinement of legislation. Select committees can also initiate an inquiry as in the example of the Māori Affairs select committee inquiry (2010, September 23) into the impact of tobacco companies on Māori. An inquiry can be conducted into virtually any aspect of government policy, expenditure and administration. Standing orders require the government to make a formal response to the select committee report within ninety days. The proceedings of select committees are often open to the public and the media during the hearing of evidence and the committee can call for persons and papers to be placed before them.

The Controller, the Auditor-General and the Audit Office are parliament’s routine watchdogs over financial expenditure, ensuring public monies are used in an appropriate manner. They oversee a regular auditing program to assure parliament

68 Periodically the Ombudsmen office produce a compendium of case notes giving details of their findings.

69 There is a designated select committee with a focus on matters related to heath.

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that departments are performing and accounting for their performance in a manner consistent with parliament’s intentions. They cast light on particular government policies and are a check against financial corruption and inefficiency in government (Palmer & Palmer, 2004, p. 128). Their routine independent reports and their special investigations are tabled in parliament periodically so are thereby open to political, media and public scrutiny.

Royal Commissions of Inquiry also investigate concerns relating to the administration of government. Specifically they examine the workings of any existing law, the necessity or expediency of any legislation, the conduct of any Crown official, any disaster or accident involving members of the public and any other matter of public importance (Department of Prime Minister and Cabinet, 2008, p. 58). Royal Commissions, set up by the Governor-General on behalf of the Sovereign, can summon witnesses, hear evidence, conduct investigations and award costs.

There are a range of informal, formal and institutionalised controls in place to moderate the behaviour of Crown officials and Ministers. In order for these controls to prevent, obstruct, transform institutional racism they first must be able to detect racism. Therefore, access to information and the monitoring of Crown behaviour is essential to their effective operation.

Guidance Dimension

The guidance dimension of controls refers to administrative, legislative and Māori specific guidance (see . 5) that in this context could prevent racism. This guidance framework provides advice and direction to enable Crown officials and Ministers to administer efficiently and effectively the public sector.

Table 5: Guidance Framework for Crown Officials and Ministers Administrative guidance Code of Integrity and Conduct (legally binding)

Letter of expectation to CEOs.

Cabinet Manual.

Legislative guidance New Zealand Bill of Rights.

New Zealand Public Health and Disability Act.

Māori specific guidance Te Puni Kōkiri.

Waitangi Tribunal.

Central to the guidance dimension is the SSC’s role in monitoring the performance of the public service to ensure both the quality of service delivery and to uphold appropriate standards of integrity and conduct. This is primarily achieved through their oversight of the Code of Integrity and Conduct (2007) which outlines the expected behaviour of officials in relation to the core elements of impartiality, fairness, responsibility and trustworthiness. The public service is expected to remain politically neutral thereby being able to serve Ministers from across the political spectrum. Although Crown officials must have regard to the policies and priorities of the government of the day, they are expected:

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...to give free and frank advice to Ministers and others in authority, and when decisions have been taken, to give effect to those decisions in accordance with their responsibility to the Ministers or others (Department of Prime Minister and Cabinet, 2008, p. 4).

Since 1997, in addition to the code of conduct the SSC (2002, p. 6), issue a letter of expectations to all new public sector Chief Executives, broadly defining their duty of care. It outlines the SSC expectation that Chief Executives must:

...conform to the highest standards of integrity and probity, and ensure that they have systems and procedures in place to maintain and enhance public trust and confidence in the integrity of their departments, the Public Service as a whole, good government and representative democracy (p. 6).

The Cabinet Manual (Department of Prime Minister and Cabinet, 2008, p. 2) is the authoritative guide to central government decision-making and the primary source of information on constitutional arrangements as seen from the perspective of the Executive branch of government. It clarifies that the Treaty of Waitangi puts limits on majoritarian decision-making and accords a special recognition to Māori rights and interests through article two and three. It recognises that autonomous Māori institutions have a role within the constitutional and political system and a model of two parties negotiating and agreeing with one another is appropriate in circumstances.

The New Zealand Bill of Rights Act 1990 is a key element of New Zealand’s constitutional arrangements and is designed to protect a number of fundamental rights and liberties from intrusion by government. The Act provides guidance by defining discriminatory conduct in the context of legislation, regulations, policy development and service delivery. The Ministry of Justice (2010) have developed a mandatory non-discrimination standard (see Appendix I) to support the implementation of the Bill of Rights Act70 Through the application of this standard the Attorney-General is obliged to notify parliament when a bill is in breach of the Act, thereby opening it up for parliamentary scrutiny.

The NZPHDA (as discussed later in chapter six) outlines the functions and responsibilities of various parts of the health system. The Act contains clear statements about the role of the health sector in reducing inequalities, improving

70 A recent report by the HRC (2011a, pp. 31-32) made the distinction that this standard does not consider the implications of policy advice for Māori, rather relates to the Crown-defined treaty principles. The HRC argued even if the policy implications for Māori were negative, such an analysis would provide Ministers with more complete information to enabled better informed policy making.

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health outcomes for Māori and the relevance of Crown-defined Treaty principles71 to the workings of the sector. Central to the treaty relationship is the understanding that Māori have an important role in developing and implementing health strategies for Māori (Ministry of Health, 2002c, p. 4). DHBs are therefore issued with a responsibility to establish and uphold processes to enable Māori to contribute to strategies to strengthen Māori health and provide relevant information to Māori for that purpose. The Act also enables dedicated Crown-appointed Māori representation at the governance level of DHBs to ensure Māori voice in health decision-making.

The NZPHDA requires both Ministry and DHB to consult about matters related to the provision of health and disability services. For DHBs, this specifically includes requirements to consult on District Strategic Plans (DSP), District Annual Plans (DAP) and significant changes to policies, proposed changes in methods of contracting and in a variety of circumstances on other issues. The standard of consultation required is that defined within the Local Government Act 2002. This entails issuing a public notice, specifying a consultation period, providing an opportunity for written submissions to be heard and all submissions are to be made publicly available. To support the consultation requirements, guidelines72 (see Ministry of Health, 2002c) have been developed to support the work of Crown agencies in this area.

As introduced in chapter three the Waitangi Tribunal is a permanent Commission of Inquiry charged with investigating and making recommendations related to policies, practices actions or omissions of the Crown that are alleged to breach either Te Tiriti o Waitangi or the Treaty of Waitangi. The findings of the Tribunal carry considerable weight and offer directions for Crown officials and Ministers but are not binding on the government. Their focus has primarily been on historical breaches but contemporary claims such as the claim of Te Whānau o Waipareira (Waitangi Tribunal, 1998) relate to perceived discriminatory practices against urban Māori by the Crown have also been activated.

Enabled through the Ministry of Māori Development Act 1991, Te Puni Kōkiri (TPK) has a role in monitoring and liaising with each department and agency that provides services to Māori. The department aims to build an evidence base through research and statistical monitoring to understand and focus the state sector on improving its effectiveness for Māori (Te Puni Kōkiri, 2009a). It has particular interests in promoting Māori achievement across education, employment, health and economic spheres and monitors relevant Crown agencies

71 Critically the NZPHDA was the first time the treaty was included in a piece of social legislation, and the first time, Boulton (2005, p. 37) there has been explicit requirements to include Māori input into decision-making on health and disability services.

72 Ministry (2002c, p. 16) guidelines emphasis that the decisions and reasons for them should be conveyed back to those that participated in the consultation as part of a robust process. These include that the proposal is not yet fully decided on, sufficient time must be allowed and sufficient information should be supplied.

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to ensure the adequacy of those services. As an integrated policy Ministry, it conducts research, policy development, community level investment, evaluation and monitoring and manages Crown-Māori relationships on behalf of government.

A key focus is also “…to ensure that Government decision making and processes are informed by treaty considerations and are reflective of the aims, aspirations and realities of Māori communities” (Te Puni Kōkiri, 2009b).

There are a range of administrative, Māori specific and legislative controls in place to guide the behaviour of Crown officials and Ministers. These controls rely on Crown officials and Ministers having the professional commitment and competencies necessary to enact this guidance.

Structural Dimension

Structural controls are realised through sound human resource management practices. Devolved management is fundamental to how the New Zealand public service works. The underlying principle is that public sector managers work best under conditions of clear performance requirements, with managers having sufficient authority and discretion to meet the requirements. Employment arrangements and incentives are linked to specified performance, and good information flows are encouraged to keep the system in balance and to enable risks to be managed as close as possible to their source (State Services Commission, 2002, p. 15).

Crown Ministers such as the Minister of Health are responsible to parliament for their own activities and those of staff administrating their ministerial portfolios.

Chief Executives through their delegations under law and performance agreements are in turn responsible for the advice given to the Minister and the conduct of their staff. Despite the centrality of Chief Executives to the activities of government departments, Palmer and Palmer (1997, p. 71) argue Crown officials are ultimately the Minister’s agents “...in everything they do, as they act in his or her name”. Politicians are affected by substantial failures in their department, for which the public expects them to be politically accountable, as unfolded in the resignation of the Minister of Conservation over the Cave Creek disaster.73

The introduction of both the State Sector Act 1988 and the Public Finance Act 1989 streamlined the public sector giving state sector managers freedom to manage, while holding them accountable for their actions. Emphasis was placed on strengthened financial controls and departments demonstrating their efficiency.

The utilisation of performance agreements and strategic and key result areas with specified targets have became embedded across the public sector. These accountability requirements apply from Chief Executives through senior management teams to grass roots Crown officials in layers of level-specific

73 The Cave Creek disaster occurred when a viewing platform maintained by the Department of Conservation in Paparoa National Park collapsed killing fourteen people in 1995.

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performance targets. Often requirements are detailed in job descriptions, employment contracts and annual performance review targets.

A historic control specific to the health sector has been Māori Co-Purchasing Organisations (MAPOs) which were established under the Northern Regional Health Authority (RHA) in the mid-1990s as a structural response to racism. The MAPO strategy was a mechanism to enable a ‘treaty relationship’ with iwi, so Māori could be involved in funding and planning decision-making and service and policy development at all levels. North Health established MAPO with Tainui, Ngāti Whātua and the iwi of Te Tai Tokerau. Kiro (2000, pp. 221-222) quoted Shea (former North Health manager) described MAPO as being:

Responsible for prioritising Maori health within the RHA’s core business activity for all Maori within the North Health region… [and] The MAPO share joint responsibility for the selection and development of services and providers who are deemed safe, necessary, appropriate, effective and capable of efficient service delivery.

These Treaty relationships forged by North Health operated at both governance and operational levels were later transferred to the HFA and then the Ministry of Health and local DHBs (Minister of Health, 2000). A formal memorandum of understanding defined the treaty partnership with operational protocols to define the mechanics of the working relationship. The practicalities of the partnership meant MAPO staff work alongside Crown colleagues and were involved in all strategic policy-making and planning, funding decision-making, contract negotiations and monitoring.

In summary, there are a plethora of controls on the behaviour of Crown officials and Ministers. These checks and balances address the dimensions of control, guidance and structure. The effective functioning is reliant on access to information to detect racism and professional commitment to compliance.