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State Sector Management Bill 2010 - Submission to the Education and Science Select Committee [2010] NZHRCSub 18 (6 October 2010)

Last Updated: 28 June 2015

6 October 2010

Clerk of the Committee

Education and Science Select Committee

Select Committee Office Parliament Buildings WELLINGTON

_{STATE SECTOR MANAGEMENT BILL 2010}

1. The New Zealand Human Rights Commission (Commission) welcomes the opportunity to comment on the proposed State Sector Management Bill (the Bill).

2. The Explanatory Note to the Bill decribes its purpose as being “to amalgamate a number of existing agencies to achieve gains in terms of financial efficiencies, effectiveness, and future viability of agencies.”

3. The Commission is supportive of steps to reform the machinery of government which increase effectiveness and increases public access to and engagement with public agencies and information.

4. However the proposal focuses unduly on potential cost savings at the expense of transparency and political neutral maintenance of official records. The Commission is particularly concerned about the proposal that Archives New Zealand (and the National Library) be integrated into the Department of Internal Affairs (DIA).

Constitutional Importance of Archives New Zealand

5. Archives New Zealand has an important constitutional role in securing and reserving the Crowns records. This is not done solely for the benefit of historians. Rather it ensures the enduring accountability of government and as such is a fundamental strand of New Zealand’s democracy.¹

¹According to the United Nations Development Programme (UNDP) the major attributes of good governance include:

• Participation of citizens in the decision-making process of the country;

• Respect for the rule of law, which is the extent to which legal frameworks are fair and impartially administered;

• Transparency, with the free flow of information as its linchpin;

• Accountability where the government, the private sector and civil society organisations (CSOs) are accountable to the general public, as well as to institutional stakeholders (UNDP 1997: 5)

Level 1, Vector Building, 44 The Terrace, PO Box 12411, Thorndon, Te Whanganui a Tara Wellington 6011

Aotearoa New Zealand

Waea Telephone 64-4-473 9981 Waea Whakahua Facsimile 64-4-471 6759

Infoline / Toll free 0800 496 877 / TTY (teletypewriter) 0800 150 111 / infoline@hrc.co.nz www.hrc.co.nz

6. In an affidavit² sworn in November 1997, one of our leading constitutional experts, Sir Geoffrey Palmer stated that “it is a core responsibility of the State to maintain a proper and impartial record of the decisions and activities of the New Zealand Government. Not only are such records an essential nourishment to the intellectual life of New Zealand, they are an important instrument in the accountability of governments... The existence of a public record on every government exerts a salutary and beneficial effect on Ministers and that effect could be undermined if the strength and integrity of the archive system in New Zealand is diminished”.

7. National Archives, he continued, must be run “on the basis of professional judgement and it must be free from political bias or direction..... if the keeping of the National Archives is to be free of suspicion... [Therefore] it is necessary in my opinion for the Chief Archivist to be plainly and statutorily

protected from outside interference and pressure in the discharge of his or her

duties”... [As a consequence] the Chief Archivist should not be responsible (in the sense of answerable for actions taken or decisions made) to any other person for the discharge of his or her statutory functions. This is so whether that person is the Secretary of Internal Affairs or a superior who is interposed between him or her and the Secretary in a departmental hierarchy” and that “any significant intrusion in that statutory independence will have the effect of undermining the integrity of the Archives....”

8. The Commission is firmly of the view that any failure to preserve Crown records can impact severely on the rights of citizens. For example the failure of an independent body (prior to the establishment of an independent archiving agency) to ensure the full and accurate reserving of Crown records in cases of historic abuse whilst under the care of the State has had far reaching implications. In this instance records are for the most part non existent or at best limited.

9. The Commission believes that independence is vital to Archives New Zealand fulfilling its constitutional function and ensuring the government and officials are made and remain accountable. The Chief Archivist (CA) has an important constitutional role in establishing the procedures for the keeping of official records and controlling both their preservation and their destruction, and in particular keeping any politically-motivated manipulation of records at bay. To enable the CA to fulfil this function he or she must enjoy complete operational independence.

The Bill

10. By integrating Archives New Zealand into the DIA and subjugating the agency to officials superior to a downgraded CA, the Bill risks undermining the independence of the CA and severely impinges on New Zealand’s constitutional and democratic protections. More generally the right to access

² in support of the Archives and Records Association of New Zealand (ARANZ) and the New Zealand Society of Genealogists in their legal action against the then Secretary for Internal Affairs

to information is dramatically put at risk by any erosion of independence. So,

too, is vital public confidence in the state’s institutions.

11. Downgrading record management also risks calling into question New Zealand’s standing with Transparency International (TI) as the least corrupt country in the world. Such a ranking ought not to breed complacency, and such has been the international exposure of the country’s ranking that the prospect of any downgrading could carry significant risk.

12. It is true that the Bill goes some way to try and ensure the independence of the CA is retained to some degree – requiring the Chief Archivist to act independenty in all his or her functions and duties and in exercising their “professional judgement”.

13. However the Commission considers that this does not sufficiently ensure the continued independent operation of the CA for the following reasons:

• There is potential for conflict between performing functions, exercising powers, and exercising professional judgement
• The Bill removes the CA’s right to issue a public report on their activities. Section 32 retains an annual report to the Minister but the form, content and coverage of this report will be subject to the direction and influence of DIA’s chief executive.
• The Bill splits possession and control, awarding possession of Archives to the DIA, while the CA retains control. This creates the serious risk of

conflict between the department acting on the basis of rights and

powers which flow from possession, and the CA acting on the basis of control rights.

_{• The Bill reduces the rank of the CA to that of a third tier civil servant.}

He or she would be a mere employee of the chief executive of DIA. This arrangement substantially undermines the independence of the CA who will undoubtedly be subject to pressures from the department to act in a certain way. How, for example, can the CA be seriously expected to hold his or her superiors responsible for compliance with the Public Records Act, when those superiors are responsible for conducting the CA’s performance assessment and are his or her employer?

• As the records of Archives NZ are rightly required to be audited independently, the merging of Archives NZ with DIA effectively removes DIA from the ambit of Archives NZ, thus diminishing the effectiveness of government record keeping in respect of a major department.

14. Assurances about the intent of the chief executive of DIA have been given.

The intention is to improve services, to strengthen the professional leadership of the CA and the National Librarian and to improve the funding available for

services by providing more effective support services. It has been stated that

the CA will be supported to the full in carrying out his or her statutory

responsibilities.

15. However, these assurances reflect the views of the current chief executive and Minister. There is no ongoing statutory assurance to protect the independence of the CA and to ensure that Archives is not merely subsumed into the management structure of DIA in the future. In matters touching on the constitution it would be more usual to embody these duties in law rather than rest on assurances of good intent.

Rational for merger

16. Archives New Zealand is highly regarded internationally. There is no suggestion that Archives New Zealand is not operating to its fullest potential or that its statutory functions and constitutional role are not being fulfilled. There is no reasonable reason why the structure of Archives New Zealand should be subject to reform at this stage.

Financial gains

17. It is not clear what savings can be made by merging Archives New Zealand with the Department of Internal Affairs. Furthermore there is a clear absence of any analysis of the effects of such a merger on the democratic role of Archives New Zealand, let alone any evidence of financial imperatives having been balanced against fundamental constitutional principles and rights.

18. Grant Robertson, the State Services Spokesperson for New Zealand Labour Party refutes claims that financial savings can be made: “on purely financial grounds these mergers just do not stack up. In addition the disruption and upheaval caused by jobs losses and reduction in productivity will cost even ^more.”3

Advice

19. The analysis conducted and the advice given to Ministers in developing this Bill is flawed. The Minister stated at the first reading of the Bill (presumably on advice from officials) that the proposed structure replicates that which is effectively operating in other jurisdictions. More specifically he said that the National Archives of England and Wales exist within a larger Department.

20. This is an inaccurate assesment of the situation in the United Kingdom. The Keeper of Public Records (chief executive of the National Archives (NA), Historical Manuscripts Commissioner) is the head of a small government department in its own right (and has been at least since the 1958 Act). The Ministry of Justice in the shape of the Permanent Secretary is responsible for providing a lump sum to the NA which it controls itself. NA also controls its own appointments. We have been advised by Ms Sarah Tyacke, former

³ New Zealand Labour Party, Archives And Library Merger Does Not Stack Up. http://www.scoop.co.nz/stories/PA1003/S00438.htm

Keeper of the Public Records and now Chair of the International Records Management Trust that the statement made to parliament was incorrect (see Appendix 1).

21. The NA website⁴ clearly states:

'The National Archives is a government department and an executive agency of the Ministry of Justice. We incorporate the Office of Public Sector Information and Her Majesty's Stationery Office.

22. This arrangement preserves the independence of the chief executive of NA

Recommendations

23. The Commission recommends that Part 3 of the Bill be removed and that a period of consultation and accurate and robust analysis takes places to determine:

• Whether, in light of the undoubted success of Archives New Zealand there is any need to establish a new structure; and
• If so, what options are legitimate and acceptable taking into account the valuable constitutional role that Archives New Zealand plays and the right of all New Zealanders to access information.

24. The Commission wishes to make oral representations on this submission.

Please contact Legal Officer Michael White to discuss further. His contact details are:

DDI: 04 471 6752

Mobile: 021 041 2856

_{Email: michaelw@hrc.co.nz}

_{Yours sincerely}

Jeremy Pope Commissioner Kaihautu

⁴ http://www.nationalarchives.gov.uk/

Appendix 1

Full transcript of Questions for Oral Answer for Thursday, 03 June 2010

11. Internal Affairs, Department--Proposed Merger with National Library and Archives New Zealand

[Uncorrected transcript--subject to correction and further editing.]

11. GRANT ROBERTSON (Labour--Wellington Central) to the Minister of

Internal

Affairs: Will the positions of National Librarian and Chief Archivist be employees of the Chief Executive of the Department of Internal Affairs

and

be accountable to him under the proposed merger of National Library and

Archives New Zealand into the Department of Internal Affairs?

Hon NATHAN GUY (Minister of Internal Affairs) : Once integration of the three departments is complete, the individuals holding the statutory positions will be employees of the Chief Executive of the Department of Internal Affairs, instead of the State Services Commissioner as is currently

the case. The independence and integrity of the Chief Archivist will be preserved. The status of statutory role of the National Librarian will also

be preserved.

Grant Robertson: In light of that answer, how does the Minister think That the Chief Archivist will be able to maintain his or her important constitutional role to compel chief executives to deposit and maintain Government records if he or she is subordinate to another chief executive?

Hon NATHAN GUY: The statutory roles and functions of the Chief Archivist will be preserved and protected. I remind the member that when he looks around the world, he will see that in Australia the archives function

sits within the Prime Minister and Cabinet portfolio, in the United Kingdom it sits within the Ministry of Justice, and in Ireland the Chief Archivist

sits within the Department of Tourism, Culture and Sport. Those officials continue to have statutory independence.

SARAH TYACKE (FORMER HEAD OF THE UK NATIONAL ARCHIVES) COMMENTS

The situation in the UK is NOT exactly as stated by the Minister. The Keeper of Public Records ( Chief Executive of the National Archives, Historical Manuscripts Commissioner etc) is the Head of a small Govt Department

and an agency in the old terms, in his own right (and has been at least since the 1958 Act).

The Ministry of Justice in the shape of the Permanent Secretary (and the Minister, also the Lord Chancellor now) is responsible for providing a lump sum to the TNA for its pay and rations which the TNA controls itself as well as its own appointments up to CEO but there are inevitable 'push - pull' issues from time to time. The Ministry runs the appointment boards for the new CEO/Keeper of Public Records on behalf of the Lord Chancellor to whom the Keeper reports twice a

year personally.

I quote: 'The National Archives is a government department and an executive agency of the Ministry of Justice. We incorporate the Office of Public Sector Information and Her Majesty's Stationery Office.' Taken from the TNA website

8/6/10

While its not a neat arrangement it preserves the independence of the CEO/Keeper to write to the depts. on records matters and get the records which is after all the main purpose of having a modern archives. The problem is always

that evryone thinks its a place for old stuff which it is but that's not what its real contribution to Govt is in my opinion and that of most records managers/archivists. If there is a govt -wide issue then the Cabinet Office and other offcials come into play and normally if the Keeper is alert they will/can play a part in all records issues. At present this the case with the Hillsborough Independent Panel and was with the Hutton Inquiry into the death of Mr Kelly.

I could accept the phrase within 'the portfolio' but not within the Ministry since the post and operation is clearly distinct.

Will the new arrangement allow of a separate entity and responsiblities and the ability to advise other depts without the need for another ministerial official to have oversight - if not then its not the same.

Email to Jeremy Pope, 8 June 2010.