3.8 The formal relationship between Ministers and the public service is governed primarily by the Public Service Act 2020 and the Public Finance Act 1989. The relationship is also governed by convention, the main aspects of which are set out in this chapter.
Roles and responsibilities
3.9 Ministers decide both the direction of and the priorities for the agencies for which they hold portfolio responsibilities. They are generally not involved in their agencies' day-to-day operations. In general terms, Ministers are responsible for determining and promoting policy, defending policy decisions, and answering in the House on both policy and operational matters.
3.10 Ministers have a duty to give fair consideration and due weight to free and frank advice provided by the public service.
3.11 Officials are responsible for:
- supporting Ministers in carrying out their ministerial functions;
- serving the aims and objectives of Ministers by developing and implementing policy and strategy;
- actively monitoring the performance or condition of public sector organisations, government assets, and regulatory regimes within their Ministers' portfolios, and delivering high-quality and efficient public services;
- informing Ministers of significant developments within their portfolios, and tendering free and frank advice; and
- implementing the decisions of the government of the day.
3.12 Officials must be politically neutral in their work, serving the current Minister in such a way that they will equally be able to serve any future holder of the office. This principle of political neutrality is central to the public service's ability to support the government of the day and any future government. See paragraphs 3.72 - 3.77.
Ministers' relationships with chief executives
3.13 The main point of contact between the Minister and a public service agency is the chief executive. Chief executives are responsible to their portfolio Ministers, under section 52 of the Public Service Act 2020, for:
- improving ways of working across public service agencies;
- their agency's responsiveness on matters relating to the collective interests of government;
- the operation of their agency, including in carrying out the purpose of the public service;
- supporting their portfolio Minister to act as a good steward of the public interest, including by maintaining public institutions, assets, and liabilities; maintaining the currency of any legislation administered by their agency; and providing advice on the long-term implications of policies;
- the performance of the functions and duties and the exercise of the powers of the chief executive or of their agency (whether those functions, duties, or powers are imposed or conferred by an enactment or by the policies of the government);
- giving advice to Ministers;
- the integrity and conduct of the employees for whom the chief executive is responsible; and
- the efficient and economical delivery of the goods or services provided by the agency and how effectively those goods or services contribute to the intended outcomes.
3.14 Chief executives are also responsible to their responsible Ministers for the financial management, performance, and sustainability of their agency under section 34 of the Public Finance Act 1989. They advise appropriation Ministers on the efficiency and effectiveness of expenditure under both departmental and non-departmental appropriations administered by their agencies.
3.15 Chief executives are responsible for matters relating to the employment of individuals within their agency (see paragraphs 3.37 – 3.38). Chief executives, or other staff within the agency, may also have independent statutory functions. While they are required to exercise these independently, chief executives should still keep Ministers informed as appropriate under the “no surprises” principle (see paragraph 3.26(a)).
3.16 Ministers are concerned not only with the short-term performance of their agencies, but also with the capability of their agencies to continue to deliver government objectives in the longer term. Ministers' priorities for agencies and the standard of performance expected of their agencies are specified in key accountability documents.
3.17 Accountability documents may include:
- one-year performance information, to be found for example in supporting information to the Estimates of Appropriations;
- medium-term performance information, found for example in information on strategic intentions as required by section 40 of the Public Finance Act 1989;
- plans providing a medium and long-term perspective on agencies in the context of their longer-term vision, and, as appropriate, for the nature of their operations, such as investment or workforce plans; and
- short-term plans and reporting as agreed between the chief executive and the relevant portfolio Minister for each Vote the agency administers when more detail is needed than that included in the supporting information to the Estimates.
Briefing for incoming Ministers
3.18 When a new Minister is appointed or a Minister assumes a new portfolio (whether after a general election or during the term of a government), the chief executive of the agency prepares a written briefing for the Minister. The briefing generally:
- describes the organisation and responsibilities of the department or agency, including the main Crown assets and liabilities, and any Crown entities or other public sector agencies within the portfolio, and specifies any decision-making that has been delegated to the chief executive;
- sets out the terms of reference, membership, and terms of office for all boards, commissions, tribunals, and so on, for which the Minister has responsibility;
- describes any legislation for which the Minister is responsible;
- includes an account of major outstanding or emerging policy issues and the implementation of current programmes; and
- sets out details of pending decisions or action that will be required of the Minister, including recommendations for draft legislation (taking into account any coalition or support agreements, or pre-election undertakings).
3.19 The chief executive may give this briefing to the Minister after the announcement of the Minister's appointment, with the approval of the incumbent Prime Minister and with the knowledge of the incumbent Minister and the Public Service Commissioner.
3.20 The written briefing should be tailored to the needs of the new Minister, and prepared in similar presentation and style to other agency advice to the Minister. The level of detail included in this initial briefing will vary, depending on whether the Minister concerned has had any prior involvement with the portfolio, and whether there has been a change of government.
3.21 Whether a briefing is proactively released publicly is a matter for the Minister, not the agency, to decide.
3.22 The written briefing is the first part of an ongoing process of briefing the new Minister. Its purpose is to give the Minister sufficient information to meet their initial requirements. This initial briefing will need to be supplemented, over a number of weeks, with further written or oral briefings as required.
3.23 The Public Service Commission has issued further guidance on the content of briefings for incoming Ministers (see the Public Service Commission website).
Long-term insights briefings
3.24 The chief executive of a public service agency must give an independent long-term insights briefing to the relevant portfolio Minister at least once every three years. The briefing is also intended to provide public-facing information on medium and long-term trends, risks, and opportunities that affect or may affect New Zealand, including analysis on the policy options for responding to these matters. The Minister must present a copy of the briefing to the House of Representatives as soon as is reasonably practicable after receiving it.
3.25 The Public Service Commission has issued further guidance on the contents of long-term insights briefings (see the Public Service Commission website).
Ministers and officials
3.26 The style of the relationship and frequency of contact between Minister and agency will develop according to the Minister's personal preference. The following guidance may be helpful.
- In their relationship with Ministers, officials should be guided by the “no surprises” principle. As a general rule, they should inform Ministers promptly of matters of significance within their portfolio responsibilities, particularly where these matters may be controversial or may become the subject of public debate. This principle does not override the requirements for disclosing information under the Privacy Act 2020 and the Official Information Act 1982 (or other statutory restrictions).
- A chief executive should exercise judgement as to whether, when, and how to inform a Minister of any matter for which the chief executive has statutory responsibility. Generally a briefing of this kind is provided for the Minister's information only, although occasionally the Minister's views may be a relevant factor for the chief executive to take into account. In all cases, the chief executive should ensure that the Minister knows why the matter is being raised, and both the Minister and the chief executive should act to maintain the independence of the chief executive's decision-making process. The timing of any briefing may be critical in this regard. As a matter of best practice, briefings should be in writing or at least documented in writing.
- It would clearly be improper for Ministers to instruct their agencies to act in an unlawful way. Ministers should also take care to ensure that any direction they give their chief executive could not be construed as improper intervention in administrative, financial, operational, or contractual decisions that are the responsibility of the chief executive.
- Ministers are ultimately responsible for setting the government's policy priorities and objectives and are accountable for them in the House. Chief executives must provide their Ministers with all the relevant information and advice to enable the Ministers to set these priorities and objectives. In providing this information and advice, chief executives must take into account the resources available to their agencies and the need for stewardship of their agencies' future capability.
- On a day-to-day basis a Minister will have contact with the senior officials best able to provide the necessary information or advice. Agency staff and the Minister's office should keep the chief executive informed, at least in general terms, of any contact between the agency and the Minister. This information helps to keep lines of communication and accountability between the Minister and the agency clear.
- Ministers should exercise a professional approach and good judgement in their interactions with officials. Ministers must respect the political neutrality of the public service and not request that officials act in a way that would conflict with the standards of integrity and conduct set by the Public Service Commissioner (see paragraphs 3.72 - 3.77).
- Ministers and agencies need a clear shared understanding as to which of them is responsible for media or other public comment on particular issues.
- Ministers and senior officials are likely to benefit from ongoing discussion about strategy for the agency, and the agency's capability and performance.
- Ministers should bear in mind that they have the capacity to exercise considerable influence over the public service. Ministers should take care to ensure that their intentions are not misunderstood, and that they do not influence officials inappropriately, or involve themselves in matters that are not their responsibility. Particular care should be taken with officials who are unlikely to have frequent or direct contact with Ministers, who may be less familiar with the principles, conventions, and working guidelines that govern the interaction between the public service and Ministers.
3.27 Ministers should ensure that staff and advisers in their offices understand the principles governing the Minister's role and the Minister's relationship with officials and entities in the public sector. Like Ministers, staff and advisers in Ministers' offices must take care to ensure that they do not improperly influence matters that are the responsibility of others.
3.28 Ministers who wish to obtain information from, or the assistance of, an agency other than one for which they are responsible should do so through the relevant portfolio Minister.
3.29 In addition to taking advice from the public service and other parts of the public sector, Ministers may take advice from other sources, including political advisers in their offices. Political advisers have an important role in supporting Ministers in their management of relationships with other political parties and of risk, and in negotiating support for policy and legislative initiatives.
3.30 A Minister may involve political advisers in policy development and other areas of work that might otherwise be performed within the Minister's agency. The Minister and the chief executive must establish a clear understanding to ensure that:
- agency officials know the extent of the advisers' authority; and
- proper accountability exists for results and financial requirements under the Public Finance Act 1989.
Individual ministerial responsibility for agency actions
3.31 Ministers are accountable to the House for ensuring that the agencies for which they are responsible carry out their functions properly and efficiently. On occasion, a Minister may be required to account for the actions of an agency when errors are made, even when the Minister had no knowledge of, or involvement in, the actions concerned. The question of subsequent action in relation to individual public servants may be a matter for the Public Service Commissioner (in the case of chief executives), or for chief executives in the case of members of their staff.
Appointment and review of chief executives
3.32 The Public Service Commissioner's role in appointing chief executives and the independence of chief executives in matters concerning their employees underpin the neutrality of the public service.
3.33 The process of selecting most public service chief executives is managed by the Public Service Commissioner, in accordance with Schedule 7 of the Public Service Act 2020. An appointing panel is established, and the chairperson of the panel recommends an applicant to the Minister for the Public Service for appointment, who then refers the recommendation to the Governor-General in Council. The Commissioner's recommendation is subject to confirmation by the Governor-General in Council, following consideration by Cabinet. Conditions of employment for chief executives are determined by agreement between the Public Service Commissioner and the chief executive, but the Commissioner must consult the Prime Minister and the Minister for the Public Service before finalising the conditions.
3.34 The Public Service Commissioner also has a role in managing the appointment process for a range of other chief executives and senior officers in the executive branch, beyond those for which the Commissioner has responsibility under the Public Service Act 2020. These appointments include:
- Chief Parliamentary Counsel;
- Secretary of the Cabinet/Clerk of the Executive Council (see paragraph 5.88);
- Chief of Defence Force and senior defence appointments; and
- Commissioner of Police and senior police appointments.
3.35 The Public Service Commissioner may assist in the appointment process for certain chief executives and senior officers in the legislative branch of the public sector (for example, the Clerk of the House of Representatives) if requested to do so by the Speaker.
3.36 The Public Service Commissioner is also responsible under the Public Service Act 2020 for reviewing the performance of public service chief executives and their agencies. Various statutory and other mechanisms also enable the Commissioner to carry out performance reviews in relation to the heads of other agencies including the New Zealand Police, the New Zealand Defence Force, the Parliamentary Counsel Office, the Parliamentary Service, and the Office of the Clerk of the House of Representatives.
Chief executives as employers
3.37 The public service is established on the principle of merit-based appointments. Chief executives act as the employing authority for the agencies to which they have been appointed. Under section 54 of the Public Service Act 2020, chief executives must act independently in matters such as the appointment, promotion, or disciplining of individual employees. They are not responsible to their Minister in such matters. Generally, the duty of independence and the obligation to act as a good employer will make it inappropriate for a chief executive to involve their Minister in any staffing matter.
3.38 In certain circumstances, chief executives may need to provide their Minister with a briefing on a staffing matter. In such situations, the chief executive should take into account the guidance set out in paragraph 3.26.