Public Records Bill

I want to speak to clause 17, “Requirement to create and maintain records”. I want to articulate further the reasons that I mentioned in the second reading debate as to why it is my view and National’s view that State-owned enterprises should be exempt from that requirement. Clause 17(2) states: “Every public office must maintain in an accessible form, so as to be able to be used for subsequent reference, all public records that are in its control, until their disposal …”. The definition of a public record includes records created or received by a public office in the conduct of its affairs. Clause 4 states a public record could be: “ … (without limitation) a document, a signature, a seal, text, images, sound, speech, or data compiled, recorded, or stored, as the case may be,—(a) in written form on any material; or (b) on film, negative, tape, or other medium so as to be capable of being reproduced; or (c) by means of any recording device or process, computer, or other electronic device or process”, or other electronic means. I suggest that when we look at the requirement under clause 17 that all public offices need to create and maintain full public records, we can see that it will be very difficult, in fact, for a State-owned enterprise to be able to comply with that.

Most State-owned enterprises work on the basis that when material comes in, if it is not necessary it is destroyed. In fact, the staff in State-owned enterprises are actually encouraged to get rid of material that is no longer relevant, is no longer of use, and cannot be used in the future. So, in relation to the requirement here to be able to maintain that material, I ask who is to say what will actually be required. Who is to make that determination? The point I have made about the commercial sensitivity of State-owned enterprises needs to be reiterated. State-owned enterprises have a commercial focus; that is what they were set up to have. The State-Owned Enterprises Act, which I referred to in the second reading, is very clear. State-owned enterprises are commercial businesses that are not focused on public policy-setting. Their activities have limited short, medium, or long-term public interest. That is how they were designed to be set up. The bill already recognises that there is a need for flexibility for local authorities. The bill actually allows that, as they have a degree of autonomy from central government, and a community, rather than a national, focus. State-owned enterprises have greater autonomy than local authorities and are further removed from the public arena, yet this bill actually constrains them. So on the one hand there is greater flexibility for local authorities, but on the other hand, however, State-owned enterprises are brought in and will be constrained.

It is National’s view that when we are talking about commercial operations, there will be some commercial risk associated with the storing and release of material, even though it will be released after a period of time. The point is that the Chief Archivist is not able to waive the requirement to create and maintain records. There is actually no discretion in that provision, whereas we are saying that it should never have been included in the first place. We are very concerned about clause 17 because of the requirement to create and maintain records, which we believe is not necessary for State-owned enterprises.

Clause 27 is another clause that we had great difficulty with—and there were certainly submissions on it. That clause looks at what the Chief Archivist can do, and on looking through it I see that there are no checks and balances on the archivist. Nothing in that clause controls what the Chief Archivist does. Subclause (3) states: “The Chief Archivist must ensure that every standard issued under this section is published in a manner that the Chief Archivist considers appropriate.” Well, when we look at that requirement, who do we see actually controlling and overseeing the archivist? Where are the checks and balances that will be required under that particular subclause? There is absolutely no accountability there at all.

💬 Dianne Yates: At this stage?

Well, we argued that issue at the time, and we are not convinced that there have been any changes that allow us to have confidence that the position will be safeguarded, particularly for State-owned enterprises.

If we look at clause 29, “Inspection powers”, we see there is a requirement for some modifications to be made for local records and local authority archives. I do not know what those modifications will be. Clause 33 is where the compliance costs have come in, and I mentioned earlier that there is no compliance cost impact statement in this bill. There will be huge compliance costs associated with this legislation, yet there is no compliance cost impact statement. Clause 33(2) states: “The Chief Archivist must commission and meet the costs …” of an independent audit of record-keeping practices in every public office. But there will be other costs. My question is: who is to pay for those? Well, I tell members that it will be the organisation that is required to keep the record. There are huge compliance costs there. When we look at the financial reviews, I will ask the departments that come before the Government Administration Committee how much it will cost them to comply with the provisions of this legislation, where there is to be an independent audit of the record-keeping practices of every public office. It will be an interesting exercise over the next 12 months just to see the extra compliance costs that will be associated with that.

Those are the points that National has concerns about, and we mentioned them in our minority report. The reason National is not voting for the bill is that we are not satisfied that the answers that were given, in particular regarding the issues pertaining to State-owned enterprises, have been adequately covered. For that reason, National is opposing this bill.

I just want to take up a few issues that have been raised by the National Party in the last wee while. National’s concern is that State-owned enterprises are being treated differently from private enterprises. That is absolutely correct—they are State-owned. This is a matter of the public record of the State. I think it is a tremendous shame to New Zealand’s history that when the Bank of New Zealand became privatised those records were lost. When the railways were sold those records were lost. That was our history of New Zealand. That was a history of many people’s lives and it was lost. There is no intention that the history of the State-owned enterprises—of hydroelectricity and its development in New Zealand—is to be lost, if we are to have any pride in the fact of how we manage power in this country, and I could go on.

Mr Lindsay Tisch raised a point, and he used a lovely phrase. He said: “Businesses like to get rid of material that is no longer relevant.” Now the difference between a private business and a State business is that the State determines that the State’s story is relevant, and it is relevant for generations to come because the State business is not just about making profit. Yes, it is about being profitable and efficient, but it is also a State business, and it is important that its story remains to be told. Who will determine what gets kept? Obviously, that is the job of the Chief Archivist.

We have been doing an extraordinary amount of work in actually bringing up this whole philosophy again and putting it into the minds of State services through the practice of having a continuing education programme called Continuum. That programme has been really positively accepted by State servants, and all power to the archivists who have been treated as a little branch tucked off at the side, but whose job is so important that they are now accepted and understood. Their work has been taken on by public servants and, as we will see, it will be taken on by State-owned enterprises.

Mr Tisch also raised the point that there are no checks or balances on the Chief Archivist. I remind Mr Tisch that in a Westminster democracy—be it the United Kingdom, Australia, New Zealand, or even, I think, Canada—a chief archivist is a statutory officer. The archivist must stay within the objectives of the legislation. As such, in the archivist’s report to the Parliament, if the parliamentary committee thinks the archivist is not staying within the objectives of the Acts, then that is where the power of Parliament lies. It does not lie with the State Services Commissioner and certainly not with the Minister. If the Minister starts to interfere with which records should be kept and which records should be destroyed, we will not have a safe public record.

I really wanted to make those points clear. I do not see how there will be any additional costs where a business is keeping good records. I would also remind the National Party that I cannot see the huge problems of competition being troubled by a decision made 25 years ago that has now become public in the august debates of today. What happened in 1980 truly does not affect the market in electricity in 2005.