Public Service Legislation Bill

That brings us, colleagues, to Part 4, debate on clauses 95 to 102, “Government workforce policy”.

I’m interested in engaging in this important Part that deals with the process of Government workforce policy statements. I’ve heard the debate in Parliament for 30 years that if only the Public Service was able to plan how many nurses and doctors and teachers and all those things that we perfectly required, we would end up with a better quality Public Service. National is of the view that you do need some level of workforce planning. We’re also of a view that there will always be a level of uncertainty. New Zealand doesn’t control how many New Zealanders come home or leave, and there are many other elements of technology and others that affect pressures on the Public Service and the number of staff.

We’ve long seen the trend that when the New Zealand economy is very strong, we tend to get a drift of people from the Public Service to the private sector, and then during times of economic hardship you get a greater degree of flow the other way, where those that work for the Public Service have a greater degree of stability.

Now, one of the concerns and the first question I want to ask of the Minister is when do we expect to see the Government produce its first Government workforce policy statement under these provisions? The reason I ask that question is a number of submitters said that there should be a requirement for the Government to, in the law, have such a workforce policy statement and to update it at regular periods. So my question to the Minister is: what assurances can he give about the timetable for producing workforce policy statements, when would he expect the first one to be delivered, and if they really are going to be grunty and contribute to a more effective Public Service, what is his attitude to those proposals that said there should be a legal requirement to produce them with this particular time frame? We have all sorts of statutes on our book where public servants, particularly our control agencies like Treasury and the like, can do things, but unless they have statutory requirements to do them within a particular timetable they can drift forever. So firstly a question on workforce policy statements, timetables, and whether we should statutorily require them by time.

I think the member raises a good point in his early part of the contribution that, you know, I think all Governments would like to think that we could do a better job of forecasting the demand for certain types of skills. Governments have not always been able to do that in a particularly reliable way, and I don’t think we should pretend that there’s some magical answer to that. There’s always going to be a challenge there about getting the right balance of skills across our public services. We’ll always, I think, strive to do better.

With regard to when a public workforce policy statement may be produced, that will, of course, be a matter for the next Government. It’s not my intention or the Government’s intention to produce a statement under this legislation—assuming it gets passed in the next 24 hours—before the election, but I would envisage it would be a reasonably high priority for a new Government after the election.

The question I asked the Minister was: should there be a statutory requirement to both deliver a Government workforce policy statement within a particular time frame and for it to be reviewed at a regular level, not necessarily religious as to whether it be three years or five years—that’s what a number of submitters have said. I note he has not picked that up, even though it was strongly submitted on at the select committee that such a requirement should exist, and so my question to the Minister: why not have a specific timetable for delivering a Government workforce policy statement, and isn’t there a real risk that unless there is a requirement to do so, it won’t happen?

In very brief answer to that, the current Government’s position is that there shouldn’t be a legislated requirement around the timetable for that. That’s a matter for different Governments to make decisions on, and different Governments will have different views upon that, so the law should be flexible enough to allow, say, an incoming Government to usher a new workforce policy statement if they wished to.

The second important line of questioning is that the Minister’s Supplementary Order Paper excludes a significant agency. It’s very important for this Parliament that in clause 101, and in respect of clause 97, the Office of the Ombudsman, the Office of the Auditor-General, the Office of the Parliamentary Commissioner for the Environment, the Office of the Clerk of the House of Representatives, and the Parliamentary Service are specifically excluded. Now, I support those. In my view, these are very important separation of powers. It’s not for the Government of the day to be telling the Parliament and the important Offices of Parliament what they do. In my view, you had a risk with the bill as introduced by the Minister that you had the Government of the day intruding on the independence of those agencies. So National is supportive of maintaining the constitutional separation of those.

Here’s the question, though: there are a large number of other agencies that had an independence from the Crown; why has the Minister drawn the line? So, for instance, if we look at the New Zealand Police, in my view, actually, one of the most important protections that we must jealously guard is the independence of the New Zealand Police and the Commissioner of Police around issues of investigations and prosecution. We all know what happens in countries where that process gets politicised. So what I’m interested in testing the Minister on is in making the decisions that his original bill was wrong—that it should not have included the Clerk of the House of Representatives, the Parliamentary Service, the Ombudsman, Auditor-General, and Office of the Parliamentary Commissioner—why has he included others that do have independence, and what is the justification for the new line that he has drawn around the appropriateness of these workforce policy statements and the powers it gives to the State Services Commissioner to have a role in those agencies? Why are there still quite a large number of agencies that have statutory independence? I make the differentiation—I excuse if the language is not perfect. There’s the constitutional separation between the Parliament and the State sector but there is what I would call a statutory independence of a large number of other agencies. Is it really necessary for them to be included within the parameters of what the State Services Commissioner does and the application of these workforce policy statements?

I think the member answered his own question in his very last contribution there. There is a distinction between a constitutional separation, if you like, and a statutory separation or statutory independence. Constitutional separation says that the Parliament and the executive are different and should be treated differently. These provisions weren’t my provisions. They are carried-forward provisions from the State Sector Act. As we got into this discussion, the Clerk of the House and the head of the Parliamentary Service in particular raised questions about whether they should be removed. The Speaker wrote to me and indicated his view that they should. I did consult extensively with parties in Parliament through the Parliamentary Service Commission because I don’t think the executive should make these decisions unilaterally; I think they are, rightly, decisions for the Parliament. I would not have inserted these provisions into this bill had I not been convinced that there was, effectively, unanimous support for them across the House because of the constitutional nature of the changes that we’re making here. So, we have consulted extensively with the member’s party to ensure that these provisions are broadly supported across the House—and they are.

The governing conventions that apply to the police and the Defence Force are not changed by this legislation, so excluding them would, effectively, change the conventions by which they operate at the moment. It’s not our intention to change those existing conventions that already apply.

I wanted some clarity. Is the Minister saying—when he responded to my question he said that Government workforce policy statements, including the Clerk of the House of Representatives and these other offices, were already in the State Sector Act. Is that what he is claiming—that for workforce policy statements, the original bill was consistent with State Sector Act?

I think the point that I was making to the member is that the offices concerned—so the Office of the Ombudsmen, the Office of the Auditor-General, the Office of the Parliamentary Commissioner for the Environment—were covered by parts of the existing State Sector Act. The decision that we have made is to remove them completely from the State Sector Act. With regard to these workforce provisions, of course, some of these provisions are new, so they wouldn’t have been included in the previous legislation. But the principal point that I was making to the member is that aspects of the operations of those entities were previously covered by the State Sector Act. They are now being completely removed from this legislation, and they will be covered by their own legislation.

That’s where I think the Minister was incorrect. He said that “Well, look, the reason this was in the initial bill was because it’s just a carry-over from the State Sector Act.” That is not correct. These workforce policy statements are new provisions. He made a choice incorrectly and made a mistake in introducing the bill with the provision of those offices. It is simply misleading for him to be saying, “Oh, well, the reason they’re in there is it’s just a carry-over from the State Sector Act.” That is not correct, and, actually, it’s really important that the House recognise that and correct the overstretch.

The consultation with other political parties about crossing over into the powers of the House of Representatives and including them should have occurred before the bill was introduced rather than now. I do ask the Minister about those agents that are still included, and that is—I’ll give a good example: the courts. They have a very important independence. Is it his intention that the workforce policy statements would apply to the bench of the judiciary, and how does that deal with the proper separations between the courts and the Government? I look at an agency like parliamentary counsel that is specifically listed. So I go back to my original question. The Minister has, effectively, said, “Yeah, I got it wrong. I shouldn’t have included the House of Representatives. I shouldn’t have included the Office of the Clerk. I shouldn’t have included the Parliamentary Service.” My question is: do these provisions cover workforce planning for the judiciary? And is that appropriate?

The answer to the question is yes, they do. The member can see that it covers all of the—the courts, of course, are covered; they are administered by a Government department. There is separate legislation, of course, that governs the courts. Nothing in here could override the independence that they have under the legislation which gives them that independence. The distinction made here around the Office of the Clerk, the House of Representatives, and the Parliamentary Service, of course, is that they do not report to the executive.

Well, I’d say to the Minister, with due respect, neither do our judges. Has he consulted with the judges that they will be covered by these workforce planning documents? And it is appropriate for the State Services Commission, both in developing Government workforce policy statements, to have the influence that is provided in these set of clauses. Would he not accept that our judges deserve the same level of independence as the House of Representatives? So I ask: has there been consultation about the inclusion of the judges in the workforce policy statements, and is that constitutionally appropriate? We’ve properly separated the House of Representatives. I would suggest the judicial bench is in a similar position.

I have just received clarity for the member. Judges are not covered by this; it’s only Public Service employees of the Ministry of Justice who would be covered.

This shows the nonsense of, under urgency, passing 300 pages of Supplementary Order Papers on the hop—

CHAIRPERSON (Hon Anne Tolley): No, what I think it shows is the benefit of the committee where the Opposition are able to ask the questions that the member is asking and get the clarification of what is the legislation that is before us. There may well be a process that the member doesn’t like, and the member’s taken many opportunities to refer to that. But the benefit of this process is exactly what the member’s doing now, which is asking questions and getting answers and clarifying what this legislation is about.

Absolutely, Madam Speaker. But I ask a question of the Minister: does it cover the judiciary? He says yes.

CHAIRPERSON (Hon Anne Tolley): No, no he didn’t.

Yes he did.

CHAIRPERSON (Hon Anne Tolley): No, he didn’t, actually. In those words, he did not. It has now been clarified that they’re not covered, because they’re not—

Which I am much reassured by—

CHAIRPERSON (Hon Anne Tolley): Good, so can we move on?

Well, that was only as a consequence of the—

CHAIRPERSON (Hon Anne Tolley): Of asking the questions—my point.

That’s right indeed. Indeed, that as a Minister, any member listening to the House to the Minister’s would’ve drawn the—

CHAIRPERSON (Hon Anne Tolley): Move on.

—conclusion that they were included. Well, can we get some clarity in other areas? We have a Children’s Commissioner, we have a Retirement Commissioner, we have a large number of those. Can the Minister clarify whether they are included in these provisions?

💬 Hon Chris Hipkins: I’ll check, if the member wants to keep going—I’ll check.

The Minister doesn’t know.

CHAIRPERSON (Hon Anne Tolley): He’s going to ask advice.

Well, I do have to say, when we’re being asked to pass law under urgency, where we have only 24 hours, I make no apologies for this House for not understanding 200 pages of legislation I only got 24 hours ago.

Yeah, look, I am going to stop the member because the new process that we are implementing here in the committee stage is a question and answer. In fairness, where we had five-minute speeches, and sometimes a member could expand on that and take a 10-minute speech, the Minister had adequate time to seek advice from the officials who are here to help with the detail. But in this case, where it is a pretty quick question and answer and we don’t need to have five-minute speeches for each question, the Minister is able to seek advice. That’s why every committee stage has officials here, and he is perfectly able to seek clarification and advice from the officials. That’s what he’s doing.

💬 Hon Dr Nick Smith: Can’t wait for the answer.

I refer the member to clause 101. I do just want to pick up a point that the member made. All of these provisions, of course, have been through the full select committee process. There are only two minor wording amendments to these provisions that have not been through the full select committee process. So all of these provisions—the member has had ample time to scrutinise those.

But with regard to clause 101, it does specify the difference between an autonomous Crown entity and a Public Service agency. So a Public Service agency or Crown entity must give effect to the workforce policy statement; an autonomous Crown entity must have regard to a Government workforce policy statement.

So the people that member just raised, like the Children’s Commissioner, would be regarded as an autonomous Crown entity. So they have to have regard to it, but they would not have to follow it.

I strongly disagree with the Minister that the select committee had ample opportunity to ask these questions. We did not. I remind the Minister in the chair, the Hon Chris Hipkins, that the Parliament was in the COVID emergency for a good period of the three months. When the Minister says that the select committee did a complete process, that is not true. The committee could not agree on the bill. The bill was not reported back to the House. So that statement is simply false.

Now, I want some clarity in respect of this part as to where it covers. We’ve had a mistake from the Minister as to whether the judges are in or out. The Children’s Commissioner—I’d like to know is he covered? I’d like to know whether the issue of the Tenancy Tribunal—is it covered? Is the Tenancy Tribunal covered by the workforce planning documents? Simple answer: yes or no.

Well, it would depend which categorisation they’re under. So look, can I clarify for the member the bill makes it very clear what’s regarded as a Public Service agency and what’s regarded as an autonomous Crown entity. So the member is, of course, welcome to read the bill to—I’m not going to go through every individual department or agency and identify which categorisation they fall under. The member’s welcome to do that at his own leisure if he wishes to. But it makes it very clear that if they’re part of the Public Service—so they are a Public Service agency or a Crown agent—they must give effect to the workforce policy statements. If they are an autonomous Crown entity such as the Children’s Commissioner, which clearly is, then they only have to have regard to it.

It’s not good enough for the Minister in the chair, the Hon Chris Hipkins, to simply say, “Oh, well, the Minister should read the bill.” This is a 200-page bill for which the Minister introduced a Supplementary Order Paper 24 hours ago to make 200 pages of changes. I’m a diligent member of Parliament, but actually to give that sort of level of detail the scrutiny it deserves is simply impossible for any human being, and I suspect there’s not a member of Parliament in this House that has gone through the 200—

💬 Louisa Wall: Did you read the departmental report?

Yes, I did, but here’s the—the member opposite says “Have I read the departmental report?” You know what that says?

💬 Louisa Wall: That you’re a good member of the select committee.

No, it says that we just do what the Public Service says. Whatever the department says; that’s what the Government does. Well, actually, I don’t have that view.

💬 Hon Chris Hipkins: I raise a point of order, Madam Chairperson. It is very important to note in terms of Parliament’s constitutional principles that we operate under, when Public Service departments are advising committees, they are acting as advisers to the committees, not as advisers to the Government. What the member is saying is an outrageous slander on the quality of our public services and it should not be allowed to stand.

I raise a point of order, Madam Chairperson.

CHAIRPERSON (Hon Anne Tolley): Well, are you speaking to the same point of order or is it a different point of order?

Yes, I am.

CHAIRPERSON (Hon Anne Tolley): You’re speaking to the same point of order.

I am. The Minister has made the claim that the advice that is given to officials at select committee is completely independent of the Government of the day. That is not correct.

CHAIRPERSON (Hon Anne Tolley): No, that is not correct. The Minister has said that the department officials are providing advice to the select committee; they are not providing advice to the Government. That’s a true statement.

That is true. But equally, it is true—and I’ve been in many select committees where officials have made plain the advice that they are giving to the committee is on the direction of Cabinet and the Minister.

CHAIRPERSON (Hon Anne Tolley): Well.

But let’s see what’s occurred here. The Labour—

CHAIRPERSON (Hon Anne Tolley): No, no, we have a point of order taken by the Minister. I gave you the opportunity to speak to that. I think that the Minister is correct and, rightly, we must not in this House attribute the accusations against public servants. They are doing their job and they are—

I didn’t.

CHAIRPERSON (Hon Anne Tolley): Well, I think you were. I think you were very close to it and I am upholding the objection by the Minister, so let’s continue, but let’s—

Let me make my point very plain, Madam Chairperson, and it is this. The Labour member interjected—and that was that the departmental report should stand and that’s it. Actually, it’s the job of this Parliament to not just rubber-stamp the departmental report but to scrutinise it, and I shall continue to do so. I simply want an answer from the Minister in the chair, the Hon Chris Hipkins. If you take the Ministry of Justice, he’d have said that the judges are excluded. My question to him is that there are a whole lot of layers within the Ministry of Justice. Is the Tenancy Tribunal? Is the Employment Tribunal? Are the disputes tribunals—are they covered by the provisions of this part?

💬 Hon Chris Hipkins: I think the comment that I made to the member before is that their independence as specified in the laws that establish those bodies is not changed.

I raise a point of order, Madam Chairperson. The question I asked the Minister was not whether they’ve changed, but whether they are included by this part. Does Part 4—

CHAIRPERSON (Hon Anne Tolley): That isn’t a point of order.

Well, I haven’t had an answer.

CHAIRPERSON (Hon Anne Tolley): Well, that’s the point of order.

So my point of order is: I’ve asked the Minister does Part 4 of this bill that we cover, cover those aspects of the justice ministry—Tenancy Tribunal, Employment Tribunal, disputes tribunal?

💬 Hon Chris Hipkins: As I said to the member before, it would depend on the legal form of those various agencies. If they are a Public Service agency or a Crown agent, then they must give effect to it. If they are an autonomous Crown entity, then they must have regard to it.

I’m still none the wiser.

I move, That the question be now put.

I think we’ll have a little bit more but we don’t want to get repetitive. You’ve asked a question—

💬 Hon Dr Nick Smith: No, I’ve asked the question but I haven’t had an answer.

CHAIRPERSON (Hon Anne Tolley): Well, it has been answered. You might not be satisfied with the answer but it has been answered.

💬 Hon Dr Nick Smith: Well, no, what the Minister in the chair has said is, “Well, I actually don’t know whether those tribunals are included.” He made a mistake about whether the judiciary was included. I’m expecting the Ministry of Justice—

CHAIRPERSON (Hon Anne Tolley): Look, I’m sorry, but I have already said that he did not make a mistake with the judiciary because he did not use the word “judiciary”. You used “courts”.

💬 Hon Dr Nick Smith: I used the word “judges”.

CHAIRPERSON (Hon Anne Tolley): And he talked about—his answer to you was about the courts being public servants and using public funding, so let’s stop that, because that’s not correct.

It is reasonable to ask over Part 4 of this bill as to which Government agencies are included, and which parts of them. What we’ve got from the Minister in the chair, the Hon Chris Hipkins, is confusing answers: go look at this schedule or go look at that to determine that. Actually, we’re making amendments. We have seen that the original bill made a mistake in including the House of Representatives, the Clerk’s Office, the Auditor-General, and other officers. I’m just simply seeking clarity as to whether those tribunals that sit within the Ministry of Justice—we’ve got clarity that our District Court judges, our Supreme Court judges, our High Court judges are not included, and my question to the Minister is: are those large number of tribunals that deal with tenancy disputes and employment covered by this part?

💬 Hon Member: Stop asking the same question.

I just want an answer—[Interruption] Well, are they? Are they in or out?

CHAIRPERSON (Hon Anne Tolley): We’re not going to have a debate across the Chamber. We’re either having a debate properly or we’ll move on. But I think, in fairness, the member’s asked a question. He’s had an answer.

Well, my question was whether they are included. What I’ve been told is “Have a look at another part of the bill.” I’ve had a look at another part of the bill. There is no specific reference to those tribunals, and I am none the wiser. Now, what I do know is that the original bill made a mistake, including agencies that properly should be independent. For me to be told that I’ve had an answer when I have not—does any member in this Parliament know whether Part 4 of this bill applies to the large number of immigration, employment, judicial disputes, and other tribunals? Can any member in the House—Minister or anybody else—tell me whether they are included?

So here we are under urgency, passing law and not knowing what we’re doing. I make no apologies as a member of Parliament for saying when I pass law, I want to know what it’s about, because in the last two months we’ve passed laws and we’ve found out afterwards it was a very different law to what we had requested. So if any member of Parliament or the Government could tell whether those tribunals are included or not, I think the Parliament deserves an answer.

I move, That the question be now put.

Motion agreed to.

The question was put that the amendments set out on Supplementary Order Paper 549 in the name of the Hon Chris Hipkins to Part 4 be agreed to.