State Sector Governance Essentials - Kāinga Ora Governance Capability Uplift Programme - Workbook
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State Sector
Governance Essentials –
Kāinga Ora Governance
Capability Uplift
Programme
Workbook
iod.org.nz
Workbook This workbook has been prepared as a resource for participants in the Institute of Directors in New Zealand (Inc) Director Development programme. It is not intended to be exhaustive or constitute advice. Its content should not be used or relied upon as a substitute for proper professional advice or as a basis for formulating business decisions. The Institute of Directors in New Zealand (Inc) and its employees expressly disclaim all or any liability or responsibility to any person in respect of this workbook and in respect of anything done or omitted to be done by any person in reliance on all or any part of the contents of the workbook. (March 2021)
SSC 11996 A3 Poster v4 19/6/07 10:53 AM Page 1
A code of conduct issued by the State Services Commissioner
under the State Sector Act 1988, section 57
WE MUST BE FAIR
We must:
FAIR, IMPARTIAL, – treat everyone fairly and with respect
RESPONSIBLE & – be professional and responsive
TRUSTWORTHY – work to make government services accessible and effective
– strive to make a difference to the well-being of New Zealand
and all its people.
The State Services is made IMPARTIAL
up of many organisations with
powers to carry out the work of We must:
New Zealand’s democratically – maintain the political neutrality required to enable us to work with
elected governments. current and future governments
– carry out the functions of our organisation, unaffected by our
Whether we work in a department personal beliefs
or in a Crown entity, we must act – support our organisation to provide robust and unbiased advice
with a spirit of service to the
– respect the authority of the government of the day.
community and meet the same
high standards of integrity and
conduct in everything we do. RESPONSIBLE
We must comply with the We must:
standards of integrity and conduct – act lawfully and objectively
set out in this code. As part of – use our organisation’s resources carefully and only for
complying with this code, our intended purposes
organisations must maintain – treat information with care and use it only for proper purposes
policies and procedures that – work to improve the performance and efficiency of our organisation.
are consistent with it.
For further information see TRUSTWORTHY
www.ssc.govt.nz/code We must:
– be honest
– work to the best of our abilities
– ensure our actions are not affected by our personal
interests or relationships
– never misuse our position for personal gain
– decline gifts or benefits that place us under any
obligation or perceived influence
– avoid any activities, work or non-work, that may
harm the reputation of our organisation or of
the State Services.
Published June 2007 ISBN: 978-0-478-30309-4 3
4
Source: https://www.beehive.govt.nz/release/parliament-passes-bill-reform-public-service
5
Public Service Act 2020 Te Kawa Mataaho
Public Service Commission
An overview of the changes
New Zealand’s public service has an enviable international reputation for integrity, responsiveness to
government and effectiveness for New Zealanders. The most recent Kiwis Count Survey reinforces this
reputation, with 2019 results showing New Zealanders have increasing trust in, and satisfaction with, their
public services. The new Public Service Act 2020 (the Act) builds on the high-performance base of the
public service, with the overall aim of delivering better outcomes and services for all New Zealanders.
The Act provides a modern legislative framework that enables a more adaptive, agile and collaborative
public service and includes stronger recognition of the role of the public service in supporting the
partnership between Māori and the Crown.
The key enablers to this are: public service culture and behaviour; an updated framework for employment;
effective leadership; and a greater range of options for configuring fit-for-purpose public service
organisations.
Ngā whakataunga matua | Major decisions
The Government has repealed and replaced the State Sector Act 1988 with the new Public Service Act
2020. This new Act includes provisions across five key areas that will help the public service join up
services around New Zealanders’ needs and secure public trust and confidence, so it remains well placed
to serve New Zealand in the future. The five areas are:
• A unified public service
• Strengthening the Crown’s relationships with Māori
• Employment and workforce
• Leadership
• Organisational flexibility
Along with the system-level public service reform, there is also work being done to improve how public
service agencies organise themselves in the regions.
1 Factsheet 1 of 6
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Public Service Act 2020 Te Kawa Mataaho
Public Service Commission
Ngā pātai me ngā whakautu | Questions and answers
Why do we need the new Public Service Act?
The previous State Sector Act was more than 30 years old and had been amended 13 times. Times have
changed and there are areas where the public service can do better. The new Public Service Act reflects the
context and expectations the public service needs to respond to, today and into the future.
How does the new Public Service Act acknowledge a post COVID-19 environment?
The response of the New Zealand public service to the coronavirus pandemic has been widely recognised
as exemplary, receiving accolades both locally and internationally. In many ways, the pandemic revealed the
public service at its finest – working across boundaries to meet the needs of New Zealanders in a complex
and rapidly changing environment.
The new Act acknowledges the need for more flexible and collaborative approaches to tackling the more
complex challenges that lie ahead and provides the legislative environment that is required to enable this.
What is the significance of the change in focus from State Sector Act to the Public Service Act?
The naming of the Act itself also signals a shift in focus, placing a clear emphasis on the benefit to
New Zealand’s individuals, organisations and communities as the key focus and motivation for all public
service agencies and activities.
How will New Zealanders benefit from the changes in the new legislation?
The public service works for the Government that New Zealanders elect and New Zealanders depend on the
public service for a wide range of services. A public service that is more adaptive, agile and collaborative can
more effectively meet the needs of New Zealanders and the communities it serves.
Was there an appetite for change?
Yes. Consultation feedback showed strong support for the overall direction of the reforms. The new Act
builds on the already strong reputation of the public service for delivering on New Zealanders’ needs.
When will the changes take place?
Some changes have already come into effect, but many of the provisions in the Act are for tools and
instruments that are designed to enable the public service to meet both current and future needs.
These changes will come into effect over time as the need arises.
2 Factsheet 1 of 6
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Public Service Act 2020 Te Kawa Mataaho
Public Service Commission
He ratonga tūmatanui e kotahi ana
A unified public service
A unified public service that acts as one team, with a spirit of service to the community, will lead to more
joined-up, effective services and improved wellbeing outcomes for all New Zealanders.
Ngā whakataunga matua | Major decisions
The new Public Service Act 2020 (the Act):
• helps to create a unified public service with a common purpose, upholding foundational principles and
embodying our core values;
• makes appropriate chief executives and boards of Crown agents responsible for upholding the principles;
• acknowledges a spirit of service as fundamental to the public service and
• reaffirms the term ‘the public service’ to include Crown agents (for the above purposes).
Ka pēhea mō ngā kaimahi tūmatanui | What it means for public servants
The Act affirms and clarifies the purpose and foundational principles and values for all public servants.
It highlights acting with a spirit of service to the community as the fundamental characteristic of the public
service and requires public service leaders and boards to nurture the spirit of service that their staff bring to
their work.
The Act captures why the public service exists and how it fits into New Zealand’s system of government, as
well as enshrining the five foundational public service principles and expected behaviours that support the
integrity of the public service.
Strengthening the shared identity of public servants is intended to unite them in their goal of serving
New Zealanders, regardless of which agency they work in. This will help to drive the cultural shift to build a
unified public service that can quickly mobilise across the sector to tackle specific issues and deliver better
outcomes for New Zealanders.
The unified public service provisions of the Act extend to Crown agents, many of which provide core public
services in areas like health, education, transport and housing. They give effect to government policy and
often need to work closely with other public service agencies.
1 Factsheet 2 of 6
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Public Service Act 2020 Te Kawa Mataaho
Public Service Commission
Ngā pātai me ngā whakautu | Questions and answers
What is the common purpose of the public service?
The Act confirms the purpose of the public service:
“The public service supports constitutional and democratic government, enables both the current
Government and successive governments to develop and implement their policies, delivers high-quality and
efficient public services, supports the Government to pursue the long-term public interest, facilitates active
citizenship, and acts in accordance with the law.”
- Section 11, Public Service Act 2020.
What are the five public service principles?
The five principles are: politically neutral, free and frank advice to Ministers, merit-based appointments,
open government and stewardship.
Although these principles have been in operation across the public service for some time, they have now
been more explicitly formalised through the Act.
What are the values?
The five values are: impartial, accountable, trustworthy, respectful, and responsive.
What is the difference between principles and values?
The principles are fundamental features of the way in which the public service operates. The values
describe the necessary behaviours of public servants to maintain the integrity of the public service.
Why put the purpose, principles and values for the public service into law?
It preserves them as part of our legislative framework and underscores how important they are. It also gives
a much stronger and clearer signal to both the public and those working within the public service regarding
the behaviours that are expected of all public servants and public service agencies.
Who is responsible for upholding the principles?
Public service chief executives and boards of Crown agents are responsible for ensuring the principles are
upheld in their agencies.
What happens if someone breaches a value?
The public service values are given effect through minimum standards set by the Public Service
Commissioner. Minimum standards may be binding on public servants as terms of their employment.
Behaviours inconsistent with minimum standards would be addressed through employment management
processes within an agency.
2 Factsheet 2 of 6
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Public Service Act 2020 Te Kawa Mataaho
Public Service Commission
Why are Crown agents now included in the public service?
Of the Crown entities, Crown agents are closest to government. They give effect to government policy,
include core public-facing service delivery, and often need to work closely with public service departments to
deliver public services. It makes sense for all Crown agents and public service agencies to be unified under a
common purpose and common principles and values.
What does this mean for Crown agents?
Under the new Act, Crown agents are now bound by the same purpose, principles and values as public service
departments and other public service agencies. Boards of Crown agents are responsible for ensuring that the
entities they govern uphold the public service principles.
Which organisations are in the Crown agents group?
There are 46. They include all 20 district health boards, Accident Compensation Corporation, Kāinga Ora,
Waka Kotahi New Zealand Transport Agency, New Zealand Trade and Enterprise, Tertiary Education
Commission, and PHARMAC.
Have the legal status or decision-making powers of Crown agents changed?
No. The provisions in the new Act are about strengthening the shared identity and underlying behavioural
foundations of all public servants – regardless of where they work. It’s aimed at bringing them closer together
in the goal of serving New Zealanders, without fundamentally changing the governance of individual agencies.
Their status remains the same under the Crown Entities Act.
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10Public Service Act 2020 Te Kawa Mataaho
Public Service Commission
Te whakapakari i te honongai waenga
i te Māori me te Karauna
Strengthening the Māori Crown relationship
Ngā whakataunga matua | Major decisions
The Government is committed to improving services and outcomes for Māori and strengthening the
Crown’s relationships with Māori.
The Public Service Act 2020 (the Act) section 14 explicitly recognises the role of the public service to
support the Crown in its relationships with Māori under Te Tiriti o Waitangi/the Treaty of Waitangi.
To this end, the new Act includes provisions that put explicit responsibilities on:
• Public service leaders for developing and maintaining the capability of the Public Service to engage
with Māori and to understand Māori perspectives.
• The Public Service Commissioner, when developing and implementing the newly required leadership
strategy, to recognise the aims, aspirations and employment requirements of Māori, and the need for
greater involvement of Māori in the Public Service.
The new Act also carries over the current requirements on public service employers to operate an
employment policy that recognises the aims, aspirations and employment requirements of Māori, and
the need for greater involvement of Māori in the public service.
The Commissioner and chief executives are accountable to their Minister for upholding their
responsibilities to support the Crown’s relationships with Māori.
1 Factsheet 3 of 6
11Public Service Act 2020 Te Kawa Mataaho
Public Service Commission
Ka pēhea mō ngā kaimahi tūmatanui | What it means for public servants
The reforms aim to unify the Public Service to fulfil its stewardship responsibility to support the Crown’s
relationships with Māori. In practice this will mean:
• Improving the Public Service’s relationships with Māori by creating and continuing collaborative
approaches that are mutually beneficial.
• Greater understanding of te ao Māori woven into the work and ethos of public service, including:
• Te ao Māori concepts, knowledge, values and perspectives
• Te reo Māori (Māori language)
• Tikanga Māori (protocols and customs)
• Te Tiriti o Waitangi/the Treaty of Waitangi and understanding how it applies day-to-day
• Exercise of individual and collective responsibility for a culturally competent public service that
delivers with and for Māori and is committed to supporting Māori leadership and decision-making
roles in the Public Service.
Ngā pātai me ngā whakautu | Questions and answers
What changes will public servants need to make in their routine work because of the reference
in the Act to Te Tiriti o Waitangi/the Treaty of Waitangi?
Guidance will be issued to agencies on what it means to support and strengthen the relationships
between Māori and the Crown under Te Tiriti/the Treaty. Te Arawhiti (the Office for Māori Crown
Relations) has issued guidance to public servants on how they should consider Tiriti/Treaty implications in
policy development and implementation, alongside a range of guidance, tools and training for agencies on
how engagement with Māori should be approached.
Does this new clause require a big shift in thinking and practice for the Public Service?
There are already examples of good practice across the public service – however, we can do a lot more to
strengthen the relationships between Māori and the Crown and ultimately improve outcomes for Māori.
The Act supports the intent of other legislative documents that require the public sector to recognise the
Māori Crown relationships.
How will public servants be supported to make these changes?
Public service chief executives will determine what their agency needs and support each other through
the Public Service Leadership Team to implement these practices. Te Kawa Mataaho Public Service
Commission will provide leadership and advice to support a wider lift in capability across the system.
Te Arawhiti is responsible for supporting Māori Crown relationships, building public sector capability
to engage with Māori, ensuring Crown agencies meet their Te Tiriti o Waitangi/Treaty of Waitangi
settlement commitments and administering the Marine and Coastal Area (Takutai Moana) Act 2011.
2 Factsheet 3 of 6
12Public Service Act 2020 Te Kawa Mataaho
Public Service Commission
Te Puni Kōkiri is the principal policy advisor to Government on Māori wellbeing and development.
Their role includes building Māori capability and capacity, monitoring the effectiveness of public
services for Māori, and leading policy advice on specific issues of importance to Māori.
Who is responsible for making sure public servants can deliver these expectations?
The Public Service Commissioner and public service chief executives will be responsible to their
Minister for delivering on these expectations.
Do the new responsibilities apply to Crown agents and the boards of the Crown agents?
No. However, many Crown agents already recognise special relationships with Māori. For example,
district health boards have specific obligations and responsibilities set out in their governing legislation.
How does this fit with the Maihi Karauna work already underway?
Maihi Karauna is the Crown’s Māori Language Revitalisation Strategy that outlines a vision for the
future of te reo Māori in New Zealand. Maihi Karauna is for all New Zealanders. The strategy puts
specific emphasis on three particular groups that will benefit from revitalising te reo Māori, one of
which is the public service.
The public service reforms to strengthen and enhance Māori Crown relationships complement the
work of Maihi Karauna by extending beyond language revitalisation and broadly setting out both
system and agency baseline capability expectations.
3 Factsheet 3 of 6
13Public Service Act 2020 Te Kawa Mataaho
Public Service Commission
Te whai mahi me te ohu mahi
Employment and Workforce
The employment and workforce provisions of the Public Service Act 2020 (the Act) are designed to
help develop the public service workforce of the future. The changes also support the aim of building
a unified public service that acts as one team, with a spirit of service to the community, resulting in
more joined-up, effective services and improved wellbeing outcomes for all New Zealanders.
Ngā whakataunga matua | Major decisions
Provisions in the Act include:
• Employees being appointed to the public service at the same time as being employed by
departmental chief executives, or by the board in the case of an interdepartmental venture.
• Broadening the Public Service Commissioner’s delegation powers for collective agreement
negotiations.
• Adding pay equity claims as one of the things the Commissioner is responsible for negotiating in
the public service.
• Setting out government expectations in public service-wide workforce policy statements
covering, for example, pay equity, diversity, development, and the portability of service-related
entitlements.
• Improving workforce diversity by explicitly recognising its value and requiring chief executives
and boards of interdepartmental ventures to foster workplaces that are inclusive of all.
• In the future, making annual leave entitlements portable across the public service to aid career
mobility across departments
Ka pēhea mō ngā kaimahi tūmatanui | What it means for public servants
These changes are about making the public service a more attractive and inclusive place to work, by:
• fostering a common shared identity for public servants
• recognising the importance of diversity, and inclusive workplaces
• supporting the sector to address pay equity and other cross-sector workforce issues
• enabling cross-public service negotiation of terms and conditions of employment and
• making career mobility between departments easier through portability of annual leave.
1 Factsheet 4 of 6
14Public Service Act 2020 Te Kawa Mataaho
Public Service Commission
Ngā pātai me ngā whakautu | Questions and answers
What does being appointed to the public service mean?
Although public servants continue to be employed in their departments under the new Act, they are also
considered to be ‘appointed to the public service’ by their chief executive (or by the board in the case of
people employed by an interdepartmental venture). The intent is to encourage public servants to identify not
just as employees of their agency but as part of a much bigger unified public service.
How does being appointed to the public service affect someone’s employment in individual agencies?
It doesn’t affect any individual employment processes. The agency chief executive (or board of an
interdepartmental venture) still employs individual staff and continues to have all the obligations, rights, and
powers that go with being the employer.
Are there any changes to rights in negotiations?
No. The Employment Relations Act 2000 sets out the rights of employers, unions, and employees to
negotiate on employment matters. The new Public Service Act does not change these rights.
Will there be common terms and conditions across the public service?
The Public Service Act enables common terms and conditions of employment to be negotiated where all
parties agree this is a good idea.
Will there be changes to leave provisions?
The Public Service Act includes a change to ensure that accumulated statutory leave – including annual leave
– can transfer with public servants when they move from one department to another.
These provisions will come into force after any changes to the Holidays Act 2003.
Would redundancy entitlements change?
No. Redundancy options and entitlements stay the same as they are now.
Can public servants be compulsorily moved to a new job in a different department?
No. Public servants continue to be employed in their specific departments and any move to a new job
requires their agreement.
Why are the Public Service Commissioner’s responsibilities broadened to include pay equity?
The intent of the pay equity provisions is to provide a statutory mandate for the Commissioner to monitor
and promote the orderly and efficient handling of pay equity claims in the public service, consistent with the
Reconvened/Joint Working Group Pay Equity Principles. This oversight role will also help the Government
to plan for the impact of any pay equity settlements in the public service.
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15Public Service Act 2020 Te Kawa Mataaho
Public Service Commission
What impact does the pay equity provision have?
The public service is already responding to the Government’s commitment to achieve pay equity, with a
number of pay equity claims currently being progressed by applying the Pay Equity Principles ahead of
amendments to the Equal Pay Act 1972.
The Public Service Act’s provisions add legislative strength to these efforts by making the Public Service
Commissioner responsible for pay equity claims in the public service as if the Commissioner were the
employer. The Commissioner can delegate their functions relating to pay equity and may set conditions on the
delegations.
What changes need to be made to agency workplaces because of the diversity and inclusion provisions
under the new Act?
Chief executives and boards of interdepartmental ventures are expected to build an inclusive workplace
culture that attracts and promotes diversity. This includes the removal of any barriers that prevent people
from having fair and equal access to employment and career progression opportunities.
Diverse workforce and inclusive practices help the public service to treat all employees fairly and to be
responsive and engage more effectively with the communities it serves. This in turn enables the public service
to deliver more innovative and effective programmes that have a meaningful impact on social, economic and
wellbeing outcomes for New Zealanders.
Under the new Act, do public servants have individual or standardised employment agreements?
This will be negotiated between employers and employees in each case, with agreement from both parties as
to the most appropriate approach.
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16Public Service Act 2020 Te Kawa Mataaho
Public Service Commission
Te kaiaratakinga o te ratonga tūmatanui
Leadership of the Public Service
Strong, system-focused public service leadership is needed to improve outcomes for all New Zealanders.
System-focused leadership also positions the New Zealand public service for the future, helping reaffirm
and preserve the key elements that have helped win our strong international reputation for integrity,
effectiveness and responsiveness.
Ngā whakataunga matua | Major decisions
The Public Service Act 2020 (the Act) supports system-focused leadership through:
• Establishing a Public Service Leadership Team (PSLT) of chief executives. This will work as an executive
team to support a unified public service and will be led by the Public Service Commissioner.
• Requiring the Commissioner to develop a leadership strategy that enables and supports the development
of senior leaders to lead and move across boundaries and take a broad range of experience and skills into
chief executive roles in the future.
• Allowing for the creation of functional chief executives who, along with chief executives of departments,
can be designated as system leaders, with responsibility for leading and co-ordinating work in a particular
area across the State services.
Ka pēhea mō ngā kaimahi tūmatanui | What it means for public servants
Under the Act, the public service shifts from a primary focus on agency leadership to an additional strong focus on
system leadership. This is about building the right culture and behaviour first, rather than relying on rigid systems
and processes.
Chief executives have already started to lead together for the system. Under the Act, this group becomes
formalised as the new Public Service Leadership Team, which will help public servants build on this collective way of
working.
Under the Act, chief executives can be mandated as ‘system leaders’, giving them the power to create standards
(with Ministerial agreement) that have mandatory effect across the public service and will help public servants with
specific functions. This formalises the existing model of ‘functional leads’ to provide leadership on system-level
issues such as digital, property, and health and safety.
The leadership strategy will support the development of the skills and experience needed for the future and help
senior leaders to more easily address system-wide issues beyond agency boundaries. This will also create a broader
range of public service leadership opportunities. The Act includes mechanisms to enable senior leaders to identify
development opportunities and/or move between roles, while upholding the principle of merit-based appointment.
1 Factsheet 5 of 6
17Public Service Act 2020 Te Kawa Mataaho
Public Service Commission
Ngā pātai me ngā whakautu | Questions and answers
Does the new legislation establish a senior leaders’ service?
No. The legislation does not set out a structure or process change for the employment of senior leaders.
Instead, the leadership strategy will be developed and implemented in consultation with chief executives
and senior leaders. This will further develop the role of the Public Service Leaders Group.
What will the leadership strategy cover?
All public service chief executives will assist in the development of the strategy. It will address both the
development of senior leadership and management capability in the public service.
Under the Act, the Commissioner may issue guidance to help implement the leadership strategy. Chief
executives and boards that are employers of staff in public service agencies will be required to have regard
to the strategy in making appointments and deploying leaders.
Do senior leaders have a say on when they move across the system into another role?
Yes. The agreement of the individual concerned and of the relevant chief executives is required before any
moves can be confirmed.
How is Te Kawa Mataaho Public Service Commission structured?
Te Kawa Mataaho Public Service Commission is led by the Public Service Commissioner and two statutory
Deputy Public Service Commissioners. The previous legislation only provided for one statutory deputy.
What’s the purpose of the Public Service Leadership Team?
The Public Service Leadership Team (PSLT) is building on the progress made towards a more collective
approach to system issues. The PSLT brings together public service chief executives and other senior
leaders to focus on the interests of the whole system, rather than those of a single agency. Providing for a
PSLT in legislation embeds this collective way of working for the future and ensures it remains sustainable.
If chief executives are required to work collectively, how will this affect how they lead their
agencies?
Agency chief executives still have individual responsibilities and will continue to focus on the results they are
expected to deliver as agency leaders. Alongside those responsibilities, the PSLT is about chief executives
working together as a team to improve how the system operates.
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18Public Service Act 2020 Te Kawa Mataaho
Public Service Commission
Why do we need system leaders?
System leaders support improved capability and inter-operability across the public service in a way that
benefits all agencies. For example, better back-office integration and more integrated services for New
Zealanders are only possible through system leadership that focuses on improvements to digital and data
systems across the public service.
A system-wide leadership approach enables the public service to meet its system stewardship responsibilities
on behalf of the individuals, communities and organisations across New Zealand.
Who are functional chief executives responsible to?
They are responsible to the appropriate Minister for their functions. Like chief executives of departments, they
are appointed and employed by the Public Service Commissioner.
Does the Public Service Act apply to Crown agent chief executives?
Crown agent chief executives may be invited by the Public Service Commissioner to join the Public Service
Leadership Team. Similarly, the Commissioner may promote the leadership strategy to the State services
(which includes Crown agents) and invite them to assist in the development and implementation of the
leadership strategy.
Crown agent chief executives cannot be made system leaders under the legislation.
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Public Service Commission
Ngā whakahaere o te ratonga tūmatanui
Organisations of the public service
The public service needs to be able to organise flexibly around the needs of New Zealanders without
being unnecessarily constrained by administrative boundaries.
Ngā whakataunga matua | Major decisions
Under the Public Service Act 2020 (the Act), the new system design provisions allow for:
• A more flexible departmental agency model.
• Two different types of public service joint ventures – interdepartmental ventures and joint
operational arrangements – that support joined-up, agile service delivery and joint resource
management, including of assets and staff.
• Interdepartmental executive boards that support joined-up planning and budgeting and/or policy
alignment on complex cross-cutting issues.
Ka pēhea mō ngā kaimahi tūmatanui | What it means for public servants
Under the Act, there are more formalised and flexible options for organisational arrangements to support
public service agencies taking a truly collaborative, joined-up approach to tackling some of the big
challenges facing the country today.
This means that:
• Some of the most successful collaborations are further strengthened.
• The ability to be truly collaborative is supported and encouraged, rather than held back or
obstructed by system settings.
Collaborating agencies are now able to align strategy and planning activities in overlapping policy areas.
This makes it possible to harness the capabilities of individual agencies to collectively plan for and respond
to complex cross-agency problems or priorities.
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20Public Service Act 2020 Te Kawa Mataaho
Public Service Commission
Ngā pātai me ngā whakautu | Questions and answers
Why is there a need to change the way the Public Service organises itself?
The current organisation of our public service into agencies that operate as separate businesses
works well for many tasks. However, it has struggled to respond effectively to complex issues that
cross agency boundaries.
What can an interdepartmental venture or executive board do that couldn’t be done
before?
Until now, cross-agency working arrangements have been voluntary and it was often difficult
to fund and sustain them over time. Interdepartmental ventures and executive boards provide
formal structures to support collaborative working. For example, they allow boards of chief
executives to administer funding and employ public servants collectively, instead of one chief
executive having to do so on behalf of a group.
What is the difference between an interdepartmental venture and an interdepartmental
executive board?
An interdepartmental venture brings together the delivery of services from across a small number
of agencies. An interdepartmental executive board provides collective strategic policy advice to
Ministers for cross-agency issues.
Who appoints the board members of interdepartmental ventures?
The agencies involved are determined by Cabinet when the venture is established.
Interdepartmental venture boards are automatically comprised of the chief executives of the
agencies involved in the venture.
Who decides which chief executives govern executive boards?
Cabinet determines which agencies are included in the remit of the board. The Public Service
Commissioner – as the employer of Public Service chief executives – then appoints chief
executives from within this remit as board members, after consulting with Ministers.
Who employs the staff in the executive boards and interdepartmental ventures?
The board of an interdepartmental venture can employ staff directly, in the same way the board
of a Crown entity does. An interdepartmental executive board can act as the employer of staff,
for most purposes, in a similar arrangement to the departmental agency model.
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Public Service Commission
What are the differences between the new flexible departmental agency model,
and the old one?
The new model provides additional flexibility across three key structural decisions:
• Whether the departmental agency operates within the strategic framework of its host
department or sets its own strategic framework.
• Whether the departmental agency will receive corporate service support from its host
department.
• Whether the departmental agency holds control and responsibility for the financial
management of assets.
The Public Service Act also clarifies the responsibility of the departmental agency chief
executive for the relationship with individual departmental agency employees, and how relevant
legislation such as the Health and Safety at Work Act 2015 and the Privacy Act 2020 apply to
departmental agencies.
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Circular 22 October 2019
Intended for All Ministers
All Chief Executives
All Senior Private Secretaries
All Private Secretaries
All officials involved in policy development
Te Tiriti o Waitangi / Treaty of Waitangi Guidance
Introduction
1 This circular sets out guidelines agreed by Cabinet for policy-makers to consider the Treaty of
Waitangi in policy development and implementation.
Background
2 The Treaty of Waitangi (the Treaty) is one of the major sources of New Zealand’s constitution1.
3 Much has been thought, written and said about the Treaty, the circumstances of its creation, the
differences between the English and Māori texts and the consequent difficulties of understanding its
meaning and implications in the modern day. The texts of the Treaty (from the Treaty of Waitangi Act
1975 and a translation by Sir Hugh Kawharu) are attached to this guidance as Appendix 3.
Te Tiriti o Waitangi/The Treaty of Waitangi
4 The Treaty consists of a preamble and three articles. The influence of the Treaty on New Zealand’s
constitution has fluctuated in the years since its signing. Since 1975, however, reference to the Treaty
has been included in many laws passed by Parliament, and the courts and Waitangi Tribunal have
developed a considerable body of Treaty jurisprudence.
5 The Cabinet Manual states the Treaty of Waitangi is regarded as a founding document of government
in New Zealand and that it:
“may indicate limits in our polity on majority decision-making. The law may sometimes accord a
special recognition to Māori rights and interests such as those covered by Article 2 of the Treaty.
And in many other cases the law and its processes should be determined by the general recognition
in Article 3 of the Treaty that Māori belong, as citizens, to the whole community. In some
situations, autonomous Māori institutions have a role within the wider constitutional and political
system. In other circumstances, the model provided by the Treaty of Waitangi of two parties
negotiating and agreeing with one another is appropriate. Policy and procedure in this area
continues to evolve.” [Cabinet Manual 2017, p. 2]
1
Other major sources include The Constitution Act 1986, the prerogative powers of the Queen, the State Sector Act 1988, the Electoral Act 1993,
the Senior Courts Act 2016, the New Zealand Bill of Rights Act 1990 and other relevant New Zealand, English and United Kingdom statutes,
relevant decisions of the courts and the conventions of the constitution (Cabinet Manual, p. 2).
289676v1 1 236 For further discussion see the Te Puni Kōkiri booklet ‘Key concepts in the Treaty exchange’2.
Context is important
7 The Treaty creates a basis for civil government extending over all New Zealanders, on the basis of
protections and acknowledgements of Maori rights and interests within that shared citizenry.
8 Any specific meaning of the Treaty, and its implications for particular issues, is not easy to specify in
advance as it depends on circumstances and views that surround any issue at the time it arises.
The Treaty must be considered ‘on the whole’
9 No article of the Treaty stands apart from the others. Consideration of how the Treaty applies in any
situation will require consideration of the applicability of all articles and the relationship each has to
the others.
Existing government guidance on the Treaty of Waitangi
10 There are sources of information about the appropriate policy tools to use in developing policy and the
Treaty and its place in the New Zealand constitution that policy makers should be aware of. They
include:
10.1 the Department of Prime Minister and Cabinet’s Policy Project website, including the policy
methods toolbox;
10.2 the Cabinet Manual (the authoritative guide to central government decision making for
Ministers, their offices, and those working within government);
10.3 Legislation Design and Advisory Committee’s Legislation Guidelines (2018 Edition).
11 Since the government last provided broad Treaty guidance to the public service in 1989 over 70 Treaty
settlements have been negotiated between Māori and the Crown. The courts have recognised tikanga
Māori as part of New Zealand common law and as a value that informs development of the common
law. While their precise impact on the common law and statute will vary, rights at tikanga may have a
relevance in legal disputes independent of statutory incorporation of the Treaty.
12 Treaty settlements settle claims relating to, and provide redress for, historical acts and omissions of the
Crown. The Māori Crown relationship continues post-settlement, and past conduct (even if settled)
may inform what a reasonable and honourable Treaty partner will do in the future.
13 A number of government agencies have guidance about applying the Treaty (and more commonly, its
principles) in the course of their work. The New Zealand Productivity Commission reviewed 10
examples in 2014. More information can be found on the Commission’s report ‘Regulatory institutions
and practices.
Guidance provided by the Courts and Waitangi Tribunal
14 The body of Treaty jurisprudence developed by the courts and the Waitangi Tribunal focusses on
principles derived from the Treaty. For more information on this see the Te Puni Kōkiri booklet ‘The
principles of the Treaty of Waitangi as expressed by the Courts and the Waitangi Tribunal’3.
2
https://www.tpk.govt.nz/documents/download/179/tpk-treatykeyconcepts-2001-en.pdf
3
https://www.tpk.govt.nz/documents/download/179/tpk-treatyprinciples-2001-en.pdf
289676v1 2 2415 New Zealand courts have held that Māori rights might be recognised by the common law, without
statutory expression, and a decision maker may be required to weigh the Treaty rights/interest even
where there is no Treaty reference in statute. The courts will generally presume that Parliament intends
to legislate in accordance with Treaty principles4.
16 The Waitangi Tribunal plays an important role in providing advice to government on the application of
Treaty principles in relation to acts or omissions of the Crown which Māori allege breach the
principles of the Treaty.
This guidance
17 While the courts and previous guidance have developed and focussed on principles of the Treaty, this
guidance takes the texts of the Treaty as its focus.
18 A glossary of Māori terms used throughout this guidance is attached as Appendix 1.
19 This guidance does not:
19.1 rewrite the Treaty. It provides guidance on how the terms and concepts in the texts of the
Treaty should be applied by government officials in undertaking their work;
19.2 create new legal obligations on Crown agencies. It should instead guide and support Crown
agencies processes and decision-making. Agencies will consider the specific context of the
relevant issue, policy or initiative;
19.3 replace all previous government guidance on the Treaty. It sets out questions for policy-makers
to consider in developing policy proposals so that the resulting policy appropriately recognises
the influence the Treaty should have in the circumstances.
20 Answering the questions in this circular will allow policy makers to demonstrate an appreciation of
kawanatanga, rangatiratanga and other key Treaty concepts and their applicability to their work.
21 A quick reference ‘Treaty guidance at a glance’ is attached as Appendix 2 for use when
policy-makers are more familiar with the guidance.
22 The courts will continue to have a role in interpreting laws where the Treaty is relevant to a matter.5
4
The Treasury, ‘Consistency with the government’s Treaty of Waitangi obligations’
5
Specifically, in relation to the Supreme Court, see ss66(1) and 74(3) of the Senior Courts Act 2016
289676v1 3 25Article One
23 Put simply, by Article One the government gained the right to govern.
Back translation of Māori text
English version Māori version
by Sir Hugh Kawharu6
Article the First Ko te Tuatahi The first
The Chiefs of the Confederation of Ko nga Rangatira o te The Chiefs of the Confederation
the United Tribes of New Zealand Wakaminenga me nga Rangatira and all the Chiefs who have not
and the separate and independent katoa hoki ki hai i uru ki taua joined that Confederation give
Chiefs who have not become wakaminenga ka tuku rawa atu ki absolutely to the Queen of England
members of the Confederation cede te Kuini o Ingarani ake tonu atu-te for ever the complete government7
to Her Majesty the Queen of Kawanatanga katoa o ratou over their land.
England absolutely and without wenua.
reservation all the rights and powers
of Sovereignty which the said
Confederation or Individual Chiefs
respectively exercise or possess, or
may be supposed to exercise or to
possess over their respective
Territories as the sole Sovereigns
thereof.
Questions to guide policy-makers:
1. How does the proposal/policy affect all New Zealanders? What is the effect on Māori (if different,
how and why?)
1.1. Will the proposal affect different Māori groups differently?
1.2. What could the unintended impacts on Māori be and how does the proposal mitigate them?
2. How does the proposal demonstrate good government within the context of the Treaty?
2.1. Have policy-makers followed existing general policy guidance?
2.2. Are there any legal and/or Treaty settlement obligations for the Crown?
3. What are the Treaty/Māori interests in this issue?
3.1. How have policy-makers ascertained them?
4. How does the proposal demonstrate that policy-makers are meeting the good faith obligations of
the Crown?
5. To what extent have policy-makers anticipated Treaty arguments that might be made?
5.1. And how does the proposal respond to these arguments?
6
Sir Hugh Kawharu’s translation sets out to show how Māori would have understood the meaning of the text they signed. It was published in the
book Waitangi Revisited: Perspectives on the Treaty of Waitangi, edited by Michael Belgrave, Merata Kawharu and David Williams (Oxford
University Press, 1989)
7
'Government': 'kawanatanga'. Sir Hugh’s view was that “there could be no possibility of the Māori signatories having any understanding of
government in the sense of 'sovereignty': ie, any understanding on the basis of experience or cultural precedent.” This view is not universally held.
For more discussion of the views and understandings of participants at 1840 see He Whakaputanga me te Tiriti / The Declaration and the Treaty:
The Report on Stage 1 of the Te Paparahi o Te Raki Inquiry, particularly chapter 10 (Waitangi Tribunal 2014).
289676v1 4 26How does the proposal/policy affect all New Zealanders? What is the effect on Māori (if
different, how and why)?
24 The Treaty may justify different treatment of Māori interests or involvement of Māori in an issue, but
it does not confer greater rights on Māori than the government owes to all New Zealanders.
25 This question asks that policy-makers consider whether, having properly assessed the Māori/Treaty
interest in an issue, the proposal demands an approach/approaches for Māori that differs to the
approach/approaches for other New Zealanders. If it does, then policy-makers should be able to
articulate how and why.
26 There are two secondary questions to ask in relation to this question:
26.1 Will the proposal affect different Māori groups differently?
26.2 What could the unintended impacts on Māori be and how does the proposal mitigate them?
How does the proposal demonstrate good government within the context of the Treaty?
27 In a Treaty context, ‘good government’ means government properly conducted with due regard to the
range of obligations a government has to the people it governs, and particularly in regard to Treaty
obligations.
28 In essence, this question asks whether work towards the policy under development appropriately
acknowledges the right of government to make laws with the right of Māori to retain authority over
certain things.
29 There are two supplementary questions to ask in relation to this question:
29.1 Have policy-makers followed existing general policy guidance?
29.2 Are there any legal and/or Treaty settlement obligations for the Crown?
Throughout all phases of a policy project, policy-makers should assemble and review what they know
about the economic, social, technical, cultural and other important forces causing or perpetuating the
policy problem. The question in paragraph 29.1 above asks whether the existing guidance referred to
in paragraph 10 has guided policy development. If it has, then policy-makers can have some
confidence that the outcome has accounted for a Treaty interest to an extent.
30 There are other tools available to policy-makers who may be unaware of whether there are existing
legal obligations for the Crown to Māori in relation to many issues, among them:
The Settlement Portal – Te Haeata
Te Haeata is an online record of Treaty settlement commitments, to help agencies and settled
groups search for and manage settlement commitments.8
List of Treaty references in primary legislation
Pages 160-163 of the New Zealand Productivity Commission’s 2014 report ‘Regulatory institutions
and practices’ lists 36 Principal Acts with references to the Treaty or Treaty Principles.
8
http://www.tearawhiti.govt.nz/te-kahui-whakamana-settlement-commitments/
289676v1 5 2731 Even where “Treaty clauses” are not present in legislation or regulations, the particular context may
require the Crown to have regard to the Treaty.
32 Statutes with references to the Treaty or Treaty principles often contain regulatory provisions and
create obligations on a range of parties that are not the Crown (e.g. local government, Crown entities,
Officers of Parliament and body corporates).
What are the Treaty/Māori interests in this issue?
33 Identifying the Treaty/Māori interest in a given issue is critical to being able to answer the question of
the extent to which Māori retain the right to control and/or implement the policy being developed.9
34 The extent of the Māori interest in an issue will vary from issue to issue.
35 There is a secondary question to ask in relation to this question:
35.1 How have policy-makers worked out the Treaty/Māori interests?
36 Following Te Arawhiti’s engagement framework and guidelines will give policy-makers confidence
that they have appropriately determined the Treaty/Māori interests in an issue.
How does the proposal demonstrate that policy-makers are meeting the good faith
obligations of the Crown?
37 The courts and Waitangi Tribunal have described the Treaty generally as an exchange of solemn
promises about the ongoing relationships between the Crown and Māori with qualifications. By
signing the Treaty, Māori expected the Crown to act honourably towards them; they expect the Crown
to protect their interest in everything it promised to, and they expect the Crown to respect their right to
make decisions over matters of significance to them.
38 Put more simply, this question asks policy-makers to consider whether the policy being developed
keeps the promise the Crown made to Māori to protect their interests and allow for Māori retention of
decision-making in relation to them.
39 Because the Māori Crown relationship is a continuing one, the Crown and Māori should act reasonably
and in good faith towards each other, consulting with each other and compromising where appropriate.
To what extent have policy-makers anticipated Treaty arguments that might be made?
40 There is a supplementary question to ask in relation to this question:
40.1 How does the proposal respond to these arguments?
41 Māori have long had recourse to the courts to challenge Crown decisions and actions. The courts have
made significant decisions in relation to the application of the Treaty in New Zealand, particularly
over the last 35 years. The Waitangi Tribunal is also an important forum where Treaty arguments may
be made by Māori and the Crown.
9
Legislation Design and Advisory Committee, legislation Guidelines (2018 Edition), Chapter 5.1, page 28,
http://www.ldac.org.nz/guidelines/legislation-guidelines-2018-edition/
289676v1 6 2842 In recent years the Courts have indicated they may take particular care where Māori rights and
interests are raised in cases, including when interpreting laws passed by Parliament. This reinforces
the constitutional importance the Treaty has grown to have in New Zealand. It is important that policy-
makers conduct their work in such a manner as to make Treaty consistent decisions. This in turn will
assist in any response to litigation.
43 This question requires policy-makers to consider what arguments could be made that their work is
inconsistent with the Treaty. When considered early in policy development the answer to this question
may lead policy-makers to modify their intended course of action.
44 This question does not imply a Māori right to veto government decisions. It is a means of testing
whether the proposed actions/decisions are cognisant of the obligations the Treaty conferred on the
Crown. Care must be taken to weigh and balance the relevant considerations in a particular issue.
45 This question points to the importance of a Minister and/or department being able to have confidence
that they have appropriately considered the range of relevant factors in relation to a certain issue, and
specifically the Treaty/Māori interest in the case of challenge by Māori.
289676v1 7 29Article Two
46 Put simply, by Article Two the Crown promises that Māori will have the right to make decisions over
resources and taonga which they wish to retain.
Back translation of Māori text
English version Māori version
by Sir Hugh Kawharu
Article the Second Ko te Tuarua The second
Her Majesty the Queen of England Ko te Kuini o Ingarani ka wakarite The Queen of England agrees to
confirms and guarantees to the Chiefs ka wakaae ki nga Rangatira ki nga protect the chiefs, the subtribes
and Tribes of New Zealand and to the hapu-ki nga tangata katoa o Nu and all the people of New
respective families and individuals Tirani te tino rangatiratanga o o Zealand in the unqualified
thereof the full exclusive and ratou wenua o ratou kainga me o exercise10 of their chieftainship
undisturbed possession of their Lands ratou taonga katoa. Otiia ko nga over their lands, villages and all
and Estates Forests Fisheries and other Rangatira o te Wakaminenga me their treasures.11 But on the
properties which they may collectively nga Rangatira katoa atu ka tuku ki other hand the Chiefs of the
or individually possess so long as it is te Kuini te hokonga o era wahi Confederation and all the Chiefs
their wish and desire to retain the same wenua e pai ai te tangata nona te will sell12 land to the Queen at a
in their possession; but the Chiefs of the Wenua-ki te ritenga o te utu e price agreed to by the person
United Tribes and the individual Chiefs wakaritea ai e ratou ko te kai hoko owning it and by the person
yield to Her Majesty the exclusive right e meatia nei e te Kuini hei kai hoko buying it (the latter being)
of Preemption over such lands as the mona. appointed by the Queen as her
proprietors thereof may be disposed to purchase agent.
alienate at such prices as may be agreed
upon between the respective Proprietors
and persons appointed by Her Majesty
to treat with them in that behalf.
Questions to guide policy-makers:
1. Does the proposal allow for the Māori exercise of rangatiratanga while recognising the right of the
Crown to govern?
1.1. Can/should the proposal, or parts of it, be led by Māori?
1.2. What options/mechanisms are available to enable rangatiratanga?
2. Have Māori had a role in design/implementation?
2.1. If so, who?
2.2. If not, should they?
3. Does the proposal:
3.1. enhance Māori wellbeing?
3.2. build Māori capability or capacity?
4. Is there any aspect of this issue that Māori consider to be a taonga?
4.1. How have policy-makers come to their view of whether the issue is a taonga, and is there
consensus?
4.2. What effect does that have on the proposal?
10
'Unqualified exercise' of the chieftainship — would emphasise to a chief the Queen's intention to give them complete control according to their
customs. 'Tino' has the connotation of 'quintessential'.
11
The Waitangi Tribunal has stated that “the Māori interest is not absolute. The degree of protection must be decided on a case-by-case basis,
and may be overridden in appropriate circumstances following a proper balancing of kaitiaki and competing interests. There may be some
circumstances in which access and benefit sharing arrangements cannot be justified even where matauranga Maori is used.” (Ko Aotearoa Tenei:
Report on the Wai 262 Claim).
12
Māori 'hokonga', literally 'sale and purchase'. 'Hoko' means to buy or sell.
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