Until there is a considerable strengthening of the accountability mechanisms, the parliamentary term should not be extended, argues Brian Easton in this edited excerpt from his latest book In Open Seas: How the New Zealand Labour Government Went Wrong: 2017–2023.
A British Lord Chancellor described the British political system as an “elected dictatorship”. Even so, it is meant to act in the interests of the people. Because dictators usually ignore any such responsibility, liberal democracies have accountability mechanisms to restrain them or expose them if they do.
In a democracy there are many accountability mechanisms including the independent media, other private sector agents and the legal system. Perhaps the most important mechanism is “free” (i.e. independent) elections of a parliament which both appoints the political wing of the government and holds the entire government to account between elections.
The term of a New Zealand parliament is three years. There is some support by those in power for a longer term, although out of power they hanker for an early election. One suspects that the population generally favours a shorter period to keep “the buggers honest”. Strong and robust accountability requires mechanisms between elections.
The government has two major wings: a political wing of cabinet ministers who are also members of parliament and a public service wing, with the main purposes of advising the ministers and implementing the government’s policies. Parliament has two main means of enforcing accountability: by challenging a minister about something for which they are responsible and by directly challenging a part of the bureaucracy.
Neither channel seems to be particularly effective. MPs prefer to personalise issues so they become too eager to blame a minister, even when it is not the minister’s responsibility, enabling the bureaucracy to hide behind its ministers.
Nor do the select committees seem to work particularly well. An indication of the bureaucracy’s contempt for them was when “faceless [Department of] Internal Affairs officials went behind the backs of MPs to make ‘unauthorised’ changes to the bills setting in place the government’s Three Waters reforms”. The journalist, Jonathan Milne, went on to comment, “it’s indicative of the ongoing problem we have in New Zealand, that parliament is highly dependent on the executive for advice on bills and drafting. The people who are amending the bill don’t work for parliament, but for the government.”
The Australian system has two sorts of select committees. One, chaired by a member of the government caucus, deals with the government’s legislation; the other, chaired by someone from the Opposition, scrutinises government agencies. There appears little parliamentary enthusiasm for such an approach in New Zealand.
The arrogance of the bureaucracy is well illustrated by the 2020 Public Service Act. The government gave the public six weeks for public consultation after taking years to prepare the bill. Did it think that the public has little interest in the way the bureaucracy is run and no competence to comment on it? The Public Finance Act was amended in a way which weakened parliamentary control of the public finances; MPs complied.
MMP selects a parliament which is reasonably representative of the population, but parliament itself selects the prime minister on a winner-takes-all basis so that the cabinet does not reflect the whole of parliament. Strengthening parliamentary accountability shifts cabinet’s decisions back towards the political centre.
Criticism is at the heart of the ability to hold the government to account. We need to think about weakening the control that central parties have over who gets elected because this limits the ability of MPs to criticise. A particularly onerous control is each party’s election list where a high ranking returns the MP to parliament even if they lose their electorate seat. It is standard to interpret the ranking as an indication of the degree of favour the central party bestows on the candidate not of competence or ability.
It is not obvious how to reduce the power the central party has over its ranking simply; complexity would cause confusion. One proposal is not to have a ranked list at all. Instead the additional MPs, required to make up the number above those directly elected, would be those candidates in each party who won the most electorate votes despite losing their seats.
Further power comes from the way political parties are funded. Funders are not representative of the population and the funding biases political decisions. Once every three years, parliament reviews the rules about political party financing. Yet there remain too many loopholes which parties hungry for funds exploit. That makes them vulnerable to (often secret) pressures in which dollars overrule people.
Parliament procedures need to be strengthened. It might be useful if when introducing a bill to parliament the government distinguished between those which are central to its policies and those which come from the bureaucracy and where it is willing to consider changes if the evidence presented to the select committee suggests them. Ministers do not have to front their department’s ambitions.
Stronger and more independent MPs are not enough. They need to hold the government accountable, which is different from “opposition” – opposing the government. Sadly, the “loyal opposition” (either party) and critics often do not seem to understand the distinction between the two tasks. Too often the issue is presented as if the only failure is failure by a government politician.
The best parliamentary accountability currently comes from officers of parliament who are appointed by statute with the powers to carry out tasks that the MPs could do but do not have the time or the technical capability to do. Currently there are three officers of the New Zealand parliament: auditor general; commissioner for the environment; Ombudsman.
There are similar positions in the bureaucracy but they are subordinate to the self-same bureaucracy. They include: chief archivist; commissioner for children; health and disability commissioner; human rights commissioner; police complaints commissioner; privacy commissioner; retirement commissioner.
Is the independence of these commissioners compromised? The short answer is that even if it is not currently, it can be. In any case, the effectiveness of independent commissioners can be compromised by under-supplying resources needed for the job, with no appeal for better funding other than to the agency they are monitoring, or by making poor quality appointments. Too often MPs have compliantly agreed to demands of the bureaucracy to reduce the independence and powers of these commissioners. The case is always made in terms of bureaucratic rationalisation – accountability is never mentioned. The logic of accountability is that such positions should become further offices of parliament. The bureaucracy will fight tooth and nail to prevent the transfer of the commissioners who are under its control. Are you surprised?
The 1989 Public Finance Act set out different responsibilities for ministers and the operational agencies which report to them. The idea was that ministers were responsible only for the directions they gave to their departments, while the departments were responsible only for their operational implementation of those directions. But the distinction, still in the Public Service Act 2020, has never really worked. Neither parliament nor the public pay much attention to it. The de jure distinction of responsibilities and the de facto practice of ambiguity enables the bureaucracy to escape the rigorous scrutiny that democracy demands of it.
Do not assume that accountability will always be deliberately thwarted. Sometimes who is responsible is unclear. This is particularly true in large, diverse departments, so that even a chief executive may not know what is going on. Hence the need for smaller more coherent government agencies in which the chief executive can know and be effectively responsible for it. Centralisation is a mechanism for avoiding accountability to the public.
A key element of the New Zealand system of accountability is the Official Information Act. The OIA creates a public right to access information. It states that “information shall be made available unless there is good reason for withholding it”.
However, since the effect of the act is to increase the accountability of the government – sunlight is the best disinfectant – there has often been a reluctance to release information. Journalists are a central part of the accountability system, using the OIA as an integral part of their responsibility. A 2022 review by the Ombudsman (who is also the parliamentary commissioner for information) found multiple examples of public-sector media teams breaching the section of the law which required reasons. Media teams are failing to give journalists a reason when they refuse to provide information or inform them of their right to complain to the Ombudsman.
The incoming Ardern-Hipkins government promised a review of the OIA in its 2017 election manifesto. In July 2020 the justice minister announced that the OIA would be reviewed. Six months later, his replacement minister said that the review would be delayed until “later in this parliamentary term”. After six years in office the government had not published a review.
A four-year term strengthens the (elected) dictatorship. A liberal democracy requires that any strengthening be offset by the dictator becoming more accountable. If parliament proposes a referendum extending the parliamentary term, it needs first to strengthen its accountability mechanisms. An inability to do so would demonstrate that parliament’s ability to hold the executive to account is too weak to justify a four-year term.
In Open Seas: How the New Zealand Labour Government Went Wrong: 2017-2023 by Brian Easton ($45, Kea Point) is available to purchase from Unity Books.
