The offices of the Ombudsman and the Controller and Auditor-General are two important independent statutory agencies charged with protecting aspects of the public interest against excessive or unnecessarily coercive actions by the government and its departments. 

The Ombudsman’s office has the power to investigate approximately 4,000 public sector agencies across New Zealand. It does not have executive authority, but Ombudsman’s recommendations are normally taken very seriously by the government and rarely ignored.  

The Controller and Auditor-General’s role is two-fold – responsibility for the annual financial audit of about 3,500 public bodies, including schools and other public bodies, and ensuring that government funding is both spent for the purposes for which it was appropriated, and in the best possible way. Like the Ombudsman, the Controller and Auditor-General is an officer of Parliament, meaning they report directly to Parliament, rather than the government of the day. 

This week, both offices released separate highly critical reports on unrelated aspects of the government’s response to the pandemic. 

The Ombudsman’s report on the way the controversial MIQ system operated was extremely scathing. He said, “I acknowledge that another type of system, which provided for consideration of individual circumstances would have been more complex, time-consuming, and costly to implement … But I do not consider these challenges provided sufficient rationale for MBIE not to advise and recommend to decision-makers options for such a system – the impact on people was too severe. A fundamental human right was being limited and people’s lives were being significantly impacted.” 

Following an investigation into the initial all-of-government response to the pandemic in 2020, the Controller and Auditor-General concluded that “no system or plan could have fully prepared New Zealand for Covid19’s impact” but that “there were shortcomings in our national security, emergency management, and health systems that could have affected the effectiveness and efficiency of the response.” The report concluded that the need for action to resolve these issues was urgent and should not await the findings of the Royal Commission due to report in 2024. 

These are substantial reports which deserve a response from the government. But, so far, there has been no response at all from the government to the Auditor-General’s report. 

MBIE’s response to the Ombudsman’s inquiry was grudging at best. While it “welcomed” the report, it quickly defended the MIQ system because it enabled “almost 230,000 travellers to safely return home and cared for over 5,000 community cases. It was responsible for stopping more than 4,600 cases of COVID-19 at the border.” Later in its statement it did offer a passing acknowledgement that “the allocation system was not perfect and that some people were unable to secure a place in MIQ whilst in extremely challenging circumstances”. 

However, MBIE simply ignored the Ombudsman’s conclusion that its actions had “failed New Zealanders” and his recommendation that it should apologise to those who had been adversely and unfairly affected. In media interviews and in Parliament earlier this week the Prime Minister also ignored the apology calls, and reiterated instead that while not perfect, MIQ had played a valuable role in securing the country’s borders from Covid19. 

Two important issues arise from these responses, or more correctly, non-responses. First, the cavalier and dismissive way both reports have been treated goes against the convention of how recommendations from these two independent Officers of Parliament are usually treated. Successive governments have placed much weight on Ombudsman’s and Auditor-General findings, even if they have been politically inconvenient, and have worked to address the points of concern. However, the implicitly defiant tone of the response from both the Prime Minister and MBIE to the Ombudsman’s report suggest that may now be changing, and the government may be feeling less inclined to heed what the Ombudsman has to say. 

Second, the public will be the loser from any move to downgrade the weight attached to reports from the Ombudsman and the Controller and Auditor-General. While, like governments, the Ombudsman, and the Controller and Auditor-General will not always get it right, they are an important independent public safeguard against a government’s coercive powers being used excessively and public funds being spent inappropriately. Therefore, any attempts to downgrade their significance, or the worth of their findings, should be strongly resisted. 

As it stands, New Zealanders do not have too many protections against the excesses of government. Our Bill of Rights is not entrenched, and its provisions can be easily bypassed by a simple majority in Parliament. The Courts can issue declaratory judgements about government actions, but they have no authority to “strike down” legislation passed by Parliament. The offices of the Ombudsman and the Controller and Auditor-General are therefore at the forefront of the safeguards available to individual citizens seeking redress, and traditionally been strong performers in that regard. That system has worked to date because successive governments have been responsive to their findings. For the sake of our democracy, that needs to continue, which is why the government’s off-hand reactions this week to their latest reports are that much more worrying. One hopes it is just a case of pre-Christmas oversight but fears otherwise. 

With Parliament having wound up for the year, it is now time to look ahead to the coming summer break. So, my best wishes to everyone for a happy and peaceful Christmas and New Year.    

 

 

When Parliament rises for the year at the end of next week, MPs' attention will shift over the summer break to the election next year, and what it might mean for them personally. Some will decide the time is ripe for them to move on, as did Green MP Jan Logie this week, and announce their retirements early in the year.  

The Prime Minister's focus will shift to the future composition of her Cabinet, with a significant reshuffle already promised for around late January. She will be looking to a team that both maximises the talent in her Caucus and presents a reinvigorated and positive face to voters for what the polls show will be an extremely difficult election contest for Labour. 

Refreshing Cabinets is a challenging task for any Prime Minister. Leaving aside the question of talent, the exercise is always fraught, given the ambitions and personalities involved. Over the years various Prime Ministers have attempted to refresh their Cabinets for election year, but few have done so successfully. 

When he became Prime Minister in early 1972 Jack Marshall took the axe to the long-serving Holyoake Cabinet he inherited, bringing in four new Ministers to replace those who had indicated they would be retiring at that year's election. But that did not stop his government losing to Norman Kirk's Labour Party in a landslide a few months later. 

At the start of 1990, one of Labour’s more dismal years, Prime Minister Geoffrey Palmer moved aside six retiring Ministers and brought in some of Labour's better backbench performers to replace them. Some of the former Ministers remained openly disgruntled about their demotion throughout the next few months until Labour's landslide defeat.  

Following the collapse of the National/New Zealand First coalition government in 1998 Prime Minister Jenny Shipley sought to reshape and refresh her new minority government through one of the boldest pre-election reshuffles of recent times. But despite giving her government a new face, it was ultimately to no avail. Helen Clark and Labour still won the next election by a handy margin. 

Prime Minister John Key took a more cautious approach. While he regularly reshuffled his Cabinet at the start of election year, he never demoted more than one or two Ministers. This both minimised the scope for disgruntlement, and always left the door slightly ajar for the ambitious. 

The common point arising from all these different approaches of the last fifty years or so is that pre-election Cabinet reshuffles have virtually no impact on a government's political fortunes. The record strongly suggests that any Prime Minister who believes a government's flagging political fortunes can be revived by an election year reshuffle is dreaming. 

But that is not to say there is no point in reshuffling the current Cabinet. Some Ministers are clearly overworked, others underutilised, some may have intimated privately to the Prime Minister that they will not be seeking re-election, while others have shown themselves simply not up to the task. For these reasons, a reshuffle makes good sense, but the Prime Minister's task will not be easy. 

While the Labour Caucus normally selects Ministers and the Prime Minister allocates portfolios, there is more scope for a Labour Prime Minister to act unilaterally when it comes to reshuffles. But even so, Jacinda Ardern will not have an entirely free hand, the regard in which she is held by the Caucus notwithstanding. 

For example, there has been much speculation about the futures of Ministers Nanaia Mahuta and Willie Jackson. Mahuta’s credibility has been severely damaged by the Three Waters saga, but her value arises from being Labour’s bridge to Tainui and the Kingitanga. Jackson’s comments on the TVNZ/RNZ merger have been consistently belligerent and aggressive, earning a rebuke from the Prime Minister. 

However, beyond that, and most importantly, both are senior members of Labour’s highly influential Māori Caucus – the so-called First Fifteen – which makes it almost impossible for the Prime Minister to act against them. That adds to her challenges regarding the reshuffle – it will not look like much of a change of guard if a same/old situation remains, for whatever reason. 

Given history’s lesson that election year reshuffles have little actual impact on the political fortunes of the government of the day, the Prime Minister cannot expect her forthcoming reshuffle to deal her an election-winning hand. The best she can hope for is that her reshuffle irons out some of the current workload and performance imbalances and provides some promotion opportunities for some of her newer MPs. At the same time, she will need to be attuned to the feelings of those backbenchers passed over in the reshuffle now having to accept the reality their opportunities to go further have passed by. 

All these factors add to the challenges confronting Jacinda Ardern as she ponders the future shape of her Cabinet. But no matter how the reshuffle is finalised, then presented to the public, it will still be essentially the same government as before. 

And it will still be that government and its performance that voters will judge at election time, no matter who is in the Cabinet at that point.

 

 

 

 

Last week, as Parliament sat under Extended Hours to pass the Committee of the Whole stage of the controversial Water Services Entities Bill, the Greens moved an amendment requiring that the support of a minimum of 60% of a future Parliament would be required for any proposal to privatise water entities or assets to succeed. With the support of Labour, the amendment was passed. 

No-one seemed too excited at the time, with Leader of the House Hipkins admitting later that he had not even read the amendment fully before committing Labour’s support to it. As no political party is currently proposing or has previously proposed the privatisation of water assets, the Greens’ amendment seemed arcane and not worth worrying about. 

Things changed over the next couple of days, however, with the country’s constitutional lawyers and academics quickly shouting “constitutional outrage” in the loudest terms. The outrage was directed not so much at the issue of water privatisation but at the fact that the long-standing principle, arising from the supremacy of Parliament, that in general one Parliament cannot bind its successor was being breached. 

There are exceptions – principally around changes to electoral and constitutional law – where provisions are “entrenched” and unable to be changed by a future Parliament without a 75% majority in favour. Water privatisation was not seen to fit into these categories and the argument went that by extending the “entrenchment’ notion this way, even at the lower threshold of 60%, Parliament was beginning to walk down a dangerous path. 

By the end of the weekend, even the Prime Minister was describing the entrenchment aspect as “quirky” and was promising the Cabinet would have another look at it. That was generally interpreted as an indication the government would seek to overturn the amendment when Parliament next met. 

But things are never that simple. After Cabinet, the Prime Minister announced that the matter was being referred to Parliament’s Business Committee to see whether agreement on the amendment’s future could be reached. Now the Business Committee, which meets weekly and comprises all parties, determines the order of business in the House for the coming week. It does not deal with, let alone, resolve policy issues. Yet, here was the Business Committee, which operates on near-unanimity amongst its members, being asked – quite improperly – to decide a policy issue on behalf of the government. I was a member of the Business Committee for more than twenty years and never saw it used in this way. 

The government’s game-plan was immediately clear. It knew National and ACT disagreed with the Greens’ amendment, so there was no prospect of agreement, let alone anything approaching near-unanimity. That would give Labour an excuse to withdraw its support, framing the argument that they had no option because of National and ACT. At the same time, they tried to paint the picture that by opposing the amendment National and ACT were effectively not ruling out water privatisation in the future. 

According to Labour’s framing, this laid the fault for what had happened firmly at National’s and ACT’s doors. Under this narrative, it was nothing to do with the Greens who promoted it, nobly trying to save water assets from rapacious National and ACT. Nor was it anything to do Labour that blindly and unthinkingly supported the Greens’ amendment. The strategy is as devious as it is deceitful. And its resolution will consequently be more drawn out, meaning the situation will linger longer in the public mind. 

It would have much easier – and quicker – had the Prime Minister simply admitted on Monday morning that the government had made a mistake in supporting the Greens’ amendment, so would be recommitting it when Parliament next met and voting against it. That would have been the end of the matter. The issue would have been over, almost before it started, and Labour would have got some credit for quickly realising the problem and moving swiftly to rectify it.  

But by trying to drag things out so that they could try and pin the blame for their original ineptitude on National, rather than admit their own error, all Labour did was prove correct Elton John’s lyrics, “sorry seems to be the hardest word”, especially for politicians. In so doing they have prolonged a controversial issue, not shut it down, and raised even more questions about how on earth they got themselves into this situation in the first place. Were they outsmarted by the Greens, or was Hipkins asleep at the wheel? The longer questions like this linger, the messier it looks for Labour, not the sort of message to be sending as election year approaches. 

Of course, the current government are not the first government to find the prospect of saying sorry causes them to choke. Politicians of all hues and times have been similarly afflicted over the years. All range of verbal gymnastics have been employed to get politicians off the hook of having to say sorry. And, in a funny sort of way, people always expect that to be the case. 

The one exception to this in recent times was Sir John Key, who was adapt at saying sorry, and quickly moving on to the next issue, leaving people wondering what the first problem was all about. But his critics said this just showed him as glib and not taking issues sufficiently seriously. 

One thing is for sure, though, Key never got himself into the tangle Labour’s obfuscation over the last week has left them in today.