Chris Barton: Telco commissioner cock-up

Dr Stephen Gale, the newly appointed telecommunications commissioner. Photo / Supplied

There was some irony last month when newly appointed telecommunications commissioner Dr Stephen Gale performed his first regulatory act. Ironic because he was doing something not in his job description - at least not in the job description as it was advertised in March, which was five years out of date.

Gale was deciding who was liable, and who wasn't, for the Telecommunications Development Levy established in the 2011 amendments to our Telecommunication Act. Yet if he'd been doing what his advertised job description required, he would have been determining the now defunct Telecommunications Service Obligations as set out in the 2006 amendments.

That's not all. He would have also been overseeing Telecom's operational separation as set in the 2006 regulations. But as everyone knows we have moved on from those days and the regulator is now dealing with Telecom's structural separation into two companies - Telecom and Chorus.

These are not minor typos in a job advertisement, but actually detailed clauses in a job description that runs to 10 pages, (See here) prepared by the Ministry of Economic Development. This is one of the most highly paid regulatory jobs in the country, attracting a salary of $370,000 and yet with a job description that highlights the wrong legislation.

You have to ask who made such a monumental cock-up? And why when the fundamental error was pointed out in the press twice - here and here - did the same bungling officials who made the error not correct the advertisement?

Then there's a question of fairness. Were all 44 applicants made aware of the cock-up? Which raises a bigger question: Does such carelessness taint the whole decision making process, thereby rendering Gale's appointment illegal?

Labour MP Clare Curran certainly believes so, and has asked both the auditor general and the ombudsman to investigate. "When an important decision such as this is made by government, it has a statutory responsibility to ensure it has followed correct process and provided applicants with appropriate information," says Curran. That prompted blogger David Farrar to say he thought Curran's complaint was close to being vexatious - Farrar reasoning that Curran is simply miffed because the incumbent commissioner, Ross Patterson, didn't get re-appointed.

We all know there is always a political element to such appointments. Patterson himself admitted his own appointment was a political decision. "My skill set was what the minister at the time wanted for the role, so my predecessor wasn't reappointed. My skill set isn't required for the current role - that's fine," he told the Herald last month. But it's also important such a selection process is seen to be fair and, in the wider interests of New Zealand, a process that seeks the best possible candidate.

At the heart of the matter is public law, beginning with the major error in the first public document - the job description scoping the role for a statutory regulator. It's on the basis of that document that candidates put their hat in the ring for selection by an independent panel of advisors.

That in turn leads to a statutory decision by the Communications Minister, in this case Amy Adams, to make the appointment which must comply with the Telecommunications Act, the Crown Entity Act and the Commerce Act. In her press release the minister describes the role as "a vital one to the success of the industry and it was important we found the best candidate".

But if the job description was so fundamentally wrong, citing legislation five years out of date, how can we be sure the best person has been found? The job description is asking for a set of skills different to those that are actually required - an underlying error that flows through to, and undermines, the whole approach by the independent panel. That, in turn, tarnishes the minister's decision and taints it with illegality according to public law experts I've spoken to.

As they point out, the government has a statutory responsibility to ensure such decisions are made following correct process and providing applicants with the appropriate information.

The error is particularly embarrassing for the government because it went looking for applicants beyond the incumbent specifically because of the 2011 changes it had made to the Telecommunications Act. Yet it advertised for someone with exactly the skills Patterson had - five years experience, mostly administering the 2006 amendments.

It can be argued that the error was obvious and readers of the job application - the applicants, the Ministry of Economic Development and the independent panel - would have known of the real situation. But while local applicants such as Gale, who were familiar with the industry and the actual position, would not have been disadvantaged, the same might not be true for applicants from overseas without the local knowledge.

As Curran points out the importance of an independent watchdog - independent from government and vested interests - is vital the proper functioning of the law. It's also vital to ensure taxpayer's money - the $1.35 billion investment in ultrafast broadband - is used wisely to deliver core government policy.

Advertising for applicants to regulate superseded legislation is such a fundamental error, it's hard not to see that some sort of legal breach of process has occurred. Even more perplexing is that when the error was picked up in the press, it was not publicly corrected. Neither did Amy Adams address the concerns when she announced the appointment.

You have to wonder about the capabilities of the people running the show. If the Ministry of Economic Development and the Minster's office can't even get an advertisement right, what hope is there for the actual enacting of the legislation?

One doesn't imagine any investigation into this process would result in Gale's appointment being overturned, but it might bring to light just what on earth was going on behind the scenes of this shoddy process. And it would certainly remind officials that they are accountable for their actions and such gross carelessness is unacceptable.