Mai Chen

Public and employment law specialist Mai Chen on current events

Mai Chen: Alarming signs of state incompetence

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Reports into Pike River tragedy and GCSB issues have highlighted lack of corporate hygiene and performance.

Both Labour and John Key's National must share blame for the state of our public service. Photo / Mark Mitchell
Both Labour and John Key's National must share blame for the state of our public service. Photo / Mark Mitchell

What other breaches are occurring that we never hear about? There has been a seemingly never-ending parade of public sector failures lately. So much so that we might ask whether we are seeing public sector performance and competence at an all-time low, and if so why?

The Shanks-Meares report on the Pike River tragedy, the Kitteridge report on the Government Communications Security Bureau (GCSB) and the wrongful disclosure of private information by the Earthquake Commission (EQC) are just a few examples. This is not a party political issue - both Labour and National must bear some share of the blame for the state of our public service.

What worries me is that, leaving aside the constraints of funding and the legal and policy frameworks officials had to work within, these reports describe a basic lack of corporate hygiene and competence and a low performance, low quality culture. Yet government officials have special powers and responsibilities given to them by law over the lives of ordinary New Zealanders.

Thus, they should be performing to higher standards than the rest of us, including the private sector, not a lower standard.

If I had had a son or a husband who died at Pike River I would have been very angry at the findings that the Labour Department's role as health and safety regulator leading up to the deadly explosion was "dysfunctional and ineffectual" and that there "were actions or (more often) inactions on the part of officials in both (labour and economic development departments) that may have contributed to the tragedy". I would have been even angrier at the conclusion that the Economic Development Ministry's "light-handed and perfunctory" discharge of its assessment and monitoring of Pike's mining permit were primarily systemic and no employment action was recommended against any individual.

The Kitteridge report on the GCSB makes for equally alarming reading due to the basic things the department did not do to ensure they were acting legally given their highly intrusive powers. Kitteridge's recommendations include bare basics such as that "an exercise be undertaken to assess relevant laws relevant to the bureau and to ensure that current practice is consistent with the law," and that "legal compliance be included in GCSB's risk framework". The best Kitteridge could say in her executive summary is that the GCSB staff "consistently expressed their commitment to the rule of law". So the spirit was willing, but the flesh was weak.

Would GCSB even have uncovered its unlawful behaviour if the court had not found that they had broken the law by illegally spying on Kim Dotcom? Similarly, it took 29 deaths before we had an inquiry into the regulation of mining in New Zealand. It took a wrongful disclosure of the private information of thousands of people by the EQC to raise questions about the fairness of its methodology concerning claims payments.

Any quality audit, finding errors of this kind, would conjecture that they are just the tip of the iceberg and as the government is 40 per cent of the economy, that should worry the rest of us who pay for that government. What other breaches are occurring that we never hear about?

Beefing up the powers and resources of those who watch the officials is a good start. The proposed changes and increased resourcing for the office of the Inspector-General of Intelligence and Security are sensible and should make that office more effective in policing our intelligence agencies. More funding to the ombudsmen is also a step in the right direction to deal with complaints of maladministration and wrongful withholding of official information. But good culture comes from within and cannot solely be achieved by imposition by an external watchdog.

Nor is it just a question of allocating more money to the public service, although morale seems to be very low with the funding cuts. Funding is not a silver bullet - it does not create a quality culture and nor does it create public servants who understand they are exercising special powers and are committed to compliance and who take pride in doing a great job for New Zealand. Where is the evidence of the free and frank advice officials are supposed to be delivering to ministers in the review reports on Pike River or GCSB?

I have worked with many committed public servants in my 26 years as a public lawyer. While I think calls for inquiries into everything undermines the value of those public law tools, I am really starting to think we need an inquiry into the quality and competence of our public service.


Mai Chen is a partner in Chen Palmer and Adjunct Professor at the University of Auckland Business School.

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- NZ Herald

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