<&>Wellington Corpus of Spoken New Zealand English Version One <&>Copyright 1998 School of Linguistics & Applied Language Studies <&>Victoria University of Wellington <&>side one <&>4:55 first of all the context in which we are <,> looking at the topic <,> as i said <,> i quite unashamedly <,> i think i can take credit for a book which er you might find of some interest er edited by boffman martin caller and walsh called er <,> reshaping the state <,> new zealand's bureaucratic revolution which is <,> an attempt <,,> written just on the election to capture <,> what had been happening in the reforms <,> changes to the public service after the budget last <,> or the years of the labour government <,,> and i think we quite rightly chose the word revolution for that but of course the earthquakes and tremors have not yet <,> stopped and if we thought we were going into a <.>p period of <,> peace in the structure of government but it's not exactly the case <,> more specifically in legislative terms <,> i think we're talking about the state owned enterprises act of nineteen eighty six the state sector act of <,> nineteen eighty eight <,> and the public finances act <,> of nineteen eighty nine are the three <.>k key pieces of <,> legislation in this area <,,> but of course there have been vast changes in the <&>6:00 STRUCture <,> the machinery of government as we call it <,> over these years too <,> bodies that existed <,> five years ago no longer exist <,,> new agencies proliferate and that's not unimportant as i'll say right at the end for any of you who are <,> perhaps going into practice in administrative law in the next few years <,,> why all this happened is a highly interesting topic about which i spend most of my life <,> thinking but it's not appropriate to <,> talk about that today nor about the process by which these changes have taken place so <,> all i think i can do is to list a few characteristics of <,> the new <,> bureaucracy the new public service <,,> the first <,> is there has been a shift from <,> bureaucracy <,,> and i quote the sort of words which are commonly used results oriented <,> entrepreneurial <,> can do <,> public service <,,><&>3 and i think we must note in passing that bureaucracy which we <,> most of us i think <,> except those who live in the zoo <,> <&>7:00 tend to regard it as a pejorative word <,> a put down isn't it <,> we talk about bureaucracy and about red tape <,,> er bumbling people on the counters of various public agencies <,> the labour report involved a neutral <,> description of <,> the way in which particular kinds of organisations <,> function <,,> the latest shift of mood and i've just been in reading some of the pronouncements <,> certainly of er sir robin cooke <,> and of word thomas and others <,> who continue to refer to administrators <,> that's an absolute <.>no no word now for bureaucracy <,> that's old style <,> we used to administer now we manage <,,> and that's a <,> is not an unserious point that i <,> make it is interesting that sir robin <,> and others continue to talk about the administrator in their <,> decisions and contributions to the discussion <,,> the second point i think the second characteristic is <,> the removal of the <.>las over the last few years <,> to a greater or lesser extent <,> of what i shall call the four <&>8:00 pillars <,> which supported the structure of <,> government <,> executive government <,> since the public service act of nineteen twelve <,,> and they were that we had <,> regarding the unified <,> apolitical <,> anonymous <,> career <,> public servants <,,> it's a matter of a unified <,> apolitical <,> anonymous <,> career service <,,> now i'll <,> make some <,> assertions <,> rather than points for argument <,> word <,> now we've got what we often say are forty odd <,> different businesses <,,> rather than a unified public service <,> forty odd different businesses <,,><&>3 the chief executive of each <,> agency is now the employer with all the <,> rights that go with employers <,> rather than <,> the centralised control of the state services commission <,> which used to be the employer for the whole <,> of the public service <,,><&>3 i said we had an <&>9:00 apolitical public service and indeed we had a uniquely apolitical public service and i'm sure <.>y that sir geoffrey palmer and i would debate the merits of this <,> some length um <,> uniquely as i say it's apolitical <,> almost <,> i can think of no other country <,> certainly in our kind of jurisdiction where ministers did not have some say <,> who is to be their principle advisors <,,> in new zealand the appointment was made <,> by the state services commission <,> and indeed it was an offence for ministers <,> to intervene in that process of appointment <,,> but now under the state sector act we have a process <,> whereby ministers not only <,> quite rightly in my view have a say in the kind of jobs that they want done <,> but also have the right <,> to appoint <,> what's called a NAMED person <,> by order in council <,> if in fact they don't agree with the state service commission's recommendation and some of you <,> may recall the fuss over the <&>10:00 appointment of mister hendersley <,> to <,> the defence department last year although he's now been appointed <,> in the last week <,> the <,> national party have said that they will in fact change that legislation and go back to apolitical appointments so we'll have to watch and wait and see <,> thirdly it was an anonymous public service <,,> a sort of unwritten <,> contract in events was that <,> ministers took the credit or the blame <,,> and public servants <,> were those grey figures <,> that SOME might suggest <,> were behind the curtain pulling the strings for the <,> public figures or ministers but you've all watched <,> sir humphrey in action no doubt <,> laughter <.>y i don't know how we taught political science before we <,> had sir humphrey <,> er to help us with this <,> whole question of word and so forth <,,><&>6 i think <.>the i'll also mention the career of public servants and i just simply make the point that <,> there was an expectation that people who <,> <&>11:00 joined the public service as a cadet at the age of sixteen or in the last twenty years as a university graduate <,> all had the bat on into the future <,> being a permanent head if <,> they behaved themselves and had ability and so on and all could <,> clamber up that <,> ladder and become a permanent head <,,> with a few years in the job until they retire with superannuation at the age of sixty again is something of the past and not the future <,,> and that was based on a view that there were particular <,> expertise and skills <,,><&>3 that were learned and applied in government <,,><&>3 and a certain suspicion of the idea that there was generic management skills that could somehow <,> interchangeably go from the private sector <,> to the public sector and back <,,> the two particular things <,> which <,> underpin that view i think <,> which are relevant to our subject <,> were the relationships between <,> civil servants and ministers <,,><&>3 and i think a knowledge of <&>12:00 the forms and processes of er <,> parliament <,> and the law making process <,> and that again is worth a lecture in itself but i really <,> can't do that <,> what we've got now we often say is managerialism <,,><&>3 the essence of that being <,> an emulation of <,> the precepts and practices of private sector management <,> applied <,> in the public sector <,,><&>3 something of a cult of personality about <,> chief executives <,> a far cry from the <,> grey figures of the past <,,> appointment on contract <,> rather than <,> the concept of career <,> a shortterm <,> contract <,,> you know if you're looking at the <,> prescription for the <,> chief er the <,> director general of health <,> very interesting bit at the end where it says <,> the successful applicant will have to show ability that he can move on <,> to even higher things <,> after being the director general of health there is no expectation he's going to be there for a very <&>13:00 long time <,> he's obviously going to be a change agent to put into place any government reforms <,> performance pay <,> instead of a <,> scale <,,> an important point i think and <,> i speak as you'll obviously gather as an interpreter of these matters a loss of institutional memory <,,> again it's not unimportant in particular cases <,> involving <,> judicial review <,,> but over all <,> a view that <,> a job in <,> officialdom in the bureaucracy <,> is not all that different from a job <,> anywhere else <,,><&>4 and the trade off all the time between greater flexibility and efficiency <,,> and what is sometimes called <,> the public service ethic <,,> people <,> go on about <,> service to community and so on but i think for our purposes <,> an important part of that <.>eth ethic <,,> is an approach that <&>14:00 looks at <,> people as <,> citizens <,> rather than as customers <,,> that is interested in compliant <,> rather than <,,> <.>pro active <,> entrepreneurial behaviour <,,><&>3 and a <,,> recognition i almost said WORship of RULES <,,> back to bureaucracy and <,> red tape and so on with a preoccupation with RULES <,> rather than <,> as i said earlier <,> the can do kind of public service <,> all <,> entrepreneurs <,,><&>5 so <,> very quick <,> thumbnail sketch of the present environment but let me now <,> look at <,> that in a different way and lead us into <,> judicial review <,,> this seems to me <,> from where i sit that this is only one element in a whole barrage of <,> mechanisms instruments <,,> designed to <,> provide checks on <&>15:00 the executive <,,><&>3 now i think there are two broad <,> ways you can categorise those checks <,,> one is internal <,,><&>4 by that i mean <,> the public service ethic <,,> a sense of professionalism <,,><&>3 and indeed codes of ethics and the state sector act <,> invites the state services commission which it's done <,> to issue a <,> a code of conduct <,,><&>3 and indeed some <,> essays that i've written for them <,> called a guide to administrative behaviour about <,> public there are further <,> attempts to provide <,> provide guidance as to how a bureaucracy should <,> act given this political environment <,,><&>3 the EXternal <,> checks on the bureaucracy <,,><&>3 are <,,> <&>16:00 several <,> first of all there's the political process itself <,,> i include with that in that such <,> pretty basic things as writing your m ps <,> parliamentary questions <,,><&>3 and in particular that rather oldfashioned but in my view fundamental doctrine of ministerial responsibility <,,> and a personal comment since i've got to <,> check or <,> test <,> innovations in government <,> the question i always ask myself is does it make <,> us more able to hold ministers accountable <,> than whatever was there before <,,> i'm sure you're familiar from <,> constitutional law but which <,> i know has different perspective on this with <,> the classic statement which ends that <,> the act of every <,> civil servant <,> is in fact <,> the act of <,> his or her minister <,> to paraphrase it <,,> that's a big subject on itself but i simply suggest to you that <,> you might explore if <&>17:00 you're interested in this area <,> the way in which the bureaucracy has increasingly been decoupled <,> from ministers <,,><&>3 particularly in <,> the public finance act <,,> which talks and again i'll just try and give you a flavour of the language which means <,> output or activities which are the responsibility of <,> the department chief executive <,> and outcomes which are defined as <,> the impact on the community <,,> of the government's activities which clearly <.>th <,,> the <,> responsibility of ministers <,,><&>3 the aim of the reforms is in fact to have greater accountability <,,><&>3 by <,> clarifying the responsibility by <,> making people <,> within this <,> grey mass that used to be the bureaucracy <,> stand up and be counted and publicly held accountable <,,> word yes you <,> you can actually argue <,,> we haven't actually doubled <&>18:00 the accountability we've rather <,> halved it or blurred it <,> because noone's quite sure now whether you should hold the minister <,> or <,> the department accountable for <,> for their actions <,,><&>3 so the political process in all sorts of ways with which you're familiar <,> the media are very important in this <,> one check on the bureaucracy <,> the official information act <,,> the ombudsman act <,,> the role of the controller and auditor general <,,><&>3 the bill of rights act <,,> and i don't know what <,> may be heard but i do hear from within the bureaucracy it is starting to have an impact upon drafting of legislation <,> people are looking <,> harder at their <,> drafting and no doubt mister aisles is also <,> as to whether legislation that's being contemplated <,> can in fact <,> have a certificate from the attorney general <,,> so finally and i'm sure there are others in this <,> judicial review is a role of the courts <,,> which <,> i think from my perspective is a last <&>19:00 resort <,,> if for no other reason than it's very expensive <,> remedy whereas <,> the official information act <,> writing a letter to the <,> minister <,> um <,> getting mister holmes to take up the cudgels on your behalf <,> all are much cheaper although there may be other costs to face to <,> tangle with mister holmes <,,><&>3 as i said like <,> mister justice thomas <,> i think judicial review is at the heart of administrative law <,,> and i simply just <,> say to you that <,> the three <,> documents of the bush lawyer or <,> layperson in this area i find very useful <,> are the paper called administrative law and the rule of law <,> by ted thomas q c <,> which he gave to the christchurch triennial law <,> conference <&>19:47