2 Prior to a General Election

2.1 Significant Decision Making by the Government before an Election

Key points

• The government has the right to govern until the election. The caretaker convention (see 3.1) does not apply during the pre-election period.
• Governments have, however, chosen to restrict their actions to some extent at this time.
• For further guidance, see Cabinet Circular CO (08)(3) Government decisions and actions in the pre-election period.

In the period immediately before a general election, the government is not bound by the caretaker convention (see 3.1) unless the election has resulted from the government losing the confidence of the House. Successive governments, however, have chosen to restrict their actions to some extent at this time, in recognition of the fact that an election, and therefore potentially a change of government, is imminent. For example, significant appointments have been deferred, and some otherwise unexceptionable government advertising has been considered inappropriate during the election campaign, due to the heightened risk of perception that public funds are being used to finance publicity for party political purposes (see also 2.2).

Ministers and Cabinet are likely to have a reduced capacity for decision-making in the pre- election period, as Ministers may be occupied with the election campaign. Ministers' offices and agencies must therefore ensure that significant matters requiring ministerial attention are dealt with as far in advance of the election date as possible. Forward planning is essential.

See Cabinet Circular Government decisions and actions in the pre-election period CO (08) (3), the Cabinet Manual, and other material prepared by Cabinet Office prior to the 2008 election.

The Secretary of the Cabinet is available to advise on Cabinet decision-making processes during the election period.

2.2 Communications

Media Comment

Key point

• Agencies and Ministers' offices need protocols to ensure that media enquiries are handled promptly, and by the person most appropriately placed to do so.

An election year increases media interest in the activities of the Government and its agencies. There should be a clear understanding how to identify whether matters are primarily political or operational, and whether they are to be handled by the Minister or by the agency.

Those who are authorised to speak on behalf of an agency in the period before, during and after the election need to understand the sensitivity of the environment in which they are operating. Good protocols with Ministers' offices will help to ensure that enquiries from the media are handled promptly, and by the person most appropriately placed to do so.

Media releases by State Services agencies during the election period must be drafted with a critical appreciation of the scrutiny given at such time to the activities of the Government, its agencies and their employees.

Programme Launches

Key point

• Agencies support Ministers who decide to launch initiatives during an election period, but care is needed to avoid being associated with the political aspects of any such event.

During an election period, the launch of a new programme or initiative may take on a 'party political' character that would not be evident at other times. State servants should support Ministers as usual, but must take care to avoid association with the political aspects of any such event, or with the preparation of supporting material which has a party political character.

Advertising and publicity campaigns

Key points

• Agencies are responsible for promoting awareness of government policies and services but must avoid content which is party political in character. There are long-standing principles that should be followed, for instance, in the Guidelines for Government Advertising
• Advertising or communications by State Services agencies which could be reasonably regarded as encouraging voters to vote, or not vote, in a particular way are never acceptable. In addition, election advertising by those agencies is prohibited under the Electoral Finance Act 2007
• The Electoral Finance Act 2007 provides a definition of election advertising. Departments and other agencies should take a conservative approach, in order to avoid perceptions of public funds being used in ways that are contrary to the legislation.

Guidelines for Government Advertising

• Guidelines for Government Advertising are contained in the Cabinet Manual (www.cabinetmanual.cabinetoffice.govt.nz/files/cabinet-manual-2008-appendix-b.pdf). They define government advertising as "any process for which payment is made from public funds for the purpose of publicising any policy, product, service, or activity provided at public expense by the government". The guidelines require that government advertising should be presented in a manner which is:
• Accurate, factual and truthful - Factual information should be outlined clearly and accurately. Comment on and analysis of that information, to amplify its meaning, should be indicated as such.
• Fair, honest and impartial - The material should be presented in unbiased and objective language, and in a manner free from partisan promotion of government policy and political argument.
• Lawful and proper - The material should comply with the law.
• must comply with this long-standing provision regarding advertising and communications campaigns at all times; not simply during an election year.

It is never acceptable for agencies to encourage electors to vote (or not vote) for specified parties, policies or candidates. All promotions must be managed in a way which avoids such perceptions arising.

Publicity and advertising are legitimate forms of government and parliamentary spending: communication campaigns that inform people of their rights and obligations do not need to stop. In the run-up to an election, however, agencies should particularly consider whether any of their communication campaigns or advertising could be perceived as 'party political', even if they might be unexceptionable at other times. For instance, material publicising programmes that do not come into effect for some time may be particularly sensitive.

Electoral Finance Act 2007

Under s.67(1) of the Electoral Finance Act 2007, the following individuals and agencies are prohibited from publishing, causing to be published or permitting to be published any election advertisement:

• a chief executive (however described) of a department of State or a Crown entity;
• a department of State;
• a Crown entity;
• a State enterprise, within the meaning of s.2 of the SOE Act 1986 or a Crown-owned company; and
• any other instrument of the Crown.

An "election advertisement" is defined in section 5 (1)(a) of the Act as any form of words or graphics, or both, that can reasonably be regarded as encouraging or persuading voters to vote (or not to vote):

• for one or more specified parties or candidates or for any combination of such parties and candidates; and/or
• for a type of party or for a type of candidate that is described or indicated by reference to views, positions or policies that are or are not held, taken or pursued (whether or not the name of a party or candidate is stated.

Overall approach

State Services agencies are encouraged to take a conservative approach, to ensure the responsibility for impartiality by the State Services is maintained and that activities are consistent with the law. In view of the interest shown in the new electoral finance legislation, material released by government agencies is likely to be subject to public scrutiny.

For further advice:

• contact the State Services Commission (election@ssc.govt.nz) or telephone (04) 495 6600 and ask for the Trust and Values team);
• see Advertising and Communications - Further Guidance, attached as Appendix 2;
• see Guidelines for Government Advertising (Appendix 2, and the Cabinet Manual).

2.3 State servants and politics

Key points

• State servants have the same political rights and freedoms as other New Zealanders but must maintain the political neutrality required to work with current and future governments.
• For most State servants, participation in party politics (or in a listed third party under the Electoral Finance Act) is not likely to affect the confidence which the Government has in their employing agency or undermine the ability of that agency to work effectively with future governments.
• State servants taking part in political activities need to exercise judgment about what is appropriate.
• State servants must discuss any active involvement in a political party or a listed third party with their manager or chief executive.

State servants' participation in political activities, as individuals

In general, State servants have the same political rights and freedoms as all other New Zealanders. However, they have a concurrent responsibility to maintain the political neutrality required to work with current and future governments.

Everyone working for a State Services agency must ensure they do not confuse their political rights with their employment responsibilities. They must exercise judgment when deciding what level of personal participation in political activities is appropriate (this may include participation in the work of other organisations if they become "listed third parties" under the Electoral Finance Act).

Membership of a political party or of a listed third party is acceptable for most employees in the State sector, as is helping with fundraising, assisting with a leaflet drop and taking part in other forms of support. However, senior State servants and/or State servants who have a close working relationship with Ministers should avoid these affiliations.

State servants need to discuss with their manager or chief executive any political activities in which they intend to be involved in a personal capacity, and to ensure they understand the relationship between their employment responsibilities and the freedom to exercise civil rights.

State servants involved with a political party or intending to comment publicly on political matters need to be particularly careful that they do not:

• reveal advice given to Ministers;
• disclose information they are not authorised to disclose;
• criticise ministerial policy with which they have been professionally involved; or
• purport to express an agency view when they are giving their own view.

The principles set out here apply at all times, but special care must be taken in the election period.

See Understanding the code of conduct - Guidance for State servants: www.ssc.govt.nz/code-guidance-stateservants; and

Political Neutrality Fact Sheet No. 2 Political Views and Participation in Political Activity www.ssc.govt.nz/political-neutrality-fact-sheet-2.

Use of Agency Resources

Key points

• Agency facilities must not be used to display material or to carry out any activities that could reasonably be regarded as 'party political' in nature.
• State servants must not use the resources of their agency in ways that could be seen as breaching the principle of political neutrality.

It is not appropriate for the premises or other resources of agencies to be used for electioneering. For example, posters or other material produced by political parties that promote that party or lobby for or against issues likely to feature in the election, must not be displayed on agency premises, vehicles, or websites.

An exception may be made for premises that are effectively public venues, and for which normal commercial terms are imposed. There is also provision in the Electoral Act for political parties to use State schools for election meetings.

Departments are party to a Partnership for Quality agreement between the Government and the Public Service Association, and many agencies have agreements with other employee groups.

The representational activities of these employee groups within work sites are acceptable. The content, however, must not be political party advertising under the banner of the employee group. In an election period, it is appropriate for these groups to share with their members the approach they are taking to party policies, and for their members to share this material with others who may be potential members. Any display of this type of election-related material must be on a space dedicated to the employee group and in a staff-only area to avoid any public misperceptions about purpose.

Subject to those conditions, neither the content and distribution, nor any consequent discussion in the work place of this type of employee group material, breaches the political neutrality obligations of State servants, provided they:

• do their job professionally and loyally, without letting their personal interests or views influence their advice or behaviour, and without bias towards one political party or another; and
• are not involved in party-political activities if these could be seen as compromising the political neutrality principle or undermining public trust in their agency.

If an employee group becomes a 'listed third party' under the Electoral Finance Act, there may be some implications for activities such as the distribution and display of material on agency premises.

An interpretation of the legislation is being sought. Once this is available, the SSC guidance will be revised to clarify the potential impact on agencies and chief executives.

State servants should be careful about providing their work place contact details to political organisations. For example, sending or receiving party political material (for personal information) through an agency's fax, e-mail or other on-line facilities is likely to be perceived as undermining that agency's impartiality.

State Servants Standing for Election

Key points

• State servants are entitled to campaign for election to Parliament. They must notify their employer if they intend to seek selection as a candidate.
• The Electoral Act sets the minimum period during which State servants standing for election must take leave, but a more extended period of leave may be appropriate.
• More stringent provisions may apply where senior State servants wish to stand for Parliament.

The Electoral Act 1993 allows State servants to stand for election to Parliament. Being a candidate is clearly a political activity, so any State servant seeking selection as a candidate must inform their employer of that intention.

The law requires any State servant who becomes a candidate to take leave for a period before the election. The minimum period is the time between Nomination Day (a maximum of 27 days before Polling Day) and the first working day after Polling Day. Someone included on a party list becomes a candidate on Nomination Day when the list is lodged with the Chief Electoral Officer.

If a State servant who is standing as a candidate seeks to campaign before Nomination Day, in a way that will materially affect their ability to carry out their duties satisfactorily, it will usually be appropriate to negotiate leave with their employing agency for the period of their campaign (s. 52(4) of the Electoral Act).

If declared elected, a State servant will immediately be deemed to have vacated their position. If unsuccessful, they may resume work on the first working day after Polling Day (s. 53(2) of the Electoral Act).

More stringent provisions may apply, on a case by case basis, where a senior State servant or a State servant whose position puts them in regular contact with Ministers wishes to stand for Parliament. Because of the nature of their duties (particularly advice, organisational leadership and management), it would be highly unlikely that a senior State servant, if unsuccessful, could maintain the same relationship of trust and confidence with their Minister that applied prior to their candidacy. For these reasons, before making any decision to put their name forward for selection (for an electorate seat or on a party list), a State servant should discuss the issues involved with their chief executive or board chair and, if necessary, the State Services Commissioner. There may be some instances in which resignation, rather than taking leave, is the only appropriate approach if such a State servant wishes to stand for Parliament.

Circumstances may arise where it would be appropriate for an employer to assign to a State servant whose candidacy had been unsuccessful, duties different from those they had before taking leave.

Contact between State servants and Members of Parliament and Political Parties

Key points

• Contact, in a work setting, between State servants and Members of Parliament is always sensitive, but can become more so in an election year.
• State servants should follow established protocols during an election period.

The sensitivity which always exists when MPs have contact with agency staff can increase in an election year. Particular issues can arise in operational branches of agencies when MPs are acting on behalf of their constituents. State servants should be sensitive to the fact that, in an election year, an MP often may have the dual role of advocating for a constituent and campaigning for re-election. Branch managers should contact their head office if they are uncertain how to handle a specific case.

Apart from responding to constituency concerns raised by a local MP, contact in a work setting between State servants and representatives of political parties (within or outside the Government) should only take place during the election period with prior ministerial approval.

In a similar way, requests by MPs or by parliamentary candidates to visit agency premises during the election period should only be facilitated if the agency has obtained the prior approval of its Minister.

Attendance by State servants at Caucus and Caucus Committee meetings

Key points

• State servants should refer to their chief executive any requests relating to involvement in caucuses or caucus committees.

A State servant who is requested to attend a caucus meeting of a political party represented in the House, should not do so without first obtaining the agreement of their chief executive and/or direction from the responsible Minister. State servants should not undertake work at the direction of caucuses, nor should they service caucuses or caucus committees. Any instructions that might emerge from caucus discussions should be given to the agency only by the responsible Minister.

Costing Parties' Policies prior to the election

Key points

• Detailed provisions apply when an agency is requested to cost a party's political policies.
• A written request by the Minister of Finance or another Minister is required before an agency undertakes any such costings.
• Guidelines on costings are attached as Appendix 3. Further advice is available from the Treasury.

It is the routine business of most agencies to cost policy options. However, agencies may be asked by their Minister to cost the policies of parties in government, or to cost other parties' policies where Ministers wish to use this information for partisan purposes, for example during election campaigns. Provisions have been designed to cover such situations to protect State sector political neutrality, while providing Ministers with the information they require.

Costing the policies of any political party should only be undertaken following a written request from the Minister of Finance or another responsible Minister. The Minister is required to specify the proposals to be costed where there is any uncertainty about this. Any request for costings made to an agency other than the Treasury is to be referred by the department to the Office of the Minister of Finance in the first instance.

State servants are prohibited from making broad assumptions about policies or commenting on the merits of policies.

The Guidelines for Costing Party Political Policies are attached as Appendix 3. If State servants are uncertain over the application of this guidance, they should seek advice from their agency's Treasury Vote Analyst or the Fiscal Management Team at the Treasury.

Pre-election Economic and Fiscal Update

Key points

• Agencies must provide information requested by the Treasury to ensure that significant decisions are included in the Pre-election Economic and Fiscal Update.
• Briefings to Ministers should be timed to ensure that significant decisions can be included in the Pre-election Economic and Fiscal Update.

The Treasury prepares a Pre-election Economic and Fiscal Update, under the Public Finance Amendment Act 2004. It is normally published four to six weeks before the election. The Update must include 'to the fullest extent possible' information on all government decisions and circumstances that may materially affect the fiscal and economic outlook. Ministers should be briefed in time to ensure that significant decisions can be included in the Update.

The Treasury will publish further details and a timeframe when the 2008 election date has been announced.

2.4 Providing information

Official Information Requests

Key points

• Official Information Act requests must be responded to in a timely and appropriate manner, regardless of an imminent election.
• The only reasons for withholding information are those specified in the Act.

The Official Information Act 1982 provides for the release of government information to the public. To preserve the political neutrality of the State Services, agencies must handle information requests in a timely fashion, particularly during an election period.

Requests for information made by political parties in the election period should generally be treated in the same way as any other request for official information. However, the agency's chief executive must be informed of any Official Information Act request received from an MP or a political party (including party research units) during this period. The chief executive may wish to consult with the responsible Minister about the request, but this must not be a justification for delaying a response.

If the Minister and the chief executive cannot agree whether particular information should be released, the request should be transferred to the Minister if those discussions indicate that the issues raised are more closely aligned to the role and functions of a Minister, because this:

"...is the only way in which the department can meet its constitutional duty to follow Ministerial direction and the obligation to comply with the Official Information Act....".¹

If the request relates to a function in which an official is required by statute to act independently, no consultation is required with the Minister, though this does not diminish the need to keep the Minister informed.

In a previous election period, the Ombudsmen commented on the extreme importance of a well-informed electorate at the time of a general election. They reported critically about State servants who had become involved in assessing the political consequences of releasing information, rather than making a decision in a politically neutral manner. The Ombudsmen's concerns are set out in Appendix 4 (Ombudsmen Report on Official Information Act Releases during an Election Period).

The Official Information Act also applies to information or analysis provided to political parties that are seeking to form a government following the election. The State Services Commissioner should be advised of any such requests and the approach the agency intends to take. If necessary, the State Services Commissioner will coordinate responses (see section 3.2 of this guidance).

1 From Cabinet Manual 2001, 6.34