2: Prior to a general election
2.1 Government decisions and actions before an election
The Government has the right to govern until the election. The caretaker convention does not apply during the pre-election period.
However, governments have chosen to restrict their actions to some extent during previous pre-election periods.
In the period leading up to an election, the Government retains the right to govern. The Government is not bound by the caretaker convention (see section 3.1) in the pre-election period, unless the election has resulted from the Government’s loss of the confidence of the House.
Successive governments, however, have chosen to restrict their actions to some extent during pre-election periods, in recognition of the fact that a potential change of government may be imminent. For example, significant appointments have been deferred, and some otherwise unexceptionable government advertising has been considered inappropriate during election campaigns, due to the heightened risk of perception that public funds may have been used for party political purposes (see also section 2.2).
From a practical perspective, 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.
The Secretary of the Cabinet is available to provide advice on decision making during the pre-election period.
Agencies and Ministers’ offices need to have protocols in place to ensure that media enquiries are handled promptly, by the person most appropriately placed to do so.
An election year increases media interest in the activities of government and its agencies. State servants need to know how to identify matters that are primarily either political or operational, and whether those matters 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 an 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, by the person most appropriately placed to do so.
Media releases by State services agencies during election periods must be drafted with an appreciation of the scrutiny given at such times to the activities of the Government, its agencies, and their employees. As at all times of the year, they must be strictly factual and impartial.
Programme launches and events
Agencies should continue to support Ministers with ‘business as usual’ initiatives during an election period.
Particular care is needed around ceremonial events to avoid perceptions of being associated with any political aspects of such events.
There is no blanket restriction on Ministers wishing to launch programmes or initiatives in the lead up to the election. In general, the business of government should continue and State servants should support Ministers with ‘business as usual’ initiatives. However, the nature and timing of high profile ceremonial events (e.g. building openings or award ceremonies) must be carefully considered.
During an election period, there is a risk that public launches and events may take on a ‘party political’ character that would not be evident at other times. This is particularly so when Ministers and/or MPs are involved in the event. In general, State servants should support Ministers as usual, but must be vigilant in avoiding association with any political aspects of such events. Particular care must also be taken with the preparation of supporting material. All agency material must remain strictly impartial and factual to avoid any perceptions of being associated with any party political messages (see ‘advertising and publicity campaigns’ directly below).
State servants should consider whether the impartiality of their agency could be called into question if high profile events involving politicians are scheduled in the weeks immediately prior to the election. In some circumstances, where there is a high perception risk to the agency, it may be appropriate to defer the event until after the election.
Advertising and publicity campaigns
Agencies are responsible for publicising government policies and services and this ‘business as usual’ activity continues during an election period.
Restraint is required around publicity that may create a perception that government funds are being used to finance publicity for party political purposes
Advertising or communications by State services agencies that could be regarded as encouraging voters to vote, or not vote, in a particular way are never acceptable.
Business as usual campaigns
Publicity and advertising are legitimate forms of governmental spending; there is no blanket restriction on communication campaigns during the election period. In general, campaigns that inform people of government policies and services or set out their entitlements and responsibilities do not need to stop during an election period.
Restraint in certain circumstances
However, in the run-up to an election, agencies should carefully consider the content and timing of their campaigns. Successive governments have exercised restraint around advertising campaigns to avoid any perception that funds are being used to finance publicity for party political purposes.
Communication campaigns or advertising undertaken during this period should be assessed for potential perceptions of ‘party political’ bias. Agencies should be aware that content, which might be unexceptionable at other times, may take on a party political flavour in the lead up to an election.
Agencies should also carefully consider the timing of their campaigns. As the election date approaches, there should be a clear need by the recipients to receive the information at that time. For instance, it may not be appropriate during an election period to publicise programmes that do not come into effect for some time, particularly if the implementation of the programme is dependent on the election outcome.
Guidelines for Government Advertising
The Guidelines for Government Advertising are contained in Appendix B to the Cabinet Manual. 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 government advertising to be presented in a manner that is:
Accurate, factual, and truthful - Factual information should be outlined clearly and accurately. Any 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.
Agencies must comply with these long-standing principles regarding advertising and communications campaigns at all times, not simply during an election period.
It is never acceptable for agencies to encourage electors to vote (or not vote) for specified parties, policies, or candidates. All publicising of government policies and services must be managed in a way that avoids such perceptions.
2.3 State servants and politics
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 is not likely to affect the confidence that the Government has in their agency, or undermine the ability of that agency to work effectively with future governments.
Senior State servants, and those who engage directly with Ministers, should exercise careful judgment when considering involvement in political activities.
State servants may wish to discuss any active involvement in a political party with their managers to avoid any misunderstandings.
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 also have a concurrent responsibility to maintain the political neutrality required to work with current and future governments.
State servants must ensure that they do not confuse their political rights with their employment responsibilities. In short, State servants must keep their jobs out of their politics and their politics out of their jobs.
Membership of a political party is acceptable for most employees in the State services, as is helping with fundraising, assisting with leaflet drops, and taking part in other forms of support. However, State servants must exercise judgment when deciding what level of personal participation in political activities is appropriate. Senior State servants and State servants who have a close working relationship with Ministers should avoid active involvement in political activity if it could be perceived as conflicting with their political neutrality obligations.
State servants may wish to discuss with their managers any political activities in which they intend to be involved in a personal capacity. This may help to avoid any misunderstandings, and ensure that the relationship between employment responsibilities and the freedom to exercise civil rights is understood.
State servants involved with a political party, or who intend 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.
These principles apply at all times, but special care must be taken in an election period.
For further guidance see Political Neutrality Guidance and Understanding the code of conduct – Guidance for State servants.
Interaction with social media
State servants should only contribute to social media, as agency representatives, with express approval.
State servants who contribute to social media in a private capacity must avoid harming the reputation of their agencies or the State services.
Social media tools bring both benefits and risks to State services agencies. Because of a heightened interest in the actions of State servants and agencies during an election period, particular care must be taken to minimise the risks when using social media.
The rules that apply when State servants interact with social media in an official capacity are the same as those that apply when communicating with news media or speaking at a conference. Most importantly, State servants should only act as representatives of their agencies if they have been given express permission to do so. Participation by agency representatives in social media fora during an election period should be limited to comment on operational matters and publishing factual information.
During an election period, State servants are entitled to participate, in a private capacity, in political activity via social media. The same rules apply as when participating in political activity in other ways (see above). State servants should ensure that it is clear to others that their contributions are made as private individuals, and not as representatives of their agencies.
Regardless of the medium being used, State servants are required, by the Standards of Integrity and Conduct for the State Services, to avoid activities, work or non-work, that may harm the reputation of their agencies or of the State services, and must not disclose any government material that that is not already publicly available.
One of the major challenges presented by social media is the overlap between what is personal and what is professional. Matters that State servants consider private can easily become public through social media, and permanently accessible. If in doubt, State servants should treat a social media forum as public, and behave in a manner that respects their obligation to maintain politically neutral State Services. See Principles for Interaction with Social Media.
Use of agency resources
Agency premises 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 their agencies’ resources in ways that could be seen as breaching the principle of political neutrality.
It is not appropriate for agencies’ premises or other resources to be used for electioneering. For example, material produced by political parties that promote party interests, 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 1993 for political parties to use State schools for election meetings.
State servants may use their office equipment and supplies only for the purpose of carrying out their jobs. Agency resources, such as photocopiers and email systems, must not be used to support the private political activities of individuals.
State servants should not provide their work place contact details to political organisations. For example, sending or receiving party political material (for personal information) through an agency’s e-mail or internet facilities is likely to be perceived as undermining that agency’s impartiality.
Union activity in the workplace
Unions are entitled to carry out representational activities in an election period.
Union material made available to State servants in their workplaces must not be visible to the public and must not represent political advertising.
The representational activities of unions within government work sites during an election period are acceptable. The content, however, must not be in the nature of political party advertising, under the banner of the union. In an election period, it is appropriate for unions 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 union, and in a staff-only area, to avoid any public misconceptions about purpose.
Subject to those conditions, neither the content and distribution, nor any consequent discussion in the work place of this type of union material, breaches the political neutrality obligations of State servants, provided that they do their jobs professionally and loyally, without letting their personal interests or views influence their advice or behaviour, and without bias towards one political party or another.
State Servants standing for election to Parliament
State servants are entitled to put themselves forward for selection and, if chosen, stand for election to Parliament.
State servants should discuss with their employer the implications of the candidacy, and come to an agreement on how it will be managed.
The Electoral Act 1993 sets out which State servants must take leave from their positions if standing for Parliament.
State servants not covered by the Electoral Act provisions should discuss with their employers whether they should take leave from their positions to preserve the political neutrality of the State Services.
State servants are entitled to stand for election to Parliament. At all times a balance should be reached that respects State servants’ freedoms of expression and association, and the public interest in having a politically neutral State services.
The Electoral Act 1993
The Electoral Act sets out requirements for some State servants with regard to being a candidate in an election. These State servants are those who are employees of Public Service departments, the New Zealand Police, the NZSIS, members of the Defence Force (other than those excluded under section 3(d) of the Electoral Act), the Education Service1, and the Cook Islands and Western Samoan Public Service. The requirements for these State servants are:
The State servant must take leave of absence from his or her position for a period if standing for Parliament (s.52(2) of the Electoral Act).
The minimum period for the leave of absence is the time between Nomination Day (i.e. the last day a person can be nominated to stand for election) and the first working day after Polling Day (s.52(3) of the Electoral Act). This period is approximately three and a half weeks.
If the employer of a State servant standing as a candidate considers the candidacy will materially affect the employee’s ability to carry out his or her duties satisfactorily, the employer may decide that leave is to commence earlier than Nomination Day (s. 52(4) of the Electoral Act).
If declared elected, the State servant will immediately be deemed to have vacated his or her position (s. 53(2) of the Electoral Act).
If unsuccessful in the election, State servants may resume work on the first working day after Polling Day (s. 52(3) of the Electoral Act).
State servants who are not explicitly covered by the Electoral Act provisions (e.g., employees of statutory Crown entities, Crown entity companies, and organisations on the 4th Schedule of the Public Finance Act) should also consider the impact their candidacies may have on Ministerial and public confidence in the political neutrality of the State sector. Employers of such State servants may wish to consider whether the same processes around taking leave, as outlined in the Electoral Act, should be followed with respect to their employees.
In discussing with an employee who is not explicitly covered by the Electoral Act provisions whether it would appropriate for them to take a leave of absence, agencies should consider factors such as the agency’s role in the operations of government and the nature of the employee’s position (e.g., seniority, degree of engagement with Ministers and level of responsibility for policy development or implementation). If elected to Parliament, State servants not covered by the Electoral Act should resign from their positions.
Informing the employer
Being a candidate is clearly a political activity with potential implications for the employing agency. The situation should be handled in a similar way to other potential conflicts of interest. Any State servant seeking selection as a candidate must declare this interest by informing his or her employer of the intention to seek selection. The manager should inform the Chief Executive, who may wish to inform the relevant Minister on a ‘no surprises’ basis.
Managing any implications for the employing agency arising from the candidacy
State servants should discuss the implications of a possible candidacy as early as possible with their employer. Doing so is particularly important for senior State servants and those who interact with Ministers. For these State servants, the implications may be more significant than for others.
Once the employer has been notified, the individual and the agency should discuss how to manage the implications. A useful first step may be to set up a meeting to explore any areas of conflict and how they will be handled. The employee may wish to involve their representative in any such discussions. It may be useful to record the discussion, and agreements reached, in writing to avoid any misunderstandings.
The discussion should address the practical implications of potential areas of conflict between the individual’s role and the political candidacy. Any agreements should reflect a balance between the individual’s right to stand as a candidate and their obligations to their employer as a State servant. These obligations include a duty to not harm the reputation of the agency or the State services, and to respect the authority of the government of the day.
Key considerations in managing any implications of the candidacy
When discussing candidacies, agencies and employees may wish to consider:
the importance of balancing the employee’s right to stand for Parliament and the responsibility to maintain politically neutral State services
the extent that the employee’s seniority, interaction with Ministers and/or their particular role in the agency is affected by the intention to stand for Parliament
how any identified risks may be mitigated, including whether any changes should be made to the employee’s role to preserve impartiality
the communication process for discussing or advising on matters relating to the candidacy, to ensure there are ‘no surprises’ for either party
how the employee will continue to meet their obligations under the State Services Standards of Integrity and Conduct, including the importance of not divulging any government information that is not in the public domain
how topics associated with the employing agency will be treated, that is, caution will need to be exercised by the employee around any policies with which he or she has been professionally involved
the implications of an unsuccessful candidacy on the employee’s role post-election. The Electoral Act provides that if not elected, State servants can return to work. However, in rare cases, a change of duties may be required. This should be discussed before the election.
Contact between State servants, Members of Parliament and political parties
Contact, in a work setting, between State servants and Members of Parliament is always sensitive, but can become more so during an election period.
As at all times, requests by MPs or parliamentary candidates to visit agency premises should only be met with the prior approval of the Minister.
The sensitivity which always exists when MPs have contact with agency staff can increase during an election period. 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, during an election period, MPs may often have the dual role of advocating for a constituent and campaigning for re-election. Branch managers should contact their head offices if they are uncertain how to handle a specific case.
During an election period (as at other times of the year), any requests by MPs or parliamentary candidates for information or services over and above what would normally be provided to a member of the public (e.g. a visit to an agency’s premises or a substantial briefing) must be referred directly to the agency’s Chief Executive. The Chief Executive will refer the request to the relevant Minister and the request will be met only as agreed by the Minister.
Attendance by State servants at caucus and caucus committee meetings
State servants should refer any requests relating to involvement in caucuses or caucus committees to their chief executives.
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 his or her 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
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 will be made available on the Treasury’s website in due course.
It is the routine business of most agencies to cost policy options. However, agencies may be asked by their Ministers 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 the political neutrality of the State Services, 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, in the first instance, to the Office of the Minister of Finance.
State servants are otherwise 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 about the application of this guidance, they should seek advice from their agency’s Treasury Vote Analyst or the Fiscal and State Sector Management Team at the Treasury.
Pre-election Economic and Fiscal Update
Agencies must provide information requested by the Treasury to ensure that significant decisions and risks are included in the Treasury’s Pre-election Economic and Fiscal Update.
The Treasury prepares a Pre-election Economic and Fiscal Update, under the Public Finance Act 1989. The Update is normally published four to six weeks before an 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. Chief Executives and Chief Financial Officers are required to sign a Statement of Representation to confirm that they have notified the Treasury of all matters that may affect the fiscal and economic outlook.
The Public Finance Act sets rules around the timing of the Pre-election Economic and Fiscal Update but the exact date for release is at the discretion of the Minister of Finance. The Treasury will release detailed guidance and a timetable for the preparation of the Update via CFISNet in due course.2
2.4 Providing information
Official Information requests
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 during an 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 an election period. The chief executive may wish to consult with the responsible Minister about the request. In such cases, the agency should consider whether it is necessary to extend the timeframe for making a decision on the request using section 15A of the Act. Extensions should not, however, be sought just because the information may prove embarrassing to the agency, Minister or the government at the particular time.
Chapter 8 of the Cabinet Manual includes guidance on the release of official information, including the involvement of Ministers in a release. An agency may consult its Minister about any request for official information received. An agency should consult its Minister if the request relates to Cabinet material (as this is related to his or her activities as a Minister), and if it intends to release any information that is particularly sensitive or potentially controversial.
Upon being consulted, a Minister may take the view that information that an agency considers should be released, should not be released. In such cases, agencies should consider whether there is an obligation to transfer the request to the Minister under section 14 of the Act. The obligation to transfer will arise where the requested information is held by the Minister (but not the agency) or is more closely connected with the Minister’s functions. In the absence of these circumstances, the decision is the agency’s to make.
If a request relates to a function in which an official is required by statute to act independently, no consultation is required with the Minister, but this does not diminish the need to keep the Minister informed.
In a previous election period, the Office of the Ombudsmen commented on the extreme importance of a well-informed electorate at the time of a general election. The Ombudsmen were critical 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 Official Information Act also applies to information or analysis provided by agencies 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: As defined in the State Sector Act 1988, this includes employees in the service of any state or integrated school, or any tertiary or other education institution, and registered teachers employed by any free kindergarten association.
2: CFISNet is the Crown Financial Information System. It is a secure website designed by the Treasury to collect forecast and actual information from government departments, Crown entities and State-owned enterprises.