Part 5: So what needs to happen?

Government and parliamentary publicity and advertising.

A new publicity and advertising framework is required

5.1
The framework for managing publicity and advertising is weak, and needs to be reviewed. Significant improvements are required to assure the integrity of the overall administrative framework.

5.2
In order to facilitate this, we outline in this Part a possible new framework for government and parliamentary publicity and advertising. We have been informed by overseas practice, and we summarise Australian practices in Appendix 5.

5.3
Both Parliament and the Government have an interest and a role to play in establishing a new framework. We envisage that a framework could be created by officials from central agencies of the Executive and the Parliamentary Service, under the oversight of relevant Ministers and the Speaker. The Parliamentary Service Commission, as an advisory body to the Speaker, would clearly need to be involved.

5.4
In our discussions with parliamentary party leaders and administering agencies, concerns were raised that would limit the approaches that could be used to clarify these matters. These concerns were that:

The constitutional separation between the Executive and Parliament must be maintained. The responsibilities for establishing guidelines for Ministers and MPs are split – as a way of recognising the constitutional separation between the Executive and Parliament. There is a similar separation of staff, with Ministers’ staff employed by the Department of Internal Affairs, and MPs’ staff employed by the Parliamentary Service.
The position of public servants in relation to Ministers must be recognised. While public servants may advise Ministers, they must uphold the principle of political neutrality in their dealings with the Government of the day. A balance must therefore be struck between ensuring that public servants can carry out their roles (such as conducting publicity) in a politically neutral manner, and Ministers’ oversight of government departments.
The autonomy of Ministers and MPs in their relationship with the public must be preserved. Ministers and MPs are elected officers, not employees. They have a right to freely interact with the public as their elected representatives, without restriction.

5.5
In our view, these concerns should be respected. In doing so, considerable improvement could still be achieved within the administrative framework. It is in this context that we make the following suggestions.

The framework should be principle-based

5.6
A single set of principles should apply to parliamentary, ministerial, and State sector publicity.

5.7
The principles should:

recognise the legitimacy of taxpayer funds being spent on publicity of government and parliamentary business, subject to appropriate constraints;
describe the appropriate constraints (including purpose and scope, justification, and manner of presentation);
take account of the multi-party political environment under MMP, including the particular publicity requirements of coalition partners;
set out an acceptable test for dealing with political content and indirect party political benefit. The test should recognise the different contexts in which publicity material may be prepared, but articulate clearly the minimum public expectation¹³; and
say how, and to whom, responsibility for using resources and complying with relevant rules or standards is to be assigned.

5.8
The principles should also:

recognise that publicity, like any form of taxpayer funded activity, should be undertaken in an efficient and financially prudent manner, and achieve value for money;
address the need for appropriate standards of transparency (including what rules and standards apply, their objectivity, clarity and accessibility, and how decisions are made under them); and
say how, and to what extent, those who have access to resources for publicity purposes should be held accountable for their use.

Complementary rules and standards should apply

5.9
Separate rules and standards should apply to ministerial, parliamentary, and State sector (including government departments and Crown entities) publicity.

5.10
The rules and standards should be complementary. They may be different, in recognition of the different contexts in which publicity activities are undertaken, but should be consistent with the overarching principles and, when read together, be compatible with each other.

5.11
Each set of rules and standards should:

apply to all forms of publicity (we would abandon the term “advertising”);
apply to all public organisations associated with central government, irrespective of the source of their funds;
clearly set out what publicity activities are authorised under the relevant appropriations;
include workable guidance about purpose and scope, justification, and manner of presentation, and what standards apply (in the particular context) in respect of political argument and partisan promotion of policy;
identify clear and workable procedures for the approval of publicity before publication takes place; and
establish a regime for disclosing annual spending on publicity, incurred by those to whom resources are made available for that purpose.

5.12
From our overseas research, we envisage that rules and standards would be set on matters of generic importance, such as:

the use of official emblems (including the New Zealand coat of arms and the parliamentary crest), in accordance with the appropriate legislation and conventions;
attribution (who has authorised the publicity, and how it has been paid for);
the use of other branding tools (for example, whether a single government brand must be used, or whether and to what extent government departments can use their own brands), and the conditions on their use; and
procurement processes that reflect best practice, and recognise that government is a significant client of the communications industry.

Certain office holders should set the rules

5.13
The Speaker of the House of Representatives should set rules and standards for parliamentary publicity.

5.14
The Minister Responsible for Ministerial Services should set rules and standards for ministerial publicity.

5.15
We would expect Cabinet to set rules and standards for State sector publicity (that undertaken by government departments and other central government agencies). We consider that the State Services Commissioner is best placed to advise Cabinet on these matters, given the Commissioner’s role and responsibilities.

5.16
We would expect consultation to occur, to ensure that the rules produced are complementary.

5.17
Those who set rules and standards would also be responsible for:

ensuring that the rules and standards are consistent with the overarching principles, and complement other rules and standards that apply within the overall framework;
promulgating any revisions;
ensuring that sufficient resources are available to the agency responsible for administering the relevant rules and standards;
making rulings when administrative guidance leads to dispute; and
deciding what sanctions, if any, should apply in the event of a breach, and applying those sanctions in particular cases.

5.18
With respect to State sector publicity, we would not expect Cabinet to make rulings or decide sanctions in specific cases. However, we would expect that, where State sector agencies have difficulty in applying the rules and standards set by Cabinet, the State Services Commissioner would be able to provide appropriate advice to the agency or relevant Minister to help them avoid breaching those rules and standards.

5.19
The parliamentary parties we consulted agreed that there should be a single set of principles, with complementary rules and standards, governing the spending of public funds on publicity whether by departments, Ministers, or parliamentary parties. However, it is clear that the details would need further debate. One party, for example, expressed reservations about making the Minister Responsible for Ministerial Services responsible for setting rules and standards for ministerial publicity, noting that the Minister would not have the same amount of independence as would the Speaker in respect of parliamentary publicity. We recognise those reservations. But we note that the Minister is responsible, under the Public Finance Act 1989, for all ministerial expenditure. A rule-setting role would be consistent with that responsibility.

Specific agencies should administer the rules

5.20
Different administrative arrangements would be needed depending on whether publicity was generated by Ministers, MPs, or State sector agencies. The Auditor-General also has a role under such a framework.

Ministerial and parliamentary publicity

5.21
The Chief Executive of the Department of Internal Affairs should be responsible for the day-to-day monitoring of Ministers’ compliance with the rules and standards applying to ministerial publicity. The General Manager of the Parliamentary Service should have the equivalent responsibility in respect of MPs’ and parliamentary parties’ publicity. The responsibility in each case would include investigating any possible breaches of the rules and standards, and assisting the Minister Responsible for Ministerial Services or the Speaker, as the case may be, to issue guidance on how they are to be applied – both generally and in particular cases.

5.22
The administrative role would include:

confirming that any proposed publicity is within the rules and standards, before its publication;
retaining copies of, and collecting financial and other performance information on, all publicity paid for with the resources they administer; and
publishing annual information about the costs incurred.

5.23
The Chief Executive and the General Manager should be responsible for ensuring that the necessary capability, systems, policies and procedures are in place in the Department of Internal Affairs and the Parliamentary Service to discharge their respective responsibilities.

5.24
One parliamentary party told us it would be opposed to any suggestion of making elected MPs accountable to officials. The Department of Internal Affairs has also expressed concern that such a role places the Chief Executive in an “invidious position”, because the Department’s ministerial services are provided to serve the Government of the day, not to regulate or control it. We acknowledge that our proposals would introduce a greater amount of oversight than is currently undertaken by public officials in New Zealand. However, it is important to repeat the point we made in paragraph 5.4, that a new framework should acknowledge the autonomy of Ministers and MPs to interact with the public.

5.25
We also note that this type of activity is a characteristic of oversight in certain Australian jurisdictions (see Appendix 5). The oversight is confined to ensuring that material complies with the relevant rules. It does not question the reasons for the publicity. We envisage that any new oversight procedures in New Zealand would have the same limitations.

5.26
Ministers would remain individually responsible to Parliament for the conduct of publicity activity in relation to ministerial business.

State sector publicity

5.27
The State Services Commissioner should be responsible for issuing guidance on how the rules for State sector publicity are to be applied by State sector agencies, and providing advice in relation to possible breaches of the rules.

5.28
Government department chief executives should be responsible for the day-today monitoring of their department’s compliance with rules and standards on State sector publicity, and for ensuring that appropriate systems, policies, and procedures are in place to achieve compliance.

5.29
For Crown entities, the entity’s board should be responsible for complying with the rules and standards. The entity’s Chief Executive should be responsible for the day-to-day monitoring of the entity’s compliance, and for ensuring that appropriate systems, policies, and procedures are in place to achieve compliance.

5.30
Ministers would remain responsible to Parliament for the conduct of publicity activity in the area of their portfolio responsibilities.

5.31
The Speaker would be responsible for guidance to the Offices of Parliament and the parliamentary agencies – the Office of the Clerk and the Parliamentary Service. The chief executives of those offices would be responsible for the matters set out in paragraph 5.28.

Role of the Auditor-General

5.32
We would retain the ability to provide assurance on, and inquire into, any issues in relation to the use of public funds for publicity – but in the expectation that involving us would be required only should the administrators not be able to resolve a matter.

5.33
We would also examine any disclosures of publicity-related spending by the administrators, as a normal part of our annual audit of government departments and other entities.

Appropriations should be transparent

5.34
The administrative improvements that we have proposed would need to be supported by clearly stated high-level expenditure parameters. This is particularly relevant to publicity generated by Ministers and MPs, who (as mentioned previously) are not employees of the agencies that administer funds used for publicity purposes.

5.35
In relation to the appropriations that fund publicity activities, we propose the following measures:

Reducing, from 3 to 1, the range of appropriations within Vote Parliamentary Service through which publicity-related activities can be funded – and clearly identifying the single appropriation.
Clearly stating the appropriation through which publicity-related activities are funded under Vote Ministerial Services.
Where possible, identifying the appropriations in government department Votes under which major departmental publicity outputs will be provided.

5.36
In relation to ministerial and parliamentary publicity, we consider that publicity outputs should be appropriated as “other expenses” in the relevant Votes. This would recognise the significance of ministerial and parliamentary publicity activities as outputs.

5.37
In the case of government departments, publicity activities are incidental to other outputs appropriated under the Votes administered by departments, and thus the extent to which appropriations could be clarified may be restricted. In such situations it might be more acceptable to identify the appropriations that include major publicity expenses in the scope of a single appropriation, rather than allowing those expenses to be spread across a number of appropriations.

How the new framework can be progressed

5.38
A process is needed to develop and introduce a new framework.

5.39
The Remuneration Authority (Members of Parliament) Amendment Act 2002 introduced a new model for fixing the travel, accommodation, attendance and communications services available to Ministers and MPs. Under the model, the Speaker and the Minister Responsible for Ministerial Services make determinations, in consultation with particular agencies, which must be published on the Internet and made available to the public. A determination may incorporate other information by reference.¹⁴

5.40
In our view, the model offers an example of how rules and standards for ministerial and parliamentary party publicity could be promulgated in a way (which need not necessarily be legislated) that meets the transparency requirements set out above.

13: For example, the minimum requirement applicable in the United Kingdom is –

…It is possible that a well-founded publicity campaign can create political credit for the Party in Government. But this must not be the primary or a significant purpose of Government information or publicity activities paid for from public funds.

14: See sections 20A and 20B of the Civil List Act 1979, as amended by the 2002 Amendment Act.

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