06 April 2013

Let's make the GCSB Director's appointment more transparent

The Prime Minister had great difficulty in telling a straight story about the appointment of the Director of GCSB, at one point saying that the State Services Commissioner appointed him (which is not true), and, at another, saying that it was a ministerial appointment and so it was up to him as PM anyway. This obviously has reflected badly on Mr Key's integrity, especially given that the appointee was, at the least, an old acquaintance. Was he trying to deflect responsibility onto his public-service advisers?
Labour's Grant Robertson has rightly called for 'more transparency' in the process for appointing the country's top spy. After all, it's not as if that person's identity, as chief executive, can or should be a state secret. And we all want to avoid accusations of prime-ministerial favoritism or bungling.
As mentioned in my previous blog, the GCSB Act requires that the appointment of the Director is made by the Governor-General. Note that this is not 'the Governor-General in Council', as is required by the State Sector Act in the case of other public-service chief executive appointments. A meeting of Executive Council requires, for a quorum, at least two Ministers. So the fact that the GCSB appointment is simply made by the GG is significant. The GG is required to act on the advice of his Ministers. In the case of the appointment of the GCSB Director, he would be acting on the advice of the Minister responsible for the GCSB, the Prime Minister, and hence Mr Key was correct in saying that this appointment is, in effect, a ministerial appointment. That is, he gets to decide, and the GG accepts his advice on whom to appoint, potentially without any oversight at all.
Now, I know what you're thinking: Why then did the PM bother to involve the State Services Commissioner at all, when the SSC's processes do not legally need to be applied in this case? He could have just appointed Mr Fletcher and that's that. Well, it still makes sense to involve the SSC's independent selection panel as a way of vetting candidates and having due process at arm's length from the PM. It helps to keep things above board and to make sure that a suitable candidate is selected for such a sensitive post.
The State Services Commissioner, Mr Rennie, has expressed 'surprise', though, that the PM went ahead and made a direct call to Mr Fletcher regarding the position that he, Mr Key, gets to decide upon. This was clearly unwise of the PM, and Mr Rennie said that he would have advised Mr Key, had he known that the PM was intending to make that call, that it would have been better if he (Mr Rennie) were to call Mr Fletcher. For the Commissioner to publicly differ and distance himself from the PM in that fashion shows that there has been a serious rift opened up between the PM and the public service. That alone is bad news.
But, the SSC's involvement in the GCSB appointment is only by convention, and not required by law. The PM could leave the SSC out of it altogether, if he chose, and simply advise the GG on whom to appoint – even though such a short-cut would be unwise and lacking transparency. The Cabinet Manual – a set of guidelines for the executive that has no legal force – does state that the SSC 'also has a role in managing the appointment process' of (among others) the GCSB Director. So this makes it an informal, and not legally mandatory, norm for the SSC to be involved.
But, if we want a more transparent process in future, then I suggest that the GCSB Act 2003 (evidently passed during the Clark years) needs to be amended so that this can't happen again. Labour can call for an inquiry if they like, but the fact remains that Mr Key did nothing illegal – even though he should have told us a cleaner story about what he did do. If Grant Robertson keeps pushing this line for too long, then it may blow back in Labour's face. Because the solution to the basic problem is to amend a law, passed by a Labour-led government, that allows the PM to make a ministerial appointment without proper oversight and safeguards.
Politics aside, I think that the GCSB Act does need to change and that better oversight of the Director's appointment should be legally mandatory in future.


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