New Zealand and the OGP

Summary

NZ’s Action Plan is amongst the least ambitious of all 65 member countries in the OGP, and the process by which it was developed and is being implemented is a long way from the ‘co-creation’ between government and civil society that is the objective of the OGP. This latest consultation essentially just repeats a previous consultation on the draft Action Plan, completed in May 2014 prior to the Action Plan being finalised and published in October 2014. The government has not provided information for this consultation on progress since October in actually implementing the commitments in the Plan. One of the only four commitments in NZ’s Action Plan is to consider and respond to the recommendations in the Transparency International NZ (TINZ) 2013 National Integrity System Assessment. There is precedent for an OGP member to strengthen its first Action Plan by adding commitments during the course of the Plan. NZ should do so now, as part of this mid-term assessment process, by adding commitments to the Plan from amongst the recommendations in the NIS assessment, and thereby show it is serious about its participation in the OGP, and avoid international embarrassment and domestic recriminations.

Comment

NZ’s first OGP Action Plan 2014-2016 contains only four commitments.

This compares very unfavourably with other OGP members. The average number of commitments in the first 41 OGP Action Plans was 22, with a median of 19 commitments (source: analysis by the Global Initiative for Fiscal Transparency).  While what constitutes a commitment varies quite widely across Action Plans, there is no doubt that, in terms of the number and nature of the commitments, NZ’s Action Plan is seriously lacking in ambition.

Furthermore, two of the commitments are pre-existing, on-going government policies. The first is Result 10 of the Better Public Service (BPS) Results Programme – the public can easily complete their transactions with government in a digital environment. In addition to pre-existing policy, the activities in this commitment are predominantly internal to government, and it is not clear how it is about ‘open government’ as defined by the OGP, as opposed to ‘e-government’ – a problem found with a number of similar commitments in OGP Action Plans (OGP Independent Reporting Mechanism Technical Paper 1).

The second pre-existing commitment is the ICT Strategy and Action Plan to 2017. As noted by the OGP Support Unit in its comments on a draft of NZ’s Action Plan, without more specificity on the activities, products, and timelines of these two on-going commitments it will be hard to evaluate whether any progress has been made.

And the fundamental objective of the OGP is not the repackaging of pre-existing commitments, but to ‘…promote ambitious open government reforms that stretch the government beyond its current state of practice, significantly improving the status quo…’

The third commitment in NZ’s Action Plan is more interesting and potentially ambitious – to consider and respond to the sixty recommendations in TINZ 2013 National Integrity System (NIS) Assessment report. The government indicated it would work with TINZ and other stakeholders in implementing this commitment. Yet no information has been provided for this consultation on what engagement has occurred or what action has been taken, if any; and there is no indication of any timeframe for a government response.

There are a number of recommendations in the NIS Report that officials should have been in a position to fairly quickly put to ministers for consideration as additions to the OGP Action Plan. These include:

1.            Introduction of the systematic pro-active release of official information, and the promotion of enhanced compliance with and understanding of the Official Information Act.

2.            A commitment to increase the availability of public information on the performance of public procurement.

3.            A commitment to the regular publication of technically independent ‘State of the Nation’ environmental and social reporting.

4.            The introduction of a comprehensive National Anti-Corruption Strategy.

5.            A commitment to regular integrity and conduct surveys of public servants.

6.            A commitment to strengthen ‘whistle-blower’ legislation.

There are also some recommendations in the NIS that cover long-standing issues that will take some time to work through but which should be considered for inclusion in NZ’s second OGP Action Plan for the period 2016-2018. Examples include extending coverage of the Official Information Act to the administration of Parliament; implementing the Law Commission’s recommendation for an Official Information Act oversight function; putting in place public registers of trusts and of the beneficial ownership of companies; and opening up to greater public scrutiny organizational restructuring exercises within the public sector.

Beyond these areas, some of the most serious weaknesses in NZ’s governance – identified and analysed in the NIS assessment – relate to the transparency of political party funding, the allocation of broadcasting time to political parties, and weaknesses in enforcing the Electoral Act. These are difficult areas, and will require leadership across all political parties. One or two countries have included commitments relating to increasing the transparency of political party funding in their OGP Action Plans.

The aim should be to include commitments in these areas in NZ’s second Action Plan. This will however require careful design of arrangements for awareness raising, consultation, and deliberation on these recommendations – and a vast improvement in the way that public consultation and deliberation on the OGP are being managed.

The fourth commitment in NZ’s Action Plan is to review the Kia Tūtahi Relationship Accord between the Communities of Aotearoa NZ and the Government of NZ. This is a much more limited commitment than that sought by civil society and recommended in the NIS report – ‘Initiate discussions with civil society and the business community on a general government-wide framework for timely consultation on the development of new policy initiatives and encouragement of direct public participation in policy development and implementation’ (recommendation 3.biii).

The existing Relationship Accord is primarily a statement of principles and of mutual obligations on government and civil society when working together. It says relatively little about the ways in which government should engage the public when it is developing new policies, implementing policies, or reviewing policies.

For example, the Accord does not refer to internationally recognized good practices in public consultation and engagement, such as: when seeking public input, public authorities should indicate the potential scope for changes in policy or implementation that are under consideration; should publish the basis on which they have invited individuals and groups to participate in a specific engagement exercise; should ensure well-informed participation by providing sufficient information in a timely and accessible manner prior to consultation; should ensure meaningful participation by consulting early in the process while a range of options is still open; should publish a summary of the public inputs received, and indicate in general how the issues raised were addressed; should seek to institutionalise on-going engagement where appropriate; and so on.

In fact the Accord itself refers to the need for communities and government to ‘jointly resolve longstanding matters of concern, such as participation in decision-making around policy and service delivery issues, and funding arrangements.’

Therefore, rather than being confined to changes to the Kia Tūtahi Relationship Accord, the OGP consultation should start with dialogue over perceived problems and weaknesses in current public consultation and deliberation arrangements and practices. As discussed in the NIS assessment, these include uneven approaches to public engagement across different departments and public entities; the lack of a clear authorising environment and guidelines for public servants to engage in public consultation; shallow consultation that takes place too late in the policy development cycle; and concerns over contracts for service delivery with NGOs that restrict their ability to publicly express their views on public policy issues.

The channel of influence that appears to have prompted NZ to belatedly join the OGP was via UK Prime Minister David Cameron. The UK is one of the founding eight countries in the OGP. It has backed up its announced aim, of being seen as the most transparent country in the world, with ambitious and wide-ranging OGP Action Plans, especially its second Action Plan. The UK and other leaders in the OGP, such as the US, Brazil, and the Philippines, are the countries NZ should take its lead from in terms of the ambition of its Action Plan.

At the other end of the spectrum, there is – most unusually in comparative international exercises – something of a ‘Nordic race to the bottom’ in the OGP. The first Action Plans of both Norway and Sweden were notable for their lack of ambition. In the case of Norway, the independent researcher concluded that the Plan was so vague and full of pre-existing commitments it could not even be evaluated against the OGP’s criteria – the only IRM reviewer to reach such a conclusion to date. These countries appear to have made the mistake of viewing the OGP as another international club where developed countries can rest on their laurels and expect the developing countries to introduce initiatives to improve the way they govern themselves.

However, the OGP is very explicitly a completely different sort of initiative: one where all member countries act to increase transparency, public participation and accountability, irrespective of their different starting points.

At this stage it looks very much that NZ too will end up as a bottom dweller in the OGP.

It is not too late, however, for the government to turn this around.

With some interest and leadership from the Minister for OGP, additional commitments could be added now to the first Action Plan.

There is a precedent for an OGP member country to add commitments to its first Action Plan during the course of the plan. Mexico, one of the founding eight member countries of the OGP, submitted the first version of its first action plan in September 2011, but it lacked significant participation from civil society and included only a few civil society recommendations. A second ‘expanded’ action plan was therefore made in closer collaboration with civil society and released in early 2012. This plan featured a wider set of commitments, each with a unique co-governance structure between civil society and government.  The initial Mexican experience, of an unambitious Plan that was not co-created, closely resembles NZ’s.

The OGP’s Guidance on Action Plans states: We strongly recommend that each action plan contain between 5 and 15 ambitious commitments’ – note the word ‘ambitious’. NZ is a very long way short of this benchmark. But it is not too late to recover from a poor start and to avoid international embarrassment and domestic recrimination. In fact, the government itself refers, on the NZ page on the OGP web site, to the fact that it may amend its Action Plan as more information becomes available.

It is time to do so now, and to demonstrate that NZ is taking its participation in the OGP seriously.

 

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