Absolutely damning

Written By: - Date published: 6:04 pm, December 30th, 2011 - 25 comments
Categories: national/act government, Parliament - Tags: , , ,

Last month, I highlighted the new Internal Administration Circular 11-10 [PDF], which requires immigration officials not to record reasons for their decisions, in violation of both the right to justice and the Public Records Act. I was curious about how the Department of Labour had come up with a policy which apparently violates New Zealand law, so I asked them, requesting all advice and communications on its drafting, including any legal advice on its consistency with the Public Records Act or on Immigration New Zealand’s ability to defend a challenge to its decisions. Today I received a fat packet of emails and drafts – and they are absolutely damning.

The first point to note is that the offending clause was a rather late addition. The first draft of the revised circular took exactly the opposite approach, requiring a full rationale which

should show that the Immigration Officer has taken into consideration all the relevant facts of the case and has come to a logical, reasonable decision based on those facts.

This was then meant to be checked by a second officer to ensure quality decision-making. The first thing to go was the second-party check, after concerns were raised about it not matching existing practice (“officers make their own decisions”). The discussion email [PDF] calls this a “classic quality vs timeliness issue” – and the Department seems to have decided on timeliness.As for the recording of reasons for decisions, according to the timeline provided [DOC], this decision was made in early July after concerns were raised by “Resolutions” [PDF]. The immigration officers concerned wereremarkably frank about their reasons [PDF]:

[Resolutions] strongly feel that including rationale just opens us up to the risk of judicial review and ombudsman complaints.

And the ultimate reason for excluding them?

I wouldn’t want to make it mandatory to put something (rationale) in AMS [DoL’s database] which is likely to generate more work and complaints for branches.

Yes, that’s right: they did it explicitly in an effort to thwart complaints.There were no drafting instructions or Ministerial signoff for this decision. The new circular was developed by a business analyst, who according to the cover email [PDF] decided to “just forge ahead and redraft [it] and see if people scream”. There was no legal advice on its consistency with the Public Records Act, and the matter is never raised in any of the email discussion – though in their cover letter the Department asserts consistency, maintaining that the note that a decision has been made is enough for compliance:

In the Department’s view, the recent guidance around section 61 clearly articulates the most prudent business practice in terms of recording decision making under section 61 given that section 61 decisions are made in an officer’s absolute discretion.

In my view, this conflates prudent business practice around avoiding complaints with prudent business practice around records management. But that, I guess, is ultimately a decision for the Chief Archivist to decide.All-up, we have a government department which has acted deliberately to thwart judicial and Ombudsman oversight, for reasons of its own convenience, apparently in violation of New Zealand law. The question is whether the Minister will act – or whether he will effectively endorse this situation with his silence.

25 comments on “Absolutely damning”

  1. Good work again by IS.  The only description I can come up with is Kafkaesque.

    Hopefully the first person who receives a refusal under section 61 will have the ability to take it on Judicial Review. And seek costs from the Solicitor General.

  2. Ari 2

    A government department’s job is not to avoid complaints, it is to address them where necessary.

  3. randal 3

    disney special.
    hotdogs, candyfloss, popcorn.

  4. Colonial Viper 4

    Screw the Minister, will the MSM act.

  5. QoT 5

    This entire thing is just fucking ridiculous. That the decision was taken at all, that it was taken in this way, that some fucking business analyst just went “oh well, let’s speed things up” … modern capitalist money-over-everything attitudes at work, people. Which I’m sure the usual suspects will think is just fine and dandy since it won’t affect them or their friends personally.

  6. BLiP 6

    In the Department’s view, the recent guidance around section 61 clearly articulates the most prudent business practice in terms of recording decision making under section 61 given that section 61 decisions are made in an officer’s absolute discretion.

    Last time I looked, the DoL was a government department. Has something changed?

    PS: thanks IS, nice work.

  7. Sanctuary 7

    Reading that background material is fascinating. I am struck by the very poor quality of the senior management decision making process. It seems to provide evidence of the alarmingly narrow higher education path typically followed by our managerial class in this country. This Kathy Tait – the “Acting” Team Manager for immigration NZ – freely admits that for her it is “so complicated with so many different things to consider” and it is “quite hard to make decisions” and even though this is an apparently important email she says things like “I remember thinking (what you said) it seemed logical but I can’t remember what it was…” She has most likely, it seems to me, never heard of the public records act or considered anything from outside a very narrow text-book process driven model that she was taught at whatever qualification authority stamped her out. This ignorance doesn’t prevent her from happily taking responsibility for trying to drive a steam roller of perverve convenience through our democratic right to know and their duty of PUBLIC office.

    And that to me is the most depressing revelation of all, that in the 21st century our (presumably) ambitious senior managers are still dangerously narrowly (and poorly) educated technocrats who are ignorant of history, and who don’t understand or seemingly care about the wider implications of their decisions.

  8. Draco T Bastard 8

    …and the Department seems to have decided on timeliness.

    No, they’ve decided upon cost cutting. Having decisions checked costs extra.

    Yes, that’s right: they did it explicitly in an effort to thwart complaints.

    That’s not really surprising. Complaints cost extra as well.

    The question is whether the Minister will act – or whether he will effectively endorse this situation with his silence.

    As this government has been cutting funding to government departments at a guess I’d say that the minister will remain silent.

    • QoT 8.1

      Psht, Draco, they obviously have only the best intentions – after all, if complaints drop, and complaints resolved against the Department drop even further, it must just mean the Department is working perfectly!

      • lprent 8.1.1

        I can see that you are destined for higher things. Saying yes minister for instance….

        • Colonial Viper

          Seriously need a ‘like’ button.

        • QoT

          I can neither confirm nor deny having watched a lot of a certain classic comedy series recently …

          • lprent

            I can neither confirm nor deny that a US cloud server just woke up and requested a torrent of a certain classic comedy series after a ssh bash session talked to it. But VideoEzy might get my cash if they have the first series on the shelf when I get home.

            When are we going to have a online Netflix equivalent here? Then I don’t have to piss around with shopping expeditions and frigging scratched disks, or deluging torrents, or both.

            Damn – now I’m sidetracking. Anyone want to write a guest post?

  9. Last year it was reported shamefully that a fifth of immigration decisions were considered ‘poor and questionable’. That’s 21.8% of around 50,000 permanent applications and around 130,000 temporary applications, but it was okay because it was an improvement on what was previously 29.1%.

    Could you imagine any other government department (say the IRD or even the army) being allowed to have such shameful statistics? It wouldn’t be accepted and it should not be here, especially when you consider that migrants entering applications are often spending over $25,000, giving up their homes and risking their careers by moving here.

    With this error rate migration is not for the faint-hearted.

    So now we see how the department is planning on improving statistics if not performance – by hiding the reasons for decisions. I’ve already come across one associated department which confirmed that it “tended not to write things down” (which caused me all kinds of problems in getting Official Information and lodging complaints with the Ombudsman) and it’s obviously spreading.

    Immigration decisions must be transparent, correct and fair. The right of individuals, no matter what their status, to challenge and question decisions through the proper channels is vital.

    The department has a serious problem with staff retention and people can be on the job working on incredibly important, life-changing applications after less than a weeks training. With the high error rate, lack of experienced staff and importance of the decisions being made it makes perfect sense to have all decisions checked by another officer.

    Rather than accept silence from the Minister I’ll be writing to ask specifically what is to be done about this. The new Minister (Nathan Guy) is an unknown quantity and this will be an interesting opening conversation.


  10. randal 10

    its obvious that we are in the hands of post modern idiots.
    only their own truths count and service is when you get a smile with your latte.
    the nashnil gubmint are no better either.
    being in government for them is seeing how much you can rip off before the next election so really it is a gubmint of noo noo heads.
    its amazing in the age of information how much of it just gets chucked in the dustbin because no one has any desire to exert themselves except for themselves.

  11. just saying 11

    Where is our extremely well-paid Human Rights Commission on issues like this?
    Drawing up wish lists over their expensive lunch meetings? Nibbling canapes at goverment functions? On fact-finding overseas trips?

    Just generally doing sweet bugger-all, while creating the semblance of being a watchdog on behalf of those with little power, in my experience. And yes I know our human rights legislation is pathetic. Still…

    I’d like to see these bullshit watch-licky-puppy organisations axed completely They do much more harm than good in creating the illusion that NZ is doing something about human rights. They won’t be no matter how austere the governments cost-cutting plans, because bleach is an essential government tool for getting out those pesky bloodstains, and covering up the stench of brutality and decay.

    On a more positive note, Idiot Savant is a national treasure.

  12. prism 12

    The standard of government we have is being whiteanted. One wonders how many other departments pass documents around giving themselves permission to run things how they damn well like.

    The absence of civics in schools might be at the bottom of how a ‘business analyst’, who one supposes would be a citizen of this country, can have such a lame idea of how government runs and rules itself. Expedience is not the main motto on our badge of honour.

    • Carol 12.1

      I agree with your comment, prism, except that I would add (word in italics):

      can have such a lame idea of how democratic government runs and rules itself.

      Actually, a democratic government shouldn’t totally be running itself, but should always be accountable to the citizenry/electorate. But these current NActs have shown a widespread disregard for democratic process and the necessary checks and balances. This is at least partly due to the neoliberal mindset that elevates business practices above any other. They aren’t really concerned about democracy or related ethics.

  13. andrew 13

    The way I read the information is that reasons are still going to be written down – and will appear on the file – but not going on the newly designed standard template form. Not too sure how this – not writing down reasons on the template – would reduce complaints, potential review by the Ombudsman or judicial review in the courts, but the story perhaps is not as “damning” as first at sight. Or have I got something wrong? It is a worrisome still, should err on the side of creating and keeping records. If there’s not a clear paper record much harder for a department to respond to an allegation it acted irrationally, arbitrary or without reason. But not creating records, not writing things down is an issue across government. Haven’t checked but I don’t think the Public Records Act comes into it. The Act doesn’t oblige the creation of written records just says records cannot be destroy already created records without a declaration from the Chief Archivist… or it’s a criminal offence. The Act isn’t enforced rigorously internally or externally on government departments. Most officials haven’t heard of something called the “Public Records Act”. Ever seen what goes into those destruction bins without any thought?

    It’s worth praising the Department for the release of the information, perhaps not so much the Department but the officials involved, and particular praise for those (not all) willing for their names also to be released in the email trail. It is very easy for officials to play games with the Official Information Act. Its operation really depends on the integrity of officials. The Act (and state sector itself) provides many routes that allow officials to hide themselves behind and hide information.

    Some departments would not give out such material at first instance. You would have to put up a fight, and still then chances are you still wouldn’t get it. Many departments would have been declined the request (and cited a whole lot of grounds) or the information would have completely sanitised of any detail. I think the willingness and the fact the information was released undercuts the “absolutely damning” claim.

    • GregJ 13.1

      Actually the PRA does oblige the creation of records under Section 17 – Requirement to create and maintain records. This is further expanded on by the mandatory standard S.7: Create and Maintain Standard (available on the Archives New Zealand website).

      The Act is format neutral so other relevant standards are likely to be S8: Electronic Recordkeeping Metadata Standard (another mandatory standard) and S.5: Digital Recordkeeping Standard.

      All Public Offices are subject to audit on compliance with the Act (on a 5 year cycle) and an annual report on Audits has to be tabled in the House by the Minister (the first audits were due to be done in 2010-2011). Most Chief Executives take mentions of their Departments in House reports fairly seriously so if it is bought to ArNZ attention officially and raised with DoL I would have imagined it might cause some reaction. (Actually I know that this has been picked up on various recordkeeping fora and email lists so ArNZ will be unofficially “aware” of this – although I haven’t seen an official response from Archives New Zealand or any indication of whether it has been raised officially with them).

      Records Management staff within Public Offices are generally very well informed on their organisation’s obligations under the Act but whether they are always able to get the ear of senior managers and policy staff is another matter – when the Chief Archivist was also a Departmental Chief Executive they used to be able to talk fairly directly with other Chief Executives about issues like this when they arose – whether that is as easy now the CA is a 3rd tier manager in DIA is another matter.

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