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Friends aside, Fletcher fitted the bill

THE DOMINION POST - TUESDAY 9 APRIL 2013


Controversy surrounds the process followed to appoint Ian Fletcher as Director of the Government Communications and Security Bureau (GCSB). A lot has been made of the fact that Prime Minister John Key and Fletcher had a limited family friendship and that Key phoned Fletcher to suggest he apply for the job.

New Zealand is a very small country and it is part of everyday life to come across people that one has a connection to. Be it family friends, friends, university colleagues, church parishioners and the like, many of us will have had that experience. But this can be mitigated. Therefore in the case of Fletcher’s appointment, what is important to look at are the principles and procedures that guide public service appointments.

These are contained in the State Sector Act and, while the appointment of the GCSB Director is not governed by the same requirements as other public service positions, the procedures nevertheless capture common sense and should be followed.

Generally for Chief Executive positions, the State Services Commissioner is required under the Act to ensure suitably qualified individuals are informed of the vacancy and given a chance to apply. The Commissioner is then tasked with constituting a panel that will consider applicants for the vacant position.

The panel must consist of the Commissioner and a Deputy Commissioner of the State Services Commission, as well as one or more persons appointed after consultation with the relevant Minister.

Clearly there is a need for there to be a working relationship between the appointee and the Minister, hence the ability of the Minister to appoint one or more to the panel.

The panel deliberates and then the Commisioner decides on the person to be recommended to the Minister for appointment.

In coming to this decision, there is a list of considerations that the panel is required to be mindful of.

These include that the individual can discharge the responsibilities of their position, that they will maintain appropriate standards of integrity and conduct, and that they will promote efficiency in the department. Newspaper articles have mentioned that an individual with change-management skills was sought by the Commissioner for the GCSB role.

The name, qualifications and reasons for recommending the individual are given to the Minister and the government of the day effectively accepts or rejects the recommendation.

If the person is rejected, the Government can appoint someone else itself. The GCSB legislation does not describe a process for appointing the Director of the GCSB. It is obvious the state sector appointment process was generally followed here, lthough it was not binding.

It seems that what transpired was that Rennie was not satisfied with the initial shortlist of candidates for the Director position that he was presented with. Rennie communicated his view to the Prime Minister, who agreed. This led to alternative candidates being floated; one of whom was Fletcher.

The Prime Minister contacted Fletcher and suggested he consider applying by contacting Sir Maarten Wevers, Chief Executive of the Department of Prime Minister and Cabinet.

Fletcher was interviewed by a panel convened by Rennie and recommended for appointment.

As they say, the rest is history.

The panel that recommended Fletcher’s appointment as Director of the GCSB was comprised of Rennie, Deputy State Services Commissioner Helen Quilter, Wevers, and the then-Secretary of Defence, John McKinnon.

Readers who know those individuals would, I’m sure, agree with me that the panel was impeccable. One would have confidence in both the integrity and the judgment of the panel.

None of this appears exceptional and rather seems pretty straightforward.

Fletcher was considered by a panel of experienced senior public servants and its recommendation to appoint him was accepted by the Prime Minister.

Some criticism has been made that the Prime Minister has not been direct in the way he has answered questions about the appointment process. It is alleged he ought to have volunteered the fact that he telephoned Fletcher and suggested that he put his name forward for the role.

The Opposition, through deputy leader Grant Robertson, is doing what Oppositions traditionally do and indeed have to do. He is probing the Government’s leadership for weakness. Any errors made will be pounced upon. Undermining of a government adds to the momentum the Opposition seeks to create that will eventually, it hopes, lead to a change in government. That is politics.

From a legal point of view, it seems no wrong has been done.

Out of interest, if a candidate misses out on a job and that person is an internal applicant then they have rights under employment legislation to challenge their non-appointment by way of personal grievance and other remedies.

A total outsider applying for a public role has limited rights to challenge an appointment. If they think they were unlawfully discriminated against, the Human Rights Act gives them a remedy.

Failing that, perhaps, at great expense, they can apply for a judicial review.

Nothing illegal appears to have occurred.

Issues of memory and judgement do emerge but politics and the media can feast on that.

Cullen - The Employment Law Firm is one of only eleven law firms in New Zealand approved to provide employment law services to Government and the public sector.

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