As regular readers will know I have been uneasy about whether the Minister of Finance’s recent appointment of Grant Spencer as acting Governor of the Reserve Bank (while pragmatic) is in fact lawful. I dealt with the issue first on the day the appointment was announced, and again when the Bank’s Board, the Treasury, and the Minister of Finance released material in response to my OIA request.
What made me most uneasy is that there was no suggestion in any of the papers – whether the Board’s recommendation to the Minister, the Minister’s Cabinet paper, or in any of the various Treasury papers – that officials, the Board, or the Minister had even considered seriously the lawfulness of such an appointment. There is no summary of any legal advice in any of the papers, and no reference to the issue. This is so even though the Act quite clearly makes the Policy Targets Agreement (PTA) the centrepiece of the balance between autonomy and accountability, and yet it makes no reference to the possibility of a PTA in a case where an acting Governor is appointed after a Governor’s term, and that Governor’s PTA, expires. As an expression of good intent, the Minister of Finance and the incoming acting Governor have indicated that they expect policy will continue to be conducted according to the current PTA, but……(a) the whole point of the acting appointment is that Grant Spencer will take office a few days after the election (so the current Minister of Finance may be irrelevant) and (b) none of this is legally binding, even though the monetary policy provisions of the Act are built around quite detailed, and legally binding, rules.
All three agencies/people noted that they had withheld legal advice (from the Reserve Bank’s in-house lawyer and from Crown Law). That wasn’t a surprise. Protection of legal professional privilege is a grounds on which material can be withheld under the OIA. But it is not an absolute grounds, and any possibility of withholding such material on that ground must first consider whether the public interest is such that the material should be released. Recall that the whole point of the OIA is to allow more effective public scrutinty, accountability, and participation in public affairs.
I was initially inclined to let the matter lie. But on further reflection, and having a look at some of the material the Ombudsman has put out in recent years (and a report of an even more recent decision), in which it has been ruled that either legal advice, or a summary of it, should be released, I have decided to lodge an appeal with the Ombudsman in this case. It isn’t a case where, for example, the legal advice is contingent on facts known only to the parties commissioning the advice. The relevant facts are all in the public domain already. All that is being protected is the assessment of the interpretation of legislation on which powerful government entities are acting/advising. If their interpretation of the acting Governor provisions is robust – and it may well be – then the Act is less robust – in ensuring that the monetary policy decisionmaker is at arms-length from the Minister (not eg subject to six monthly rollovers), and yet is at all times subject to a legally binding accountability framework – than had previously been thought. There is a clear public interest in us being aware of any analysis the government, the Board, and the Treasury are relying on in making an appointment of this sort. They act on those interpretations, and in so doing create “facts on the ground”.
I suppose it will take some considerable time for the Ombudsman’s office to get to this request – perhaps even after the acting Governor’s term has ended – but with the possibility of reviews to the Reserve Bank Act governance provisions in the next couple of years, it would still be valuable for this advice and intepretation (in full or in summary) to be put in the public domain. This is, after all, about the appointment and accountability provisions for the most powerful unelected public office in New Zealand.
On another matter altogther, I noted the other day that one of my readers, and periodic commenter, Blair Pritchard had published his own set of policy proposals for New Zealand. Blair sets out seven policy goals and 15 policy proposals under the heading What’s a platform Kiwi Millenials could all get behind? There is lots to like in his agenda – and he graciously refers readers to some of my ideas/analysis – although I’m sure most people, even non-millenials, will also find things to strongly disagree with (for me, cycleways and compulsory savings – although I’m also sceptical of nominal GDP targeting). But I’d commend it to readers as a serious attempt to think about what steps might make a real and positive difference in tackling the challenges facing New Zealand. And I really must get round to a post on a Nordic approach to taxing capital income – one of the topics that has been on my list for two years now, and never quite made it to the top. Cutting company taxes is the headline-grabbing option, and it would make quite a difference to potential foreign investors, but for New Zealanders pondering establishing and expanding businesses here, the company tax rate is much less important than the final rate of taxation on capital income which, in an imputation system, is determined by the personal income tax scale. The Nordic approach quite openly sets out to tax capital income more lightly than labour income. It isn’t a politically popular direction at present, but is the direction we should be heading, if we want to give ourselves the best chance of closing those persistent productivity chasms.