It is important that concerns about a chilling effect on the rights of public servants are placed in context so that the rights and entitlements that public servants presently enjoy and share with other New Zealanders can be properly acknowledged and duly upheld.

Firstly, Rob Campbell’s role as Chair of Te Whatu Ora is different to the majority of public service roles – given not only the seniority of his position and regular, direct contact with Ministers of the Crown, but also the express application of the code of conduct for crown entity board members under which he operated as the Chair of Te Whatu Ora.

Any commentators, much less public service managers, who might view Rob Campbell’s sacking as somehow setting a precedent for all public servants are not only mistaken but guilty of misreading the standards that do properly apply to public servants when engaging in public debate.

The Public Service Act 2020 expressly provides that public servants have all the rights and freedoms affirmed in the New Zealand Bill of Rights Act which, of course, in turn also confirms both the right to freedom of expression and freedom of association. While the Public Service Commissioner may set “Standards of Integrity and Conduct” for both the public service and Crown entities which seek to enshrine the principle of political neutrality, at the same time guidance documents under the Commissioner’s own hand properly confirm that “public servants have the same rights to freedom of expression and political activity in their private lives as other New Zealanders”.

So, in this context what does “political neutrality” actually look like? Or, to put it another way, how do we reconcile the Public Service Act’s principle of acting in a politically neutral manner with the public servants’ right to freedom of expression and engagement in political activity?

An important guide in this regard are the rights conferred under the Electoral Act, which enable public servants to stand as a candidate for election as a member of Parliament. Under this Act, public servants have a statutory right to take an active part in all aspects of a general election including the policy attacks and occasional mud-slinging at political opponents this may entail – and to return to their job after the election if they are not elected.

This strongly suggests that any demands for political neutrality that might be made by public service bosses following the Rob Campbell saga can only properly apply to public servants’ activities within the workplace and during work time, or potentially to a very small number of senior public servants in comparable roles to that previously undertaken by Rob Campbell. Outside of that context, and as a general rule, public servants should be free to take part in all lawful and reasonable forms of political activity and discourse without fear of repercussion for alleged breach of political neutrality, provided they do so as a private citizen and not as a representative of their workplace.

For the sake of completeness, it should be noted that an employer might still seek to raise concerns relating to a member’s actions outside the workplace on other grounds, for example “breach of organisational values” or “bringing the employer into disrepute”. Therefore, individual members still need to exercise due care and, if in doubt, seek advice or assistance from their organiser.

Jock Lawrie
PSA Legal Officer
2 March 2023

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