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PM’s real GCSB appointment problem – no constitutional confidence

It's interesting to see even the sophisticated Peter Cresswell parrotting the establishment line that ministers should stay out of appointing their own direct reports.

Disconcertingly, he casually throws in "separation of powers" as if John Key has infringed some constitutional principle with his phone call to alert Ian Fletcher to the GCSB director job.

Peter, that convention/principle urges separation and mutual respect and a balance between the Executive, the Judiciary, and the Legislature.

The Prime Minister is the leader of the Executive. He should have a vital interest in who reports to him, in every portfolio.

The current convention that Ministers get a veto power after an independent vetting process is not prejudiced by a Minister shoulder tapping candidates to suggest they put themselves forward. Separation of powers is an important constitutional protection. It is cheapened by attempted application to criticise actions entirely confined to the Executive.

The weak link in our defence of appointment quality is the SSC. If the SSC does not have enough mana to insist on its standards in the vetting and short-listing there is ample room for the appointment of incompetent cronies whatever the formal restrictions on Ministers.

The media lapping up the opposition line should think to ask Mr Robertson "what would stop a future government ensuring that a third party does the shoulder tapping of favoured candidates, if it was true that a Minister should not do it directly?".

Our media promote pathetic debate.

The PM may or may not have a political problem over the GCSB appointment, made awkward because that body's constituting law did not authorise its Dotcom surveillance.

But there is no reason for him to bow to the media consensus that it would be improper for him to have shoulder tapped someone he knew and trusted to head that body, provided (as appears to be the case) that independent scrutiny confirmed the candidate's credentials. A PM confident in his knowledge of the constitution (or confident in his advisers on such matters) would simply dismiss the media parrotting of the left allegations of cronyism, and counter-attack, with a list of the awful fellow traveller appointments made by the previous government.

He would be doing us all a service too, if he counter-attacked the theory that politicians should not be choosing their key administrators and advisors. That theory is a not-so-subtle attempt in the eternal establishment campaign to nobble democracy. Academics, professionals, and others who worm their way to high salaries and influence by promoting complex procedure, are naturally hostile to the crude changes that democracy entails. We dump the powerful at elections because we want change. We want to upset the status quo.

The establishment are instinctively threatened by that. So lawyers and bureacrats and priests and journalists find ways to make it improper for democratically elected leaders to change very much beneath them.

It is futile and unfair to expect any leader to be effective without the power to select managers and advisers they can trust to act on their programme. It is trite knowledge from business that few can ever reform themselves from within, even in the face of complete collapse. Real change almost invariably requires the injection of new executive management, and implict trust between the leaders and those who must develop and implement detailed action plans.

So the theory that politicians should somehow eschew influence on the appointment of their primary agents to implement the policies for which they are elected, almost guarantees a high degree of frustration and failure for all but the most charismatic and determined elected leaders.

Of course it is justified by high-minded objectives. Cronyism can be a curse. It is useful in our system to give the bureacracy the power to slow and to temper democratic swings of policy. Independent vetting and opportunities to block demonstrably unsuitable appointments will maintain those protections.

But we badly need a PM with the mana and the knowledge and the confidence to put constitutionally dangerous elite ninnies firmly back in their boxes.

Former ACT MP turned National Party candidate Stephen Franks is principal of commercial and public law firm Franks and Ogilvie. He blogs at www.stephenfranks.co.nz.

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Comments and questions
18

If there is a perception that a government's mandate is in question, then all its other activities fall into question. Shoulder tapping is only the latest in a long line of nepotistic actions from this government. (Tax cuts for the rich, subsidies and bailouts for business mates, golden handshakes to "elites", huge pay increases to company directors etc etc.)

Last election National won 47.3% of the vote; 59 of the 121 seats in the house. They were supported by only 36% of eligible voters with many voters not bothering the ballot box. By jiggery pokery in Epsom and Ohariu they squeezed through a majority and then sucked in petulant ex Labour Tariana Turia and her naive and doomed Maori Party as a bit of back up.

National need to be seen as acting in the best interests of ALL New Zealander's or risk seriously dividing the country as only National can do. Remember 1981?

Giving the military powers to arrest New Zealand citizens who are protesting what are in effect a minority governments policies is a bad look. Couple this to the Prime Minister appointing a mate as the chief GCSB spy and things don't look good for democracy in this country...

I presume things will only look good for democracy in this country if it returns a Leftist Government for you. No National Government will ever be seen as acting in the best interests of all New Zealanders by the blinkered Left. Get used to it.

And, of course, no Labour government will ever be considered as acting in New Zealanders' best interests by you either...?

Ain't that the truth.

No, Alan, you are wrong. Democracy in this country will look good for me when any government takes cognisance of its level of support in the community (In this case 36% of eligible voters) when it implements extreme policies such as asset sales, giving the military the power to arrest NZ citizens or plan mines and oil wells in national parks. If they are in doubt, if they have any claim to be acting democratically, then they should hold a referendum. This government is not acting democratically. They are acting to protect the interests of a minority.

You can be the best political spinner in the world, Alan, but you can't spin this one. Take a break because you are becoming to sound ridiculous, like John Key himself.

Your posting is rubbish - full of politically motivated prejudicial comments of little substance. Stephen Franks has made a good point, and you have avoided commenting intelligently. You clearly support a left wing Labour/Greens government, which you are entitled to do, but don't expect your comments to taken seriously by a posting like this.

Lindsay, exactly which parts of my post is "rubbish" Every comment I have made is able to be substantiated with evidence; the sort of thing that one- eyed, prejudiced fools like you have learned well to ignore. Go and have a cup of tea with Lord Monkton. I think you would get on well.

Another vacuous comment from you. Your views are just speculation. At least I am prepared to put my name on my views. Why don't you do the same, instead of hiding behind "Anonymous". I have absolutely no respect for anyone who posts as "Anonymous".

Lindsay - as well as that position may be, it does not look good when you are asked to be specific and you simply switch to ad hominum. It makes me lose respect for you.

"Our media promote pathetic debate."

"Academics, professionals, and others who worm their way to high salaries and influence by promoting complex procedure, are naturally hostile to the crude changes that democracy entails."

Never were truer words spoken.

The problem is the halfway system we now have. Previously a strong, experienced, qualified and independent (appointed by the GG) SSC made appointments independently. Now Ministers can veto so they have input (and the recent record of a weakened SSC justifies their input). The next step probably makes the most sense these days - give up the idea of independent public service leadership and have Ministers appoint the CEOs who resign on a change in Government.

So the long short list had not on single credible candidate? And Key rings one mate, for criteria other than that posted in the Job description, and that one person is perfect? [Open fridge, reaches for bottle and opens it] Yeah Right.

I am not normally a Stephen Franks fan but on this occasion I think he is absolutely correct. If only the PM would take a stronger line on the alarming trend towards separatism being forced on him by the alliance with the Maori Party and the overly liberal approach personified by Chris Finlayson.

The spooks got off the leash when the Yanks came calling for Mr. Dotcom ... as far as I can see John Key is doing his best to rein them in.

But they are slippery little buggers, they'll do their level best to undermine anybody who threatens their secret bureaucratic existence of failure ... John should watch his back - this all smells too much like a typical Wellington stitch up from the snitches.

One of the areas I would agree with Chris Trotter is that the real division in NZ politics does not lie between the Nats and Labour but between the right and left in Labour. My own view is that Grosser, English and Smith are to the left of the centre of gravity in the Clark govt and that Shearer, Parker, Cosgrave and even Cunliffe are to the right of most of the Nat Cabinet. Collins is simply a backcountry conservative with none of the libertarian instincts of Shipley and Richardson. Stephen Franks is like Collins - he just has 20 more IQ points.
The intervention of the former chief of the air force, CDS and head of the GCSB in my view reflects a concern in the elite military elements and intelligence community that NZ is moving far too fast and enthusiastically into the Chinese orbit. While I agree that Key needs his own man and influence in the GCSB, declartions of NZ independence or Chinese allignment cannot be allowed. I note that in the last week, overnight broadcasting of the BBC on TV One has ended, that Al Jazzera hours on Face are far less than on Triangle and the latest renovations of the Auckland public library saw the continual BBC screening in the public gallery abandoned for music videos.

Question: The GCSB employs about 300. But what do these bods actually do, to fill the day? A bit like the rocky, guano-depleted island of Nauru having an MI-5 and MI-6, isn't it?

I mean, no one can pack a mean cut-lunch like any GCSB staffer can; and their prowess for neatly Clad-wrapping a peeled-and-quartered apple for morning tea, is folklore. Oh, yeah -- they do keep a vigilant watch over the million-dollar duvet covers that enshroud the two spy domes in Waihopai.

Can't blame them for breaking the rules to go after Kim Dotcom when they're bored, rigid.

I don't know why Franks gets air time on the NBR.