I teach a first year course at Victoria University of Wellington about government and the political process in New Zealand.
In “Introduction to Government and Law”, students learn there are rules preventing senior public servants from getting involved in big political debates – as we have recently witnessed with Rob Campbell – and that government ministers aren’t allowed to interfere in some functions of the state, such as telling the Police where to make prosecutions.
It’s essentially a civics course about how our political system works, and hopefully the 1300 students who take the course each year will go off to work in government departments, businesses and other careers understanding the rules of our political system.
Politicians are fond of complaining about a lack of this type of political education amongst the voting public but, as we’ve seen in the last few weeks, so many of our leaders are themselves unaware of basic political rules.
As with Rob Campbell and other wayward senior public servant appointees like Steve Maharey and Ruth Dyson, Nash has pleaded it was just a mistake and, in defending his actions, he showed his ignorance of the rules. But shouldn’t we expect our leaders to have a much better understanding of the political rules about integrity? After all, Nash is no newbie – he’s been a minister since 2017, and an MP for 15 years.
The Rules Stuart Nash broke
The Minister of Police texted his resignation to the Prime Minister yesterday at about 2pm. Up until that point, he had been publicly defending the indefensible, which suggests that, in all likelihood, his resignation was a forced one.
So, what led to this? Two years ago Nash called Police Commissioner Andrew Coster about a decision a judge had made. The case involved a Southlander who had lost his firearms license in 2017, subsequently ignored the gun buyback scheme, and in 2021 was found to possess numerous firearms including an AR-15. On conviction, he was given a sentence of community detention.
Nash believed this judgement was terrible and the offender should have been jailed, so he phoned the Police Commissioner and asked “surely you’re going to appeal this?” Effectively, Nash’s question to the Commissioner about appealing can be seen as an instruction to the Police.
This is a very clear violation of constitutional rules in which government ministers are not allowed to in any way direct the Police in how they carry out their operations, including prosecutions. As Herald political editor Claire Trevett has written, “there are strict rules about not interfering in decisions undertaken by police”, and “there is no such thing as a friendly chat with a Police Commissioner when you’re a minister. It is one of the most politically sensitive relationships that there is.” She says his actions raise “questions about the separation of powers between the three branches of government”.
The Cabinet Manual – the rules for Ministers in how they govern – is very clear about this. Here’s the key section: “Ministers should bear in mind that they have the capacity to exercise considerable influence over the public service. Ministers should take care to ensure that their intentions are not misunderstood, and that they do not influence officials inappropriately, or involve themselves in matters that are not their responsibility.”
Nash has also criticised the judiciary’s decisions, saying on Newstalk ZB yesterday that, in the case of the firearms sentence, “I think that was a terrible decision by the judge.” He also sent a message on the radio to the judiciary, saying judges need to “read the room” on public attitudes to law and order.
The Cabinet Manual is also black and white on this issue, explaining ministers should not comment “adversely on the impartiality, personal views, or ability of any judge”.
By his actions and statements, Nash has shown that he doesn’t understand the constitutional independence of the police and the courts. He doesn’t understand the key rule that ministers cannot interfere with the police.
As Stuff’s political editor Luke Malpass writes today, “citizens deserve to know their justice will be not be influenced by ministers of the Crown calling up the police commissioner and suggesting to them, in any manner, to go harder on someone.”
1News’ Felix Desmarais elaborates on the importance of this, arguing that “ministerial influence over police operational matters is the first step on the long road to a police state. There must be a separation of powers, both real and perceived. It’s one of the fragile and precious threads upholding democracy. That’s why it’s codified – the Cabinet Manual is painfully, explicitly clear”.
Mateship problem in New Zealand politics
There is a cosiness in New Zealand politics that arises partly from the fact that we are a small and intimate society. It means close connections between powerful people are common, including between politicians, businesspeople, and public servants. It makes for a relaxed politics, in which integrity rules aren’t as strongly observed as in other countries.
The problem is that many of our leaders are “mates” with each other – across the many different spheres of power and influence.
Ironically this mateship was even advertised by Stuart Nash in his defence of his violation of the rules. When confronted by the media about his phone call to the Police Commissioner, Nash explained: “I was chewing the fat with a guy who was a mate”.
Nash elaborated on how this wasn’t a big deal to get a call from a “mate”: “The Police Commissioner is a very enabled, very smart man who can make his own decisions, when he gets a mate calling him, questioning about the veracity of a case, it’s up to him to determine.”
Furthermore, the Commissioner himself essentially backed this up yesterday, downplaying the whole conversation: “I regarded the phone call as a venting of that frustration, and nothing more. I felt this was a rhetorical question, not a request, and I did not take any action following the phone call.”
Nash should be fired from Cabinet
The Prime Minister has decided not to fire Nash from Cabinet completely, allowing him to keep his other ministerial roles of economic development, forestry and oceans and fisheries. Hipkins has defended keeping Nash on as a minister saying that the loss of the Police portfolio is “proportionate” enough as a punishment.
But it won’t be enough to satisfy others, because Nash’s mistake wasn’t made in his role as Police Minister, but as a minister in general.
Leading constitutional academic Andrew Geddis has therefore come out this morning with a call on the AM Show for Nash to be fired from Cabinet: “I think he breached ministerial standards and… he doesn’t seem to understand what those rules are or why they’re there… Frankly, I think he’s also ruled himself as being suitable to be a minister. I think he probably should be gone from Cabinet altogether.”
Former minister Peter Dunne also went on the AM Show to say that Nash has to go: “I think he should’ve resigned altogether for this simple reason: the Cabinet manual makes it clear that you don’t interfere with court decisions and the police have constabulary independence – he breached both those counts”.
Dunne credits Hipkins with moving with speed on Nash’s Police portfolio, but says that “the timidity of the judgment” in leaving Nash in his overall job, will distract from that and won’t allow the Government to “move on” from the issue.
Newstalk ZB’s Heather du Plessis-Allan also argues today that Nash is turning into a liability for the Labour Government, pointing out that recently, and especially since the cyclone, he’s “done some weird stuff”.
Here’s du Plessis-Allan’s list of Nash’s mistakes: “He took umbrage at the warning that power might be out for two weeks after the cyclone, he said it was alarmist and over the top based on who knows what, because some people are without power and it’s been a month. His response to gang crime was to plead with the gangs to pull their heads in. He defended the forestry companies saying most of the slash wasn’t theirs when it actually overwhelmingly is.”
She argues that Nash is likely to create more embarrassment in his other portfolios.
Similarly, Luke Malpass questions whether Hipkins can allow Nash to stay in Cabinet: “His judgement has to be in question, and it is difficult to see how he can continue to function effectively when he was prepared to make the call he did and then not realise he shouldn’t have made it.”
But Malpass points out that although Nash is “not regarded as a particularly effective minister”, he’s been useful for Labour because he’s got a persona as “an important jack-the-lad type figure in a Labour Party that has had issues in the past appealing to men”.
Other commentators say that Nash has become a liability because of his “bravado”. Newshub political editor Jenna Lynch reports: “Beehive sources behind the scenes were in disbelief, saying the now former Police Minister had ‘too much testosterone’ and – brutally – that his actions were ‘dumb as f***’.”
Newsroom political editor Jo Moir argues today that Hipkins would be wise to reconsider keeping Nash on, as he has failed to “kill off” the controversy with his halfway measure of only taking away his Police role. She thinks he needs to go completely, and that the PM should announce another reshuffle: “Hipkins has done nothing to respond to Nash’s inability to identify that his actions were unwise, unprofessional, and made him unfit for any ministerial role. If after almost six years as a minister, Nash still doesn’t know what breaching the Cabinet manual looks like how can Hipkins trust him not to do it again?”
Replacement for Nash
Megan Woods has been temporarily put in charge of the Police portfolio, but is unlikely to continue in it. According to Jenna Lynch, Hipkins is going to make a decision on his permanent replacement before Monday.
It will have to be a very senior Cabinet minister, and one who is up to the challenge of convincing the public that Labour is tough enough on law and order. The leading contender for this is Andrew Little, who is currently without any heavy portfolios.
Lynch reports, “Little’s already got six portfolios – Defence, GCSB, NZSIS, Public Service, Treaty Negotiations and the Terror Attack inquiry – but a lot of those would work well with Police.” She points out that Hipkins will need a very safe pair of hands, as the next appointment will be the fifth Police Minister in less than a year.
Lynch also points to Local Government Minister Kieran McAnulty as a possibility but notes McAnulty himself has stated he’s “already got a lot on”, especially with Emergency Management and Three Waters. But if Hipkins really wants to replace Nash with someone with a similar conservative, provincial and straight-talking persona, then McAnulty will be the best choice.
Integrity problems not limited to Nash
Regardless of who is chosen as the Police Minister, or whether Nash is allowed to stay on in Cabinet, the Opposition will – and should – keep up pressure on the Government’s failings in terms of political integrity.
Of course, this is not a problem that is unique to the current Labour Government. When National was last in government John Key was forced to fire Maurice Williamson in 2014 for also calling the Police to enquire what they were doing about a particular investigation involving a financial donor to the National Party.
What’s more, National’s own integrity is still under question over MP Barbara Kuriger’s misuse of her authority in her campaign with the Ministry for Primary Industries’ in which she has inappropriately been pursuing her family’s own case relating to animal cruelty charges. As Jo Moir points out today, “Luxon will need to give some serious thought to how tough he goes on Hipkins keeping Nash in other roles, when Kuriger’s lapse of judgment was just as serious and over a more prolonged period.”
Conflicts of interest are too often coming up on all sides of politics. Perhaps it’s time for all MPs and senior public officials to sign up for a civics class, so that they can be reacquainted with the rules about integrity in public office.
Dr Bryce Edwards is Political Analyst in Residence at Victoria University of Wellington. He is the director of the Democracy Project.