Free and Frank Advice: The Public Service Act 2020, a Principle and a Manner, Still Undefined

13/12/2025

I follow free and frank advice into the Public Service Act 2020 and its 2026 amendment, and I set out the pattern of elaboration without definition that runs across four decades of statute.

This is the sixth of twenty posts drawn from my doctoral thesis on free and frank advice in Aotearoa. Having followed the convention through the Official Information Act 1982 and the State Sector Act 1988, I turn here to the Public Service Act 2020, the amendment of 2026 that remade its purpose, and the pattern that runs across all three Acts and both amendments.

The Public Service Act 2020 gave free and frank advice the highest standing it has yet had in the statute book of Aotearoa, and in my reading it is also the Act that shows most plainly how far Parliament will go in elevating the convention while leaving the work of saying what it means to the ministers and officials who give and receive it.

In this post I do three things, and I take them in order: first, I set out what the 2020 Act changed, moving free and frank advice from a responsibility of chief executives to a principle of the public service, and expressing that principle as a manner of advising; second, I look at the Public Service Amendment Act 2026, which reordered the purpose of the public service and the duties of chief executives while leaving the principle in place; and third, I describe the pattern I call elaboration without definition, which runs across all of the statutes I have traced in this series, and which in my view is the reason the inquiry in my thesis had to turn from the texts to the people who carry the convention in practice.

From a responsibility to a principle, and a manner

The 2020 Act elevated free and frank advice from a chief executive responsibility to a public service principle, and the change is one of ownership as much as of status, because a responsibility attaches to a person who can be appointed, appraised and replaced, whereas a principle attaches to the service itself and survives any particular officeholder. The State Sector Amendment Act 2013 had named the tendering of free and frank advice as part of the statutory work of chief executives, and the 2020 Act moved the convention again, placing it in section 12 beside political neutrality, merit-based appointment, open government and stewardship as one of the principles of the public service as a whole (Public Service Act 2020, s. 12). The shared purpose, principles, values and spirit of service of the public service have all, as one account written soon after the Act put it, “been enshrined in the Public Service Act” (Hughes & Scott, 2021, p. 175). What I take from the shift is that the convention became higher in status and wider in reach at one and the same time, and that it was as undefined after the change as it had been before it.

That widening is visible in where the descriptor now sits, because the words free and frank have gone from the provisions that set out what chief executives must do. Where the post-2013 State Sector Act had listed the tendering of free and frank advice to Ministers among the responsibilities of a chief executive, the 2020 Act listed only giving advice to Ministers among their general responsibilities (Public Service Act 2020, s. 52(1)(f)), and the phrase itself appears only at section 12(1)(b), once as the heading of that paragraph and once in its text. The obligation was instead absorbed into the wider principle and spread across the system through the duty of public service leaders to uphold the principles, and to ensure that their agencies uphold them (Public Service Act 2020, s. 12(2)). In my view the convention gained a wider owner in 2020 and, in the same drafting, lost the named officeholder who had carried the words since 2013.

The operative form the Act gives the principle is a manner, and the choice of that word repays attention. Section 12(1)(b) provides that when the public service advises ministers it must do so “in a free and frank manner”, directly after section 12(1)(a) requires it to act in a politically neutral manner, and the drafting therefore regulates how advice is given, how officials engage with ministers and how evidence and judgement are presented, while saying nothing about what makes advice free and frank. The parallel between the two paragraphs is exact in the drafting and uneven in everything else. Political neutrality has gathered round it a body of guidance, convention, standards and case material that an official can consult, whereas an official who wants to know what advising in a free and frank manner requires has the phrase itself, and a policy quality standard that returns them to it (Department of the Prime Minister and Cabinet, 2025). The Act places the two principles side by side, and in my reading it leaves free and frank advice with far less interpretive scaffolding than its neighbour, which is a curious position for a principle Parliament had just raised to its highest standing.

The 2026 amendment: a new purpose and the same silence

The Public Service Amendment Act 2026 tightened the purpose to which section 12 is tied, and it did so by reordering as much as by narrowing. As enacted in 2020, section 11 began with the public service supporting constitutional and democratic government, and went on to name successive governments, the long-term public interest and active citizenship; the replacement section 11 begins instead with supporting the Government to develop and implement its policies, deliver high-quality and efficient public services and meet the needs of New Zealanders, and moves support for constitutional and democratic government to a second paragraph, where it is joined by the spirit of service to the community drawn in from section 13, which the same Act repeals (Public Service Amendment Act 2026). The references to successive governments, the long-term public interest and active citizenship have been dropped. In my view the reordering matters for free and frank advice because the 2020 Act had tied the principle to the purpose, and the purpose it now answers to opens with the Government of the day and leaves the longer horizon unnamed.

The amendment also rearranged who answers for the principles, and where the duty to advise sits among the other duties of chief executives. It replaced section 12(2), so that the duty to uphold the principles, and to ensure that the agencies they lead uphold them, now rests by name with chief executives, the boards of interdepartmental ventures and interdepartmental executive boards, while the principles in section 12(1) were retained, free and frank advice among them. It repealed section 52 and inserted a new section 11A, which restores the name those duties carried in 1988 and again in 2013, the principal responsibilities of chief executives, and moves them to the front of the Act, with giving advice to Ministers first and implementing Ministers’ lawful instructions second (Public Service Act 2020, s. 11A(1)(a), (b), as inserted). The bare advisory duty therefore rises in standing once more and now sits directly above the duty to implement, an adjacency the Australian Public Service Act 1999 had already made when it gathered the giving of advice and the implementing of policy under the single value of responsiveness. My reading is that the amendment remade the purpose and reordered the duties with real care, and that, like every instrument before it, it stayed silent on what free and frank advice is.

Elaboration without definition

Across the whole statutory progression one feature stays constant, and that constancy is the finding of this part of my thesis: free and frank advice is elaborated in each instrument while its working account is left to one side. Three Acts and two amendments, drafted across four decades by different Parliaments for different purposes, each reached for the convention and each declined to say what it required, and what changes from one to the next is only the form the convention takes. It was first a protected interest, then a product to be tendered, then a capability the service must hold, then a duty a named officeholder owes, and finally a manner in which advice is to be given. The Official Information Act 1982 protected the free and frank expression of opinions without indicating what would make an expression free, or frank; the State Sector Act 1988 made the tendering of advice a chief executive’s responsibility without indicating what a chief executive was responsible for tendering; the State Sector Amendment Act 2013 made the capacity to offer free and frank advice to successive governments part of a chief executive’s stewardship, and its tendering to Ministers part of their responsibilities, without indicating what either required; and the Public Service Act 2020 named free and frank advice a public service principle and specified only the manner in which advice is to be given, which is the very term the principle was meant to explain. In my view the sequence reads as a steady rise in standing with no matching change in content.

The silence is unlikely to be a lapse that a further statute might repair, because each Act was drafted with care by people who understood the convention well, and in each case the drafting stopped at the same point. That repetition is what makes the absence worth examining, and worth more than a note in passing, since a gap that appears once can be put down to haste while a gap that appears five times, across governments of different persuasions and reforms with different aims, tends to tell us something about the convention itself. The law gives free and frank advice standing, and it leaves the meaning practitioners give it open. I read that as a choice the constitutional culture of Aotearoa has made again and again, even where no single drafter set out to make it.

Manner is where the statutes leave the inquiry, and I have taken the word seriously in my thesis because it is the statute’s own word, it is the last form the convention takes, and it directs attention to the conduct of practitioners. If free and frank advice is a manner of advising, and if no statute, guidance note or quality standard says what that manner consists of, then its content is supplied every working day by the ministers and officials who give and receive advice, in the judgements they make about what to say, when to say it and how hard to press it. That is the starting point for the empirical work of the thesis, and for the second half of this series. My view is that the statutes, read together, have handed practitioners the defining work while appearing to have done it for them.

In the next post I turn from the statutes to the scholarship, and ask whether the alarm sounders, the measurers and the system mappers supply what the statutes leave out.

References

Department of the Prime Minister and Cabinet. (2025). Policy quality framework. The Policy Project, DPMC.

Hughes, P., & Scott, R. (2021). High autonomy, high alignment: Coordinating a more unified public service. In S. Mazey & J. Richardson (Eds.), Policy-making under pressure: Rethinking the policy process in Aotearoa New Zealand (pp. 170–179). Canterbury University Press.

Public Service Act 2020 (NZ).

Public Service Amendment Act 2026 (NZ), No 23.