The Free and Frank Series: On Tussle and Taxonomy

02/12/2025

This is the eighth instalment in a series exploring what free and frank advice means in Aotearoa’s constitutional arrangements. Having examined the endurance of free and frank advice through the lens of policy buzzwords, this post responds to the Te Taunaki Public Service Census, whose practitioner comments on free and frank advice have been presented in some quarters as evidence of a system in crisis. I want to suggest a different reading. By the end of this post, I hope to have shown that the tussle visible in those comments is not a sign of dysfunction but of a concept doing its democratic work, and that the bounded disagreement on display is precisely the kind of reflective professional engagement a functioning democracy requires.

The post examines the census comments in their proper context, distinguishes between free and frank advice, free speech, and academic freedom, and considers what it means that practitioners are actively wrestling with a concept that Parliament has never defined.

The Public Service Census asked practitioners what could be improved. They answered honestly. This is now being presented as evidence of malaise and crisis rather than as precisely the kind of reflective professional engagement a functioning democracy requires.

The New Zealand Taxpayers’ Union has obtained, through an official information request, a set of comments from the Te Taunaki Public Service Census concerning free and frank advice and engagement with Ministers.

The comments reveal practitioners actively wrestling with what the concept means, how it operates in practice, and where the pressures lie. One might read these comments as evidence of crisis: that would be a bad-faith misreading.

What the census data actually reveals is a workforce taking seriously a constitutional obligation that statute has never troubled to define. In the comments, we see practitioners thinking carefully about the balance between responsiveness and candour, about how to maintain constructive ministerial relationships whilst discharging professional duties, about what happens when evidence points one direction and political preference points another. This is not dysfunction. This is precisely the kind of reflective engagement one would hope to find in a mature public service grappling with genuinely complex questions that need contextual solutions.

Indeed, the academic literature suggests that free and frank advice functions through its very ambiguity. The concept has been progressively elaborated through legislation, from withholding ground under the Official Information Act to chief executive responsibility under the State Sector Act to the core principle under the Public Service Act 2020, yet Parliament has never specified what “free” or “frank” actually means.

This silence appears deliberate. Any rigid definition would collapse one side of an inherent tension: between democratic accountability and professional judgement, between ministerial authority and expert knowledge, between short-term responsiveness and long-term stewardship.

The census comments, properly understood, in their context, demonstrate the bounded disagreement operating within shared parameters, given the lack of definition. Practitioners differ on where the appropriate balance lies, but they share recognition that a balance must be struck. They invoke common concepts: political neutrality, evidence-based advice, serving the government of the day, even whilst interpreting those concepts differently. This is constitutional health, not constitutional failure. Might I add that there is a certain irony worth noting: the census comments are themselves an exercise in free and frank expression, practitioners offering candid assessments of system pressures in the expectation that such candour would inform improvement rather than generate headlines.

What concerns me more is the apparent assumption that free and frank advice, free speech, and academic freedom are interchangeable goods that require identical protections. They are not.

Free speech concerns the citizen’s relationship with the state and the limits of permissible expression in public discourse. Academic freedom concerns the scholar’s capacity to pursue inquiry without institutional interference, but with the oversight of dedicated and disciplined peer review. Academic freedom has obligations to truth and accuracy that reckons on social media can never hope to match. In the absence of a detailed definition, we know free and frank advice concerns the official’s obligation to provide candid counsel to Ministers within a relationship defined by hierarchy, confidentiality, and mutual obligation: though my Phd offers a much expanded insight. Nonetheless, each operates within distinct institutional contexts, serves different purposes, and generates different tensions.

For the sake of accuracy, an official who provides frank advice that contradicts ministerial preference is not exercising free speech: they are discharging a professional duty within a confidential relationship. The protection afforded to such advice under section 9(2)(g) of the Official Information Act exists precisely because disclosure might chill future candour, not because officials possess some general right to public expression. When that advice is released, as it has been here, we see practitioners thinking through complex questions, expecting their reflections to remain internal. That they were thinking at all should be cause for reassurance rather than alarm.

Organisations that style themselves as watchdogs of public expenditure would do well to develop some facility with these distinctions before wading into constitutional waters they appear not to understand.

The census data, properly understood, demonstrates bounded disagreement operating within shared parameters. Practitioners differ on where the balance lies, but they share recognition that a balance must be struck. The comments are themselves an exercise in free and frank expression: practitioners offering candid assessments in the expectation that such candour would inform improvement. That they were thinking at all should be cause for reassurance, not alarm. But the concept they are wrestling with did not arrive fully formed. It has a statutory whakapapa, and that lineage tells us a great deal.