The Free and Frank Series: A Non-Domination Guardrail?

07/02/2026

This is the fourteenth instalment in a series exploring what free and frank advice means in Aotearoa’s institutional arrangements. Having tested the advisory relationship against consent theory and rationalism and found both insufficient, I turn this week to a third tradition: civic republicanism and Philip Pettit (1997)’s (1997) concept of freedom as non-domination. By the end of this post, I hope to have shown that the republican framework reframes the question from “who authorised this power?” to “is this power arbitrary?”, and that non-domination maps onto Te Tiriti o Waitangi, and onto rangatiratanga in particular, in ways that neither consent theory nor rationalism can capture.

This post proceeds in four stages. It introduces the republican concept of non-domination through Pettit’s (1997) foundational work. It applies this frame to the position of officials after the 1980s reforms, tracing how the same programme that increased their vulnerability also severed their connection to implementation knowledge. It explores how non-domination maps onto rangatiratanga and reframes advice about Te Tiriti interests. It closes with the limits of the republican frame, pointing toward the trust-based approach that follows.

There is an old story, recounted by Philip Pettit (1997), about a slave with a kindly master. The master never interferes with the slave’s choices; he permits the slave to come and go, to speak freely, to pursue projects of his own devising. By any measure of actual interference, the slave enjoys considerable liberty. Yet we would not call the slave free. The master’s forbearance is a gift that can be withdrawn at any moment, and the slave knows this. He must always calibrate his conduct to avoid giving offence, must live in the shadow of a power that could, if it chose, constrain him utterly.

This intuition, that freedom requires something more than the mere absence of interference, sits at the heart of the civic republican tradition. Domination, in Pettit’s (1997) formulation, is the capacity for arbitrary interference: the ability to intervene in someone’s choices without being constrained to attend to their interests. Power is arbitrary when the powerful can act as they please, and when no institutional mechanism forces them to take into account what those subject to their power actually need or want. The slave is dominated even when the master never interferes, because nothing prevents the master from interfering should his mood change.

The distinction shifts our attention. The question becomes not whether authority derives from consent or from expertise tested in public, but whether the institutional arrangements within which authority operates prevent that authority from becoming arbitrary.

This post proceeds in four stages. First, I introduce the republican concept of non-domination through Pettit’s foundational work, distinguishing it from the traditions we have examined in previous weeks. Second, I apply this frame to the position of officials after the 1980s reforms, tracing how the same programme that increased their vulnerability to ministerial power also severed their connection to the implementation knowledge that makes advice worth hearing, and what happens when ministers, sensing this gap, turn elsewhere. Third, I explore how non-domination maps onto rangatiratanga and what this reframing means for advice that touches on Te Tiriti and Māori interests. Finally, I note the limits of the republican frame, which will point us toward the trust-based approaches I examine next week.

The official under arbitrary power

Consider, then, the position of the contemporary public servant. The classical Westminster bargain, as we traced earlier in this series, offered officials permanence, anonymity, and professional autonomy (Hood & Lodge, 2006). These were not merely conditions of employment; they functioned as protections against arbitrary ministerial power.

The permanent secretary, who could not be dismissed at the minister’s pleasure, had the security to speak uncomfortable truths. Anonymity kept officials out of political controversy; professional autonomy granted weight to expert judgement that ministers were expected to take seriously, even when it proved inconvenient.

The reforms of the 1980s dismantled much of this architecture. The State Sector Act 1988 introduced fixed-term contracts for chief executives, making career continuity dependent on ministerial satisfaction. Performance agreements that measured success substantially by reference to ministerial assessment created incentives, not always conscious, but powerful nonetheless, for alignment with political preferences (Norman, 2003). In republican terms, these reforms increased officials’ exposure to ministerial domination. Not necessarily interference; ministers might never actually punish officials who offered unwelcome advice. But the capacity for interference, unconstrained by institutional protection, is always there post-80s reform.

The official on a fixed-term contract must always have one eye on renewal and reappointment. Formally, appointment and reappointment decisions sit with the State Services Commissioner, not ministers. But this formal insulation does not exhaust the reality of power. Ministerial confidence is politically salient within the appointment system, and officials know it. They may enjoy considerable practical latitude, and many do, yet their security is no longer anchored in tenure but mediated through an evaluative ecology in which ministerial satisfaction matters. In republican terms, this is precisely the condition Pettit describes: not necessarily interference, but exposure to it. Freedom that depends on continued confidence rather than institutional guarantee remains contingent. And contingency, not malice, is the core problem.

The severed feedback loop

Furthermore, the same reform programme that increased officials’ vulnerability also restructured the state, further complicating the advisory relationship. A core architectural move of the period was the disaggregation of policy advice from operational delivery. Functions that had once been integrated within departments were separated out and placed at arm’s length from ministers, producing a rapidly expanding non-public-service executive. Over time, this terrain would be rationalised into the Crown entity categories formalised in the Crown Entities Act 2004, but the underlying design logic was already present in the late 1980s and 1990s: distance operations from day-to-day politics. The intended effect was to insulate delivery from political whim: a republican move, even if not articulated in those terms.

The consequence, however, was to constrain a vital feedback loop. By structurally separating policy advisory systems from delivery systems, the reforms reduced the routine circulation of operational knowledge into the core policy advisory function. This did not eliminate such knowledge; secondments, inter-agency groups, and informal networks persisted, but it did make the integration of implementation reality less automatic, more fragile, and more dependent on individuals and their discretionary effort rather than on institutional design. The system’s capacity to provide analysis and advice grounded in what would actually work was constrained not by bad faith or lack of capability, but by the architecture of the state itself.

Ministers who sensed this gap, who suspected they were receiving advice untethered from practical reality, turned elsewhere. Richard Mulgan (2012), in his address to IPANZ, warned that this was already happening and would only intensify if the public service could not provide high-quality advice on implementing political will and policy intent. Looking back, he was not wrong, and his warning was probably not heeded. Most of the policy advisory systems are crowded: with academics, with think tanks, with sector groups, with impacted communities, with lobbyists; all offering analysis and advice that compete with departmental counsel.

But can non-state actors provide free and frank advice? I hypothesise, probably not in the sense that matters here, though I am cautious, because we lack a settled definition of the term. Non-state actors can certainly be candid. What they cannot plausibly supply is advice shaped by public service obligations: a specific code of conduct, neutrality across governments, stewardship over time, integration of legality, fiscal constraint, and implementation feasibility, and accountability to ministers and Parliament rather than to members, funders, or causes. Non-state actors speak for themselves, or for those they represent, not from within the peculiar role morality of the public service. In republican terms, ministers who loosen their informational dependence on officials may find themselves dependent instead on actors whose interests are less visible, whose agendas are not institutionally required to be disclosed, and, if I may be so bold, whose ideas are unimplementable.

Free and frank advice, in this republican reading, becomes something more than a duty officials owe to ministers. It is a mechanism for reducing mutual domination: but, and it is an important but, only if officials can actually provide it. This requires both institutional protection from career consequences for freeness and frankness and institutional connection to the knowledge that makes advice worth hearing. The reforms in the 1980s potentially compromised both.

Te Tiriti as non-domination

I have been building toward this framing across the series because non-domination, I want to suggest, maps onto Te Tiriti o Waitangi in ways that neither consent theory nor rationalism can capture.

Rangatiratanga, the authority that Article Two guaranteed to the Te Ao Māori institutions over their lands, villages, and taonga, is, at its heart, a concept of non-domination. It describes not merely autonomy in the liberal sense but freedom from arbitrary Crown interference in matters that Māori reserved to themselves. This is not to collapse rangatiratanga into a Western theoretical category, but to note a partial and productive resonance: both are centrally concerned with freedom secured against arbitrary power, rather than freedom granted at another’s discretion.

The promise of Te Tiriti was not that the Crown would never affect Māori interests; kāwanatanga necessarily involves good governance for everyone: not just the settlers, but everyone it touches. The promise was that Crown authority would not be exercised arbitrarily over domains where rangatiratanga was retained: that it would be constrained to attend to Māori interests rather than proceeding on the Crown’s own will alone. I am happy to debate how articles one and two interact, but we have to start with the fact that they are always in tension, and the governance part assumes good governance.

The breach of Te Tiriti, documented across nearly two centuries of history and fifty years of Waitangi Tribunal jurisprudence, is precisely a history of domination in the republican sense (Waitangi Tribunal, 2011). The Native Land Court, the suppression of te reo, the systematic erosion of tribal authority and economic base: each represents the power of the state being exercised, often without constraint, to serve majoritarian parliamentary interests, as opposed to those who are made subject to its exercise.

This reframes what free and frank advice requires when Te Tiriti and Māori interests are at stake. Officials advising on such matters operate not merely within the minister-official relationship but within a constitutional space where the Crown’s authority is itself conditional.

Advice that proceeds as though the Crown possesses unlimited authority, and that fails to ask whether and how rangatiratanga applies, and therefore whether the proposed action would constitute domination rather than legitimate good governance, assumes an answer to the foundational question of legitimate authority without acknowledging it is doing so.

The limits of the frame

The republican tradition, for all its usefulness here, carries its own limitations. Its emphasis on institutional mechanisms can tend toward the mechanistic, as though constitutional design were an engineering problem. It may understate the importance of relationships, of trust built through repeated interaction, of the interpretive work through which officials and ministers come to understand what the other actually needs.

In practice, this means republican theory may struggle to account for moments when the legitimacy question is not ‘has power been constrained by institutional checks?’ but ‘whose authority applies here in the first place?’

When officials advise on matters touching rangatiratanga, the prior question is whether this matter falls within kāwanatanga at all. This cannot be answered by pointing to institutional mechanisms that prevent arbitrary Crown action. Those mechanisms presume Crown jurisdiction. A proper balancing of articles one and two of Te Tiriti asks whether that presumption holds. For, in my reading of balanced article interpretation, not everything falls within kāwanatanga, and many questions that Te Ao Māori asks and answers for itself are best resolved without Crown involvement at all.

We have now examined three traditions, and each has revealed something whilst leaving other things in shadow. Perhaps these tensions reflect not a theoretical failure but the genuinely difficult position that free and frank advice occupies: a space that must simultaneously accommodate democratic accountability, epistemic competence, and freedom from domination. Next week, I turn to a fourth approach: theories of trust, which ask not about authority’s source or its constraints, but about the relational conditions that make candid advice possible at all.

Next week

Three traditions have now been tested against the advisory relationship, and each has revealed something while leaving others in the shadows. Consent theory cannot resolve the tension it generates. Rationalism risks epistocracy. Civic republicanism reframes the question productively but may understate the importance of the relational conditions that make candid advice possible at all. Next week, we turn to a fourth approach: theories of trust, which ask not about authority’s source or its constraints but about the relational substrate on which the entire advisory relationship depends.

References

Boston, J., Martin, J., Pallot, J., & Walsh, P. (1996). Public management: The New Zealand model. Oxford University Press.

Hood, C., & Lodge, M. (2006). The politics of public service bargains: Reward, competency, loyalty—and blame. Oxford University Press.

Mulgan, R. (2012, May 30). What future for free and frank advice? [Address to IPANZ]. Wellington, New Zealand.

Norman, R. (2003). Obedient servants? Management freedoms and accountabilities in the New Zealand public sector. Victoria University Press.

Pettit, P. (1997). Republicanism: A theory of freedom and government. Oxford University Press.

Skinner, Q. (1998). Liberty before liberalism. Cambridge University Press.

State Sector Act 1988 (NZ).

Waitangi Tribunal. (2011). Ko Aotearoa tēnei: A report into claims concerning New Zealand law and policy affecting Māori culture and identity (Wai 262). Legislation Direct.