The Free and Frank Series: Where We Have Been

18/04/2026

The Visitation and the Ghost

This is the sixteenth instalment in a series exploring what free and frank advice means in Aotearoa’s constitutional and institutional arrangements. Over the previous four months, I have slowly worked through two bodies of literature: the public administration scholarship that describes the institutional machinery within which advice operates, and the political theory that asks what could possibly legitimate the exercise of unelected power in a democracy. This week, I pause to take stock. We do this by drawing on Bonnie Honig’s (1993) concept of remainder in democratic theory. I offer a hypothesis that the persistent failure to define free and frank advice is not a gap in our constitutional or institutional arrangements, but possibly its most important feature. From here, the series turns to methodology and the voice of over 210 practitioners themselves.

I want to begin where this series began: with an image. Shane Cotton’s Visitation (2024) has accompanied every instalment, and I return to it now because after sixteen weeks of theory, it still holds the encounter better than any of the frameworks I have assembled.

On the left, a figure composed of many forms and colours: like iwi me hapu layered into a single presence, a coat of many colours assembled from different tikanga me kawa, each contributing its hue.

There is something of the Annunciation in the composition, iwi me hapu like an archangel bearing a message that will change everything. But this is not a single message. It is plural, contested, irreducibly complex, and potentially inexplicable. And on the right, the official in dark cloth, sitting quietly, hands clasped, listening, trying to make sense of all that colour.

It is a piece of art that has inspired the doctorate, for it is also an image of the ghost in the machine. The figure on the right receives what is plural and must somehow hold it. The figure on the left brings what is multiple and expects it to be heard. Between them sits something that neither can fully see: the constitutional and institutional arrangements that make their encounter possible, that shape what can be said and what can be heard, yet which no one has ever quite managed to define.

The Two Movements

Over the past four months, this series has traced the constitutional principle of free and frank advice using two broad movements. The first, spanning the public administration literature, examined through the institutional machinery: the structures, conventions, and practical arrangements within which free and frank advice operates.

We began with Christopher Hood and Martin Lodge’s (2006) public sector bargain: the implicit contract offering officials permanence, anonymity, and professional autonomy in exchange for loyalty, competence, and service. We traced its unravelling through Donald Savoie’s (2003) analysis of Westminster systems under strain, through Peter Shergold’s (2015) documentation of the Australian experience, through Dennis Grube’s (2015) account of how the anonymity principle fractured under media pressure. In Aotearoa, Richard Norman’s (2003) Obedient Servants? captured the particular intensity of a country that had replaced its entire institutional architecture in a decade.

From the bargain, we moved to the space where it is operationalised. Alex Matheson and Howard Fancy’s (1995) purple zone named the institutional territory where political judgement and administrative expertise bleed into one another, where the neat distinction between blue and red dissolves into something more honest and more difficult. Rose Cole’s (2022) doctoral research located that zone precisely: the minister’s office, staffed by officials serving dual principals, navigating what her participants called “a very dicey minefield.” Each successive government refurnished the purple zone differently, and each reconfiguration reshaped what advice needed to contain.

The authorising environment, drawn from Mark Moore’s (1995) public value framework and the fierce critique it provoked from Rod Rhodes and John Wanna (2007), revealed a deeper question: who gets to decide what counts as valuable in the first place? The debate exposed how different sources of authority, electoral, professional, constitutional, and cultural, make competing and sometimes irreconcilable claims upon what free and frank advice should serve. Any definition that privileges one source subordinates the others, and that subordination is itself a political act.

I should be direct about where I stand on this. Rhodes and Wanna’s critique was, in my view, substantially correct, and its implications have not been sufficiently absorbed. Moore’s public value framework, for all its intellectual elegance, invites officials to position themselves as stewards of something called the public value, discerned through consultation and professional judgement. The difficulty is that this positioning displaces democratic authority. It encourages officials to believe they are constitutionally independent actors exercising a kind of trusteeship, when they are not. They are servants of the Crown, operating under the authority of elected ministers, within a framework of democratic accountability that public value theory tends to obscure rather than illuminate. What concerns me is not merely the theory but its reach. A generation of public servants across Westminster systems has now been trained in public value thinking. Strategic triangles and authorising environments have become part of the professional vocabulary. If that vocabulary carries within it an unexamined assumption of constitutional independence, then the sheer scale of its adoption becomes a democratic and practical problem, not just an academic one.

Political economy completed the toolkit. Three traditions escalated the analysis: Karl Polanyi’s (1944) demonstration that markets are built, not natural; Jane Kelsey’s (1995) insistence on asking built by whom and for whose benefit; and the Māori political economy tradition, which reveals genuinely plural economic logics that a single institutional framework may struggle to accommodate. Political economy shapes what can be said, what goes without saying, and what cannot be said at all. Murray Horn’s (1995) analysis helped explain why some arrangements endure not because they serve the public interest but because they serve the interests of those with the power to maintain them.

Woven through this first movement, we took three diversions, all of which helped sharpen the lens on public administration. Richardson, Durose, Cairney, and Boswell’s (2025) buzzword framework explained why free and frank advice is not a buzzword, but alerted us to how buzzwords cycle through into fashionable obscurity. The Te Taunaki census data showed practitioners engaged in bounded disagreement rather than confusion about the offering of free and frank advice, whilst the commentary from the Free Speech Union demonstrated precisely the categorical conflation of free and frank advice with free speech and academic freedom that the literature has spent decades trying to untangle. And the statutory whakapapa traced a legislative genealogy in which Parliament kept saying the concept matters without ever saying what it is. The Official Information Act 1982, the State Sector Act 1988, and the Public Service Act 2020: each iteration increased the functional importance of free and frank advice whilst leaving its content unspecified.

In the second movement, we turned to political theory. If the public administration literature described the machine, political theory asked what could possibly justify the ghost’s presence within it.

Consent theory, from Hobbes through Locke to Rousseau, generates a bureaucratic problem it cannot resolve: citizens consent to elected government, not to the officials who exercise power over their daily lives. The Friedrich-Finer debate (Friedrich, 1940; Finer, 1941), as replayed in the Moore-Rhodes exchange, exposed the dilemma at its most stark. Democratic legitimacy appears to demand both expert independence and absolute political control, simultaneously.

Rationalism offered a different ground: perhaps officials earn their authority through superior knowledge. But David Estlund’s (2003) analysis and Jason Brennan’s (2016) forceful case for epistocracy revealed how quickly the claim to know better slides into the claim to rule. In Aotearoa, the epistocratic frame collides with Te Tiriti, which established a dual form of legitimacy that neither consent theory nor rationalism can accommodate within its own terms.

Philip Pettit’s (1997) civic republicanism reframed the question from “who authorised this power?” to “is this power arbitrary?” Non-domination offered a structural account of what free and frank advice might protect against: the capacity for arbitrary interference, whether exercised by ministers over officials or by the state over citizens. The republican frame also mapped onto rangatiratanga in ways that neither consent nor rationalism could capture.

And trust. Annette Baier’s (1986) account of trust as accepted vulnerability, Onora O’Neill’s (2002) insistence that trustworthiness matters more than trust, Niklas Luhmann’s (1979) distinction between personal trust and systems trust: together, they suggested that what the reforms of the 1980s dismantled was not primarily the personal relationships between ministers and officials but the institutional architecture that made those relationships unnecessary for the system to function. Trust, we concluded, is not what free and frank advice produces. It is the substrate within which advice can be free and frank at all.

The Remainder

Each of these traditions brought something essential. None was sufficient. And that pattern, the pattern of essential insufficiency, is itself the finding I want to draw out here.

Bonnie Honig (1993), writing about democratic theory more broadly, argues that every political settlement produces a “remainder”: something left over, unresolved, because the idea is so essential and contested that a settlement or consensus cannot be absorbed. Most political theory and some new public management and public policy theories treat remainders as a problem to be solved. Both the theorists and managerialists believe a remainder is either a sign of an incomplete theory or a policy setting that, with enough refinement, can have its loose threads tidied away. Honig’s argument is the opposite. The remainder, Honig suggests, is not a failure of theory; it is what keeps democratic politics alive. The things that resist settlement are precisely the things that sustain the ongoing contest democracy requires.

My working hypothesis is that free and frank advice is a remainder in Honig’s sense. It is not merely an undefined concept that has resisted definition. It must remain unsettled if it is to continue doing its constitutional and institutional work.

Consider what each political theory tried to do with free and frank advice. Consent theory tried to derive the official’s authority from the democratic mandate. It could not, because the official’s function is precisely to exercise judgement that an electorate mandate does not and cannot specify. Rationalism tried to ground free and frank advice in expertise and evidence, and could not, because the claim to know better is not self-legitimating in a democracy. Republicanism, in Pettit’s sense, sought to frame free and frank advice as a guardrail against domination. While it came closest, it could not fully account for officials’ domination of Ministers through public value theory, or the Māori political economy that operates alongside, and sometimes against, the settler state’s institutional logic. Finally, trust theory sought to locate free and frank advice in relational conditions but could only illuminate the substrate, not the thing itself.

Each political theory grasped something real. Each left a remainder. And the remainder is always the same: the irreducible and inexplicable, dare I say, ambiguous space where different sources of authority, different knowledge systems, different conceptions of the public good and public interest, meet and must somehow be negotiated without any one of them being allowed to settle the question permanently.

That space is where the official sits in Cotton’s painting. Hands clasped. Listening. Receiving what is plural and contested and trying to hold it all. And carefully looking for the moment in which to speak.

The Deliberate Silence

Westminster systems are full of deliberate silences. The reserve powers of the Crown. The conventions governing ministerial responsibility. The relationship between the executive and the judiciary. The Crown staying silent on matters relating to tikanga me kawa, including what the exercise of rangatiratanga might look like. In each case, the silence is not accidental. It exists because the specific practice is too important to be frozen in a single formulation. We are still a young nation. Our circumstances change all the time. But mostly because the democratic contest requires that certain questions remain open to constant renegotiation.

My working hypothesis going into the field work is that free and frank advice belongs in this company. Parliament has progressively elevated it from unspoken convention to statutory principle, from the Official Information Act 1982 through to the Public Service Act 2020, which made the duty of free and frank advice a core principle of the public service spirit. But at no point has Parliament defined it. The legislative trajectory is one of increasing weight placed on a concept whose content remains deliberately unspecified.

This silence is not, I think, a failure of legislative drafting. It is constitutional wisdom of a particular kind. A rigid definition would collapse one side of an inherent tension. Define free and frank advice as fearless truth-telling, and you privilege professional independence over democratic responsiveness. Define it as a responsive service to the government of the day, and you hollow out the constitutional safeguard. Define it at all, and you foreclose the democratic contest over what it should mean in this government, under these circumstances, for this decision.

The ghost in the machine, then, is not a malfunction. It is by design. The machine needs its ghost: something present enough to shape behaviour, absent enough to accommodate difference, spectral enough to haunt without constraining.

Turning to the Practitioners

So, might I offer, if the theoretical landscape that I have walked you through over the past four months has taught us anything, it is that free and frank advice cannot be understood from above, and the abstractions and theory offer us little comfort. No single tradition can define it. No combination of traditions can settle it. The remainder persists.

And so the question shifts. If scholars, theorists and the literature cannot tell us what free and frank advice is, perhaps the people who practise it can. Not because practitioners have the answer that theory lacks, but because their disagreements about what it means may themselves be structured in ways that reveal something that definition obscures.

The next phase of this series turns to the methodology: the question of how one investigates a concept that resists definition, and how one listens to over 210 practitioners across nine administrations to make sense of their different ways of understanding the same constitutional obligation.

The approach I adopted starts from a particular conviction: that meaning is made in practice, that the traditions and narratives people bring to their work shape what they see and what they do, and that the way to understand a contested concept is not to resolve the contest but to listen and try to map it.

Without giving away too much, what emerged from that mapping was not a definition. It was something more interesting: six distinct postures, six coherent ways of understanding what free and frank advice is, organised along four fault lines. Structured via a single agreement. The answer to the question, “What is free and frank advice?” is neither chaotic nor confused, but a patterned contest operating within shared parameters.

The archangel in Cotton’s painting is depicted in many colours. The official in dark cloth sits quietly, hands clasped, receiving what is plural, contested, and irreducibly beautiful and complex. Between them, unseen but shaping everything, a ghost persists: free and frank advice, omnipresent yet invisible, essential yet elusive, regulated but undefined. But no longer invisible. Four months ago, I said the ghost remains a ghost, but that we could begin to see the shape of the machine it haunts. Now I think we can say something more. The machine needs its ghost. The silence at its centre is not an absence but a presence, holding open the space where different authorities, different knowledge systems, different conceptions of the public good and public interest can contest, but also withdraw when the matter cannot and must not be settled. When we turn to the practitioners in the coming weeks, the ones who live with that ghost daily, we will find that they have not been waiting for the silence to be filled. They have been filling it themselves, in six different ways, along four fault lines, with an organising idea that acts as the floor. The differences, it turns out, are not the problem. In fact, they may be the answer.