What about fair treatment for Kiritapu Allan?

Fair treatment for Kiritapu Allan would have resulted in a different decision.  She has not been afforded due process and as a result, the Prime Minister’s decision to revoke her Ministerial portfolios is unfair. 

Employees, who like Kiri are charged with criminal offending, at least have the benefit of some basic employment protections.  In this post, we look at those protections. We question why Ministers of the Crown are not afforded the same rights.  Kiri Allan’s case, we argue, shows the unfair results.

Code of Conduct

At the Policy Place we see many different Codes of Conduct.  They are generally similar and the one applicable to Ministers of the Crown is no exception. Like many others that apply in New Zealand workplaces, the Cabinet Manual states expectations of high ethical and behavioural standards by Ministers.

Unlike many other Codes of Conduct, the Cabinet Manual specifically applies these standards to a Minister’s personal life.  However, there is an equivalent obligation in other Codes of Conduct -an employee’s obligation to refrain from any act or omission that could reasonably bring their organisation/employer into disrepute.

Fair treatment in employment

If an employee is charged with an offence or breach of Code of Conduct, they must be treated fairly in NZ law.  In the criminal justice system, this means they are entitled to the presumption of innocence.

In their employment, the person who is charged with an offence, has the right to due process before any decision should be made about their employment. An impartial and fair investigation must be undertaken and the person given a fair and reasonable opportunity to answer allegations, including the opportunity to access support and advice.  Only after a fair hearing and consideration of issues should any decision be made about what has occurred and then, about the appropriate action to be taken.

A criminal charge or conviction for acts committed outside of work will not always warrant disciplinary action. There must be a sufficient connection between the work role and the charge (Managing an employee charged with a criminal offence.)  Even if the charge is relevant to the role, it may not justify dismissal.  Other consequences, like a warning, might be more appropriate. It will depend on the circumstances.

Unfair treatment

Employment law doesn’t apply to elected officials nor to decisions about Ministerial appointments.

Yet, due process rights apply to a whole raft of decisions. Decisions about ministerial roles have significant personal and professional ramifications for ministers that are analogous to loss of employment.

For these reasons, Ministers of the Crown should be entitled to equivalent protections.

Bad decisions 

An employer’s failure to adhere to due process in employment can lead to bad decisions not just for staff but also for the workplace.

Decisions about ministerial roles are similar to employment decisions. If Ministers are not afforded due process, its more likely that bad decisions will be made. Kiri Allan’s situation demonstrates this:

1. She appears to have been given no real time to properly consider and respond to the allegations against her and to access the support she needed to respond
2. A full and fair investigation does not appear to have been undertaken before the PM decided she was not fit to hold a Ministerial Warrant
3. No regard seems to have been given to whether Kiritapu could continue to hold some but not all of her Ministerial roles. For example, she steps down as Minister of Justice but continue as Minister for Regional Development where the criminal charges are less relevant.
4. The PM referred to mental distress as the context for the criminal charges against Kiritapu. However, her mental distress doesn’t appear to have influenced or discouraged him from rising to a quick decision about her ministerial warrant.
5. No regard appears to have been given to the Crown obligation of active protection under Te Tiriti o Waitangi in this case. That obligation requires the Crown to actively redress inequities experienced by Māori. Wāhine Māori in politics experience significantly more adversity and distress than others.  The impacts of this on Kiri Allan should have been considered before any decision was made.

Conclusion

We expect a lot of our politicians. At the very least, they should be afforded the same basic protections as staff.

The Cabinet Manual needs to be changed to reflect this. If not, we are likely to continue to see bad  processes leading to bad and reactionary decisions.