1.3 The policy context Te horopaki kaupapa here
1.3 The policy context | Te horopaki kaupapa here
1.3.1 The role of the Executive government | Te whai wāhi a te Kāwanatanga Whakahaere
The legal framework which we have outlined above provides the essential scaffolding for the orderly conduct of government in this country. It is a pivotal principle of the Westminster system (which New Zealand inherited from the United Kingdom) that the Executive government must always act in accordance with law. If it does not do so, its decisions may be ruled invalid by the courts. Of particular significance is the ability of individuals and organisations to seek judicial review of official decisions that are or may be invalid.
An equally important point, however, is that the Executive government enjoys a generous measure of freedom to formulate a wide range of policies, so long as it complies with the requirements of the law. Acting in accordance with law is therefore a minimum requirement for government. As a precursor to reviewing key decisions made during the period under inquiry, it is important to understand the principles and practices by which policies of the executive government are formulated and put into practice within the legal framework.
As required by our terms of reference, Phase Two of the Inquiry has focused on key decisions taken by government during the relevant period. In reviewing the evidence relating to these decisions, we have paid close attention to three things:
- the adequacy and breadth of the advice given to decision-makers (by government officials, experts and/or stakeholders outside government)
- the extent to which that advice was considered and implemented, and
- the consequences (foreseen and unforeseen, in the immediate and longer-term) of decisions.
As noted earlier, the terms of reference define 'key' pandemic response decisions as those which most deeply impacted (or had the potential to impact) large numbers of people or groups, or which had significant costs for the country and/or regions. Most of these decisions had legal force.84 Many government decisions simply confirm the direction of policy or make recommendations that are not legally coercive. Ordinarily, Cabinet decisions do not, of themselves, carry the force of law. By contrast, many pandemic response decisions were legally enforceable, and ignoring or flouting them could have legal consequences. This was so because policies of the Executive government were transformed into enforceable legal requirements under the authority of statutes enacted by Parliament, especially the COVID-19 Public Health Response Act 2020.
1.3.2 How are Government decisions generally made? | He pēhea te hanga o ngā whakatau a te Kāwanatanga i te nuinga o te wā
Most important Government decisions are made by ministers acting collectively as members of Cabinet, the central policy-making body of the Government's Executive branch. Usually, Cabinet decisions are made after the issue or proposal in question has been considered by one of the Cabinet committees established to deal with particular topics or functions.85 The committee's recommendations will inform Cabinet's final decisions. However, some issues or proposals may go straight to Cabinet for decision.
If an immediate decision is needed on a specific and clearly-defined issue or policy proposal, Cabinet or the Prime Minister may give a Cabinet committee the 'power to act' – effectively the power to make a final decision instead of Cabinet. A group of selected ministers may also be given this kind of decision-making authority.86 This happened at the start of the pandemic, when Cabinet gave power to act to seven key ministers (known as the COVID-19 Ministerial Group).87 On 17 August 2021, the Prime Minister, Deputy Prime Minister, Minister for COVID-19 Response and Associate Minister of Health were authorised to make certain decisions in relation to the Delta outbreak. By the end of August, Cabinet had given the power to make outbreak-related decisions to the COVID-19 Ministerial Group instead88
1.3.3 Principles of Cabinet decision-making | Ngā mātāpono o te whakatau a te Rūnanga Minita
The Cabinet Manual sets out principles to guide decision-making by Cabinet (or a minister/committee with power to act).89 Those we consider most relevant are:
- Matters requiring Cabinet consideration: Ministers should put before their colleagues 'the sorts of issues on which they themselves would wish to be consulted', including 'matters of public interest, importance, or controversy'. In addition, ministers must put certain proposals or issues in front of Cabinet for consideration, including significant policy issues and proposals that affect the government's financial position or require new legislation.90
- Consultation: before submitting a paper to Cabinet for a final decision, ministers and the agencies advising them are expected to consult their ministerial colleagues and other agencies that may be affected by the proposal.91
- Confidentiality: discussions at Cabinet and Cabinet committee meetings remain confidential. They are not formally recorded or included in minutes.92
- Collective responsibility: when Members of Parliament accept ministerial office, they accept that – however vigorously a policy may be debated around the Cabinet table – all ministers must support, represent and implement the Cabinet's final decision, regardless of their personal views.93
1.3.3.1 Providing advice to Cabinet | Te tuku tohutohu ki te
Rūnanga Minita
High-quality Cabinet papers give ministers the information and analysis they need to make sound collective decisions. Good papers result from robust policy development and consultation processes, and they draw evidence and insights from diverse perspectives. Like all forms of policy advice, Cabinet papers should be 'honest and impartial, and include all relevant information … responsive to the priorities determined by the government of the day … free and frank, and acknowledge any key information gaps, assumptions, risks or connections to other matters'.94
Cabinet papers should be both succinct and comprehensive.95 According to guidelines provided to officials, they should contain the four fundamentals of policy advice – context about why a decision is sought and how it fits with other policy settings; clear, logical analysis based on the best available evidence; advice about the best way forward; and an indication of the actions that come next.96
In normal times, seeking Cabinet approval takes agencies at least two months, and usually three to six. Several quality assurance checks are needed to ensure standards are met:
- Agencies' own quality assurance processes: these include peer review as well as sign-out requirements (when the draft paper is approved to go to the next stage of development, usually by a General Manager, Deputy Chief Executive or another senior manager). Ongoing staff development – in the form of short courses, policy forums, secondments and so on – supports agencies' ability to deliver quality papers.
- Interagency consultation: this allows government agencies with an interest in the decision to review the work in progress.97 Usually, any concerns can be resolved before the Cabinet paper is finalised: if they cannot, remaining concerns should be noted in the Cabinet paper so that ministers make decisions 'based on all the facts and an appreciation of the options'.98
- Ministerial consultation (including with coalition partners). This can take place before a Cabinet paper is lodged, when it is discussed by a Cabinet committee, and/or at Cabinet. Again, any ministerial concerns that are not resolved should be recorded in the paper before the final decision is taken.
- For Cabinet papers proposing legislative changes, Regulatory Impact Assessments provide an extra check on the robustness of the analysis.99
1.3.3.2 Providing advice in a crisis or emergency | Te tuku tohutohu i te wā o te raru, o te ohotata rānei
In the interests of speed, the standard process for developing Cabinet papers, described above, can be curtailed in a crisis or emergency. When this happens, the process relies more heavily on the expertise and experience of the drafter, the senior official approving the paper, the minister, and the Cabinet Committee responsible for reviewing the paper before it goes to the full Cabinet. Typically, officials preparing the paper will still ensure some kind of check-in takes place with the parties who would normally be consulted, even if it is only a quick discussion.
The ability of officials to safely run such a curtailed process is 'bought' through years of following more thorough processes in normal times. This builds the relationships and knowledge needed to work faster when necessary, and with fewer checks. Officials and agencies can safely make these short-cuts for a while, relying on quick checks with other agencies while providing sufficiently robust advice to ministers. As the crisis or emergency evolves, however, more thorough policy development is required by officials working within and across agencies and with ministers.
Here, the distinctions between different kinds of crises or emergencies are important. It may be wholly appropriate to short-circuit normal decision-making and policy advice processes at the height of a civil defence emergency, such as in the immediate aftermath of an earthquake. In that situation, making and implementing decisions quickly is imperative. But a prolonged crisis with national impacts that are unprecedented, widespread and possibly inter-generational – such as a pandemic on the scale of COVID-19 – presents different challenges. The duration of events like these is uncertain, but they may last several years. Their trajectory is often unpredictable. Throughout, decision-makers will face complex choices and trade-offs that are less common during short-term emergencies: how best to balance an immediate risk to public health with the continuation of children's education in the classroom, for example.
To make such difficult calls, decision-makers need broad and diverse advice from multiple agencies, experts and others outside of government – advice reflecting a thorough analysis of options, risks and possible consequences. Such advice cannot be given without a return to more normal policy development and consultation practices, even if they have to be curtailed again should the situation change suddenly. As the Phase One report noted, limiting consultation and engagement may speed up decision-making but it also increases the risk of 'groupthink', a lack of critical review and operational impacts being insufficiently considered.100 We return to the challenges of making well-informed and measured decisions in pandemic conditions, and the lessons provided by COVID-19, in Part 3.
84 Even decisions that were not legally enforceable could result in significant national/regional costs or other impacts, however, and are therefore among the 'key decisions' we assess in Part 2.
85 Cabinet Office, Cabinet Manual (Wellington: 2017), https://www.dpmc.govt.nz/sites/default/files/2017-06/cabinet-manual-2017.pdf, pp 73–74. All subsequent references to the Cabinet Manual are to this version, as it was in effect at the time of the pandemic response.
86 Cabinet Office, Cabinet Manual (Wellington: 2017), https://www.dpmc.govt.nz/sites/default/files/2017-06/cabinet-manual-2017.pdf, p 74
87 The COVID-19 Ministerial Group came into being on 19 March 2020. Michael Webster, 'Government decision making during a crisis – the New Zealand experience during the Covid-19 pandemic', Policy Quarterly 17, no. 1 (February 2021), https://ojs.victoria.ac.nz/pq/article/view/6724/5857, p 13
88 Cabinet Minute, CAB-21-MIN-0353, Additional Item: COVID-19 Ministerial Group: Power to Act (30 August 2021), https://www.dpmc.govt.nz/sites/default/files/2022-05/CAB-21-MIN-0353-c19-group-power-to-act.pdf
89 Some statutes explicitly require a decision or action to be taken by an individual minister rather than by Cabinet as a whole. See Cabinet Office, Cabinet Manual (Wellington: 2017), https://www.dpmc.govt.nz/sites/default/files/2017-06/cabinet-manual-2017.pdf, p 78
90 Cabinet Office, Cabinet Manual (Wellington: 2017), https://www.dpmc.govt.nz/sites/default/files/2017-06/cabinet-manual-2017.pdf, pp 74–75
91 Cabinet Office, Cabinet Manual (Wellington: 2017), https://www.dpmc.govt.nz/sites/default/files/2017-06/cabinet-manual-2017.pdf, pp 75–76
92 Cabinet Office, Cabinet Manual (Wellington: 2017), https://www.dpmc.govt.nz/sites/default/files/2017-06/cabinet-manual-2017.pdf, p 77
93 Cabinet Office, Cabinet Manual (Wellington: 2017), https://www.dpmc.govt.nz/sites/default/files/2017-06/cabinet-manual-2017.pdf, p 77
94 Cabinet Office, Cabinet Manual (Wellington: 2017), https://www.dpmc.govt.nz/sites/default/files/2017-06/cabinet-manual-2017.pdf, p 51
95 Cabinet Office, Cabinet Manual (Wellington: 2017), https://www.dpmc.govt.nz/sites/default/files/2017-06/cabinet-manual-2017.pdf, p 79
96 Department of the Prime Minister and Cabinet, 'Policy quality', last updated 8 December 2025, https://www.dpmc.govt.nz/our-programmes/policy-project/policy-quality
97 Cabinet Office, Cabinet Manual (Wellington: 2017), https://www.dpmc.govt.nz/sites/default/files/2017-06/cabinet-manual-2017.pdf, p 76
98 Cabinet Office, Cabinet Manual (Wellington: 2017), https://www.dpmc.govt.nz/sites/default/files/2017-06/cabinet-manual-2017.pdf, p 76
99 Ministry for Regulation,'Regulatory Impact Analysis (RIA)', last updated 13 December 2024, https://www.regulation.govt.nz/our-work/regulatory-impact-analysis-ria
100 NZ Royal Commission of Inquiry into COVID-19 Lessons Learned: Phase One, Main Report (2024), Part 2 Section 2.6.1.4, https://www.covid19lessons.royalcommission.nz/reports-lessons-learned/main-report/part-two/2-6-our-assessment