The legal need
(1) The Governor-General's power or duty to appoint a Minister
(2) The statutory establishment or continuation of the department
(4) The relation between the Minister and the chief executive or Department
(5) Responsibilities, functions and powers
(6) Specific powers to contract
(7) Delegation of powers by the Minister and chief executive
5.The above provisions are not needed in law, with the exception of provisions conferring those powers which are additional to those already available under the general law (part of (5) above). We give our reasons for that conclusion in the following discussion. The discussion also takes account of some of the legislative practice -including the cases when no legislation has been enacted or it has been enacted some time after the department was established.
(1) The Governor-General's power or duty to appoint a Minister
6. The Queen, under the prerogative or the common law, and the Governor-General, in terms of the Letters Patent constituting the Office of Governor-General of New Zealand (SR 1983/225), have the powers to establish the office of a Minister and to make appointments to the office. Over the years some statutes have also conferred a power or even imposed a duty of appointment in particular situations. So the Transport Department Act 1929, s2, provided that
The Governor-General may appoint a member of the Executive Council to hold office during his pleasure as Minister of Transport.
(Such provision is not included in the Ministry of Transport Act 1968.) And the Forests Act 1949, s3, continues to provide in the same terms for a Minister of Forests.
7. But such provisions are now most unusual. In the majority of cases the legislation leaves the appointment of the Minister to the prerogative. Relevant legislation simply takes the power and the appointment for granted. So the Ministry of Transport Act 1968 refers throughout to, and confers powers on, the "Minister" who it defines in section 2 as "the Minister of Transport".
8. The legislature does continue to be restrictive of the prerogative in one sense. By naming particular Ministers in the statute book it makes it difficult for the Executive not to have Ministers with those titles or to change the names of. Ministries. The definition need not be that specific; so the Factories Act 1894 defined "Minister" as
the member of the Executive Council whom the Governor may ... appoint to have charge of the administration of this Act ...
(Such provisions at that time at least in part reflect the specific schedules naming particular Ministerial Offices in the Civil List Acts before 1950. At that time either this method was used or new Ministers were added to the schedule as with Labour in 1908.) And some of the provisions consequential on the abolition of the Ministry of Works and Development refer in a general way to "a Minister of the Crown". The Constitution Act (see para 24 below) also includes a provision enabling one Minister to act for another. We come back to that issue at the end of this paper.
(2) The statutory establishment or continuation of the department
9. Just as the Queen and Governor-General can establish an office of a Minister and appoint a Minister so too can they through their-.Ministers set up the appropriate staff and advisory support. Legislation is not needed. Practice of 2 kinds shows that. First, 10 current departments and similar executive agencies (of the present 32) exist without legislation establishing them or continuing them:
Cabinet Office Crown Law Office Ministry of Forestry Department of Internal Affairs Department of Justice Government Printing Office Police Department Prime Minister's Department or Office Valuation Department Ministry of Women's Affairs
10. Of course, much legislation recognises the existence of the Departments - two convenient examples are the schedules to the State Sector Act 1988 and the Ombudsmen Act 1975. (The above list is based on the former. We have not included in the above figures the statutory offices, corporations, and commissions listed in that schedule.) But such legislation does not actually set up the departments.
11. Second, many Departments which have been established by legislation in fact existed before the first legislation to that effect. That legislation moreover often expressly recognises that the Department did exist before it was enacted. Thus the Labour Department Act 1903, "An Act to provide for the creation of a Department of Labour, and for declaring the powers and duties thereof," which provided "there shall be a Department of the Public Service of New Zealand called the 'Department of Labour'", said that "those holding office in the Department of Labour as constituted at the passing of this Act" were to be deemed to have been appointed-.under the new Act. (See also the Transport Department Act 1929, s4(2), Forests Act 1921-22, s7(5), Department of Agriculture Act 1953, s7.)
12. Another example is provided by the provisions of the public revenues and public finance statutes relating to the Audit Department. According to the statute book, it was not until 1977 that the legislature said that "there shall be a Department of State to be called the Audit Department". And yet legislation had recognised its existence from much earlier (e.g. Public Revenues Act 1910, s10).
13. The point in brief is that the Government can establish departments. Legislation is not needed for that purpose. We shall see, however, that it does not follow that legislation will not be needed for other reasons.
14. .The Crown has powers to appoint staff under the general law - prerogative or common law and, more commonly in practice, under statute (now the State Sector Act). There is no general need for additional legislative authority in particular departments. The legislation is sometimes more specific and controlling, providing for particular categories of officers (for instance a prescribed number of Deputy Secretaries ... ). In general such provisions do not appear to be necessary, and they may impose an unnecessary restraint on the structure of a department. The legislation might also control the method of appointment, but that too is provided for in the general case by the State Sector Act 1988.
(4) The relation between the Minister and the chief executive or Department
15. The general constitutional position in the absence of statute is that the Minister has the control of, and is responsible for the actions of, the Department. It follows that the Minister can give directions to the Department and its officers. (The matter is different with legislation which confers independent statutory powers on named officials and state agencies such as the Government Statistician and the State Services Commission.)
16. Particular legislation generally repeats the constitutional position. Thus the Treasury is "under the control of the Minister [of Finance]", while the Department of Labour in terms of its 1903 Act was "under the direction of the Minister". The statutes that make no express provision are significant: they are those relating to the Ministry of Defence, the Department of Inland Revenue and the Department of Statistics.
17. The general relationship is now covered in greater detail by the State Sector Act 1988. Section 32 provides:
32. Principal responsibilities - The chief executive of a Department shall be responsible to the appropriate Minister for -
(a) The carrying out of the functions and duties of the Department (including those imposed by Act or by the policies of the Government); and
(b) The tendering of advice to the appropriate Minister and other Ministers of the Crown; and
(c) The general conduct of the Department; and
(d) The efficient, effective, and economical management of the activities of the Department.
(See also s34.)
That provision of course applies as well to the 10 departments not established by statute. It will be subject to provisions which make it clear that an official or body is to act independently in particular cases (such as those mentioned in para 15).
18. In the usual case legislation need not repeat the prerogative and conventional relationship and the provisions of s32.
(5) Responsibilities, functions and powers
19. Ministers can be provided with advice and information by departments and their members, without any legislation authorising that. They can also consult with and provide information and advice to the public, within any relevant limits imposed by the law. They can attempt to promote, again within the law, the policies of the Government. Legislation is not needed for these purposes. In addition the State Sector Act 1988 contains some general provisions about these matters: ss32 (in para 17) and 34.
20. As indicated in para 5, some particular departmental legislation confers powers additional to those already available under the general law. So a Minister may have statutory power to set up a committee of inquiry with the coercive powers and the protections of a Commission of Inquiry, or officials might have powers of entry into private property to determine whether the law is being complied with. Whether such powers can be justified does of course depend on an assessment of the particular situation. That is not a matter which we address in a general way here. We have considered some aspects earlier, in a general way in the report on Legislative Change ; guidelines on Process and Content and in respect of particular Bills and legislative proposals.
21. The discussion under this heading has so far concerned the powers available under the general law and that which does require particular legislative grant. Legislation may also be justified to limit powers available under the general law or to impose responsibilities and duties. We return to those issues later (paras 30-31 and 37-38).
(6) Specific powers to contract
22. Some departmental statutes confer powers on Ministers in specific terms to enter into contracts. In some cases the power is more closely defined - for instance to buy shares in particular industries and to conclude charter parties. In our view these powers need not be conferred by statute. The Queen through her Ministers and officials can enter into contracts - as is shown for instance by the practice of many departments over many years.
(7) Delegation of powers by the Minister and chief executive
23. In terms of the general constitutional position Ministers can act through their officials. The application of that principle has been affected, and in practice often has been made irrelevant, by the enactment of many particular delegation provisions. Once again the State Sector Act 1988, ss28 and 41, deals with the matter in a comprehensive way. Unless the situation in a particular Department is special, departmental legislation is no longer required in this matter.
24. Furthermore, the Constitution Act 1986, s7, in a provision which is also relevant to the first heading (paras 6-8 above) enables any Minister (with whatever designation)to exercise or perform the functions, duties and powers of another Minister.
25. Under the common law Ministers can seek advice in any lawful way. They can, if they wish, appoint committees to help them with that. They can also have others exercise powers on their own behalf (a matter now also covered in a general way by the new delegation provisions). Particular legislation is not needed.
26. Ministers and Departments must of course have the funds necessary to undertake such actions. Such funds do not however arise from statutory provisions allowing the appointment of committees or subjecting the bodies to the Fees and Travelling Allowances Act 1951. As with other funds they will become available by way of annual appropriation legislation.
(9) Annual Reports
27. Ministers and Departments are free under the common law to make annual reports. The State Sector Act 1988, s30, now imposes an obligation on the scheduled departments to make an annual report. Again, in general, a specific provision is not needed.
28. The foregoing indicates the usual position. There will be cases where legislation is needed or desirable for particular reasons. Examples of particular needs are provided by the legislation relating to the three departments mentioned in the preface. Thus the Department of Labour Bill will carry forward the power of the Governor-General in Council to make regulations requiring the provision of employment information. The provisions in the Trade and Industry Act authorising regulations for import controls have to be maintained. And special arrangements (in effect by exemption from the general provisions of the State Sector Act 1988) appear to be desirable for the overseas staff of the Ministry of External Relations and Trade. But the general provisions in the relevant statutes either are not needed in law (the usual case) or (in a few cases) cannot, so far as we understand the issues, be justified.