Minister, officials and departments in legislation
40.It is convenient to raise related matters. They concern the references to Ministers, officials and departments in legislation. Such references are relevant of course to changes in the organisation of government for such changes will usually require legislative changes to those references. That is illustrated not just by the proposals relating to the Ministry of Foreign Affairs and the Department of Trade and Industry, but also by the changes consequential on the creation of the State enterprises and the abolition of the Ministry of Works.
41. For the reasons already indicated above, legislation should rarely if at all confer powers and responsibilities on departments. Usually they should be placed on the individuals - on the government as a whole, by way of the Governor-General in Council, on a Minister, or on an official (not necessarily or perhaps even commonly the chief Executive; consider the many references to inspectors, registrars, or police officers throughout the statute book).
42. There is in general no reason for the power to be conferred or the duty imposed on the department. One small example can make that and related points. The Tribunals Division of the Justice Department services about 20 tribunals. The relevant statutes handle this administrative and registry responsibility in at least 4 different ways -
1 they are silent (Indecent Publications Act 1963, Copyright Act 1962, Legal Aid Act 1969 (Appeal Authority), Pharmacy Act 1970 (since 1979 the Act has recognised that there is a secretary to the Authority), Education Authority Employment Regulations 1982 (Appeal Authority))
2 they provide for the appointment of a Registrar or Secretary (without assigning that office to the Department) (Town and Country Planning Act 1977, s129; Sale of Liquor Act 1962, s9; Inland Revenue Department Act 1974, s29 (Taxation Review Authority), Treaty of Waitangi Act 1975, 2d Sch, C1.9 (other staff as well))
3 they put the responsibility on the Secretary for Justice (Contraception, Sterilisation and Abortion Act 1977, s17(2) (Abortion Supervisory Committee); but see also the general reference to "the Crown, acting through any department of State," in s17(1); Accident Compensation Act 1982, s105 (Appeal Authority - to name Registrar); Motor Vehicle Dealers Act 1975, s97(4) (Disputes Tribunals); Social Security Act 1964, s12G (Appeal Authority - to name secretary))
4 they put the responsibility on "the Department of Justice" (Human Rights Commission Act 1977, s60 (Equal Opportunities Tribunal), Broadcasting Act 1976, ss65 and 95N (Tribunal and Complaints Committee), Fire Service Act 1975, s82(11)(Appeal Board), Education Act 1964, s193AB(3) (Tertiary Grants Appeal Authority)
We do not express a specific preference at this time (and different provisions will no doubt be appropriate in some cases to meet different needs), but on the face of it there appears to be no reason to use the final option.
43. If allocation to the department is no longer a relevant option, in general we are left with the choice between the Minister and the official. That will be governed by a number of matters. Among them are the political sensitivity of the matter; should a Minister be taking the action (or be able to) and be fully responsible for it, or is the power such that it is better in an official's hands (such as many registration functions)? The matter is addressed in Legislative Change (1987) paras 43-46 and 59-65 and in the discussion paper on Administrative Tribunals (1988) paras 25-44. Our main concern here however is not with that choice (a vertical choice), but rather the horizontal one - the allocation to one Minister rather than another or to one official or another.
44. Changes in the legislative provisions which refer to particular Ministers and to particular officials (as well as to departments) are generally made by statute in either or both of the following ways
(1) by a single statute making the particular changes, usually by listing them in a schedule; see e.g. the Ministry of Transport Amendment Act 1972, s6(1) and First Schedule, enacted when the Marine Department was incorporated in the Ministry of Transport;
(2) by providing in a general provision that references in statutes to the Minister, chief executive officer, or department or Ministry, are now to be read as using the new title, unless the context otherwise requires; see e.g. s6(2) of the same Act; as that reference shows, (1) and (2) have been used together; see also e.g. Ministry of Agriculture and Fisheries Amendment Act 1972, s6(1) and (2), Trade and Industry Amendment Act 1972, s2, Ministry of Energy Act 1977, s18.
(An alternative to the schedule method of (1) is to enact separate statutes amending each particular statute affected. That appears to be an unnecessary complication and proliferation of Acts, and to produce a result which is more difficult to understand as a whole.)
45. This matter could be handled in 2 other ways (at least):
(1) The relevant legislation could refer simply to "a Minister of the Crown" or to "the Minister charged with responsibility" for the statute or area of administration in question; no legislative changes would be required in such cases, consequential upon a change of title or of the arrangements of a Ministry (there are some New Zealand instances);
(2) General legislation could authorise the reallocation of functions between Ministers or chief executive officers or departments by way of Order in Council.
Both processes are to be found in operation in Australia and the United Kingdom. On the second matter, for Australia see the Acts Interpretation Act 1901, ssl9B and 19BA, and for the United Kingdom see the Ministers of the Crown Act 1975.
46. Those provisions and the practices under them reflect the general proposition that the way in which the executive arranges its responsibility among the departments of state is a matter for it rather than for Parliament. That also is the case in New Zealand in those situations where legislation does not assign particular functions, powers and duties to named departments or Ministers (as in the first 2 categories mentioned in para 42 above). On this view Parliament's concern is rather to see that the functions are in existence and that there is appropriate provision (financial and other) to carry them out (see paras 32-34 above). The Committee wishes to have reactions to the propositions that legislation should
(a) confer powers and responsibilities on Ministers in general terms - "a Minister of the Crown" - and on officials alone and not as officials in a Department; and
(b) empower the transfer by Order in Council of powers and responsibilities from named Ministers and named officials to others named in the Order in those cases in which legislation is in specific terms.
We recall that the abolition of a department or a change in its name does require legislation (para 36 above). In that way Parliament is asked to endorse general changes in administration without pursuing every detail. The question arises whether it should also approve the establishment of new departments in that particular way. It does of course approve that action through the estimates.
47. But in some situations it may be thought appropriate to name particular Ministers as having the specific statutory responsibility. Thus the Minister of Finance is often given power to approve or not financial proposals, the Attorney-General (and Solicitor-General) have the power to consent to certain prosecutions and to forbid access to categories of information under Ombudsmen and related information, and the Minister of Justice either recommends or is to be consulted about many tribunal appointments. In those areas - there are no doubt others - the naming of one Minister rather than another does appear to be significant.
48. Accordingly if the general practice were that suggested in para 45, it might be appropriate for there to be exceptions in such areas. Again the Committee would welcome indications of what those areas might be and the reasons for them.
49. Finally we call attention to one valuable aspect of the Australian practice. Under that practice and the legislation mentioned in para 44, the government from time to time publishes a Gazette notice. The first part of the notice sets out in 3 columns each Department of State (the r Department of Aboriginal Affairs through to the Department of Veteran's Affairs), the principal matters each deals with, and the enactments administered by the Department of State. That part of the notice provides an overview of the whole range of government activity and its organisation. It is a very concise version - prepared in a comprehensive and authoritative way at the creation of governments and when they are reorganised - of material to be found in New Zealand in the Directory prepared under the Official Information Act and in other official publications including annual reports. The other parts of the Gazette notice change references in statutes to give effect to changes in the responsibilities and titles of Ministers and officials and changes in Department's names and organisation. Extracts from a recent notice are attached.