Preface by the Minister of Justice
Last year Cabinet approved the report, Legislative Change Guidelines on Process and Content (August 1987) prepared by the Legislation Advisory Committee (see also the June 1988 Report of the Committee, paras 20-25 and appendix B).
As its title indicates, the report provides guidelines for the content of legislation. The first question it asks about proposed legislation is whether legislation is needed at all (paras 13 and 26). I also stress that matter in my preface to the Report (p5).
This discussion paper is concerned with that question in a concrete context: that provided by legislation which establishes or continues Departments of State, confers Powers on them, and makes other administrative arrangements. The Legislation Advisory Committee has prepared this paper at this stage in part because the original report is not complete; it requires to be supplemented. A more immediate reason is provided by the introduction of the Department of Labour Bill into the House and the proposals for major changes in the responsibilities of the Ministry of Foreign Affairs and the Department of Trade and Industry. Changes in public sector legislation also make such an examination timely. Thus the State Sector Act 1988 has given for all the state services a new more Precise definition of the relative roles of Ministers and chief executives. The State-Owned Enterprises Act 1986 had already provided, again on a general footing, for a particular allocation of accountability and responsibility in the area of state commercial activity. And other changes actual or proposed (often under the broad heading of "devolution") in the organisation of power and accountability for its exercise in local government, education, health, Maori affairs, social welfare, and training for employment also present important constitutional and legislative issues.
One of the purposes of this paper is to help define, by reference to legislative forms, one of the differing ways in which public power is organised. At one end of a continuum is the standard Minister - department relationship and along it various forms of independent or partly independent (or autonomous) power. The differing structures should have general legislative forms appropriate to them. Our statute book shows that the legislation relating to Departments has grown up over a long period, with a view no doubt to its effectiveness in the particular case but without the overall set of issues being answered, at least on a 'consistent basis. This can be seen in the fact that although the bulk of departments do have departmental statutes some of the oldest and youngest Departments (such as the Department of Internal Affairs, the Department of Justice, the Crown Law Office, the Ministry of Women's Affairs, and the Ministry of Forestry) do not.
The paper reaches the tentative conclusion that in general departmental legislation of the kind discussed is not needed and- should not be enacted. The Committee welcomes comment on that opinion. It also raises questions, in part by reference to Australian and United Kingdom practice, about the ways Ministers, public servants (especially Chief Executive Officers)., and' departments are mentioned in legislation. It wishes to have comments on those matters as well.
The matter addressed in this Report is not solely one of the bare legal form necessary to give effect to a particular constitutional structure. In some situations Parliament for good reason will wish to state a public policy and to impose responsibility on the Government for pursuing it. The statute book can properly have that role as well. That is to say, legislation should not always be limited to the absolute legal minimum. It is not a matter of consistency for its own sake. Remember Emerson: A foolish consistency is the hobgoblin of little minds, adored by little statesmen and philosophers and divines.
What is sought is consistency in addressing issues - the establishment of a norm against which future legislative proposals can be tested. If there is no good reason for deviating from the norm then let the norm be used consistently. If there are good reasons for departing from the norm let the debate consider those reasons. When they justify such a departure it should occur. But the departure from the norm will then occur within a firm structure.
Comments on the issues raised in this paper are :very welcome. They should be forwarded to
The Secretary Legislation Advisory Committee C/- Law Reform Division Department of Justice Private Bag WELLINGTON
by 14 October 1988.
Geoffrey Palmer Minister of Justice
September 1988