Introduction
1. Over many years Parliament has enacted statutes which establish departments of State. The statutes make provision for such matters as the departments' Ministers, their staff, their functions, duties and powers, their annual reports, and their funding. This practice has been inconsistent in two major ways. First, a large number of departments have been set up over the years by executive action and not by legislation (although in many cases legislation "establishing" or "continuing" such departments has been enacted later); and, second, the departmental legislation which has been enacted has varied greatly in the range and the terms of its provisions. Sometimes the variations can be explained by the different requirements of the department, but that is not always so.
2. The main purpose of this Report is to review the practice, to assess the reasons for departmental legislation, and to propose more principled and consistent treatment of the issues presented by such proposals for statutes.
3. Our principal conclusion is that in the usual case such general departmental legislation is not needed and that it should not be enacted.
4. The Legislation Advisory Committee prepared the discussion paper on this matter in September 1988 for 3 reasons. One is that its Report of August 1987 on Legislative Change : Guidelines on Process and Content is not comprehensive. It covers some of the matters which recur in the preparation of legislation relating to public power, but not all. The Report requires to be supplemented on a continuing basis. A second reason is that in late 1988 several statutes relating to departments were in prospect - when the discussion paper was being prepared a Department of Labour Bill was already in the House of Representatives and there were publicly announced proposals for the reorganisation of the Ministry of Foreign Affairs and the Department of Trade and Industry. In addition in the last few months of 1988 the Survey Amendment Bill (No.2), the Trade in Endangered Species Bill, the Ministry of Agriculture and Fisheries Amendment Bill (No.2), and the Conservation Amendment Bill (No.2) all contained relevant provisions. On the view that we take, much of this legislative activity could have been avoided and later problems removed.
The third reason relates to recent more general changes in public sector legislation. As the Minister of Justice said in his introduction to our discussion paper those changes make this 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.
6. The Committee made submissions on all the Bills mentioned in para 4 with the exception of the Conservation Bill which was introduced and passed under urgency in December; it has received valuable submissions and comments (as indicated in appendix 1) on the discussion paper; it has discussed the proposals made in that paper with members of parliamentary select committees considering the bills mentioned earlier, departmental officers and others who are interested; and it has given further consideration to the issues.
7. We make 3 comments at this stage arising from that process. The first is that we continue to hold to the proposition that departmental legislation of the kind briefly mentioned in the first paragraph and described more fully in the next section of this Report is not in the usual case needed and should not be enacted. The second comment is in support of that: the bulk of the relevant legislation of late 1988, including changes made by select committees, is consistent with that proposition. For the most part it does not include the provisions which we concluded were not needed or were not desirable. The short titles of two recent legislative measures make our point succinctly - the Department of Labour Act" Repeal Bill (as reported back) and the Trade and Industry Act Repeal Act 1988. The third comment is that in some particular cases special legislation relating to departments will be needed or justified. So the External Relations Act 1988 contains special provisions about the appointment of the overseas service: the general provisions of the State Sector Act 1988 about appointment are not adequate for that purpose.