OTHER POSSIBLE REASONS FOR DEPARTMENTAL LEGISLATION
Parliamentary statement of public policy Parliamentary scrutiny of executive action Legislation controlling power existing independently of statute Conclusion on departmental statutes
36. The arguments made above are about the need in law for legislation of the kind being considered. The general conclusion that in law such legislation is not needed is not however decisive. There may be good reasons of policy or for the purposes of parliamentary control of executive action for legislation which is not legally necessary. And there may be good reason for legislation to control power that exists independently of statute. We now consider those reasons. We note one feature of them: they will usually apply only to particular departments. They do not provide general reasons for departmental legislation.
Parliamentary statement of public policy
37. We agree that it may be appropriate for Parliament to include a statement of public policy in legislation about a general area of administration. Submissions to that effect were made on the State Sector Bill, and the title to the State Sector Act does now in fact set out more fully the legislative purposes. The Report of the Law Commission building on provisions in the present Accident Compensation Act 1982 similarly proposes purposive provisions about the promotion of safety and rehabilitation (Personal Injury : Prevention and Recovery (1988) 109-110). We might note however that the foreign affairs, trade and industry and labour legislation which has been or is proposed to be repealed was not written in such purposive terms, that it did not state responsibilities or duties, that it did not place the functions where they belong - with the relevant Minister, and that it did not place meaningful restrictions on the powers and functions.
38. There are of course many other ways in which Ministers and their departments can indicate their functions. One regular way is in their annual reports which all must now make to the House of Representatives (with its associated powers). We shall see that those other ways provide much better information and a better and recurring base for scrutiny. (See paras 40-4.1.) And Parliament of course does in fact indicate functions in the many substantive statutes relating to departments of State. We give some examples in the next paragraph.
>Parliamentary scrutiny of executive action
39. Should the Government be able to undertake whole new areas of executive activity without parliamentary scrutiny? Should it be able to abandon areas of administration without such scrutiny? Is that not inconsistent with the responsibility of Ministers to Parliament and with Parliament's right to scrutinise major changes of government administration? We agree that that responsibility and scrutiny are central to our constitutional system. We do not however think that the very occasional enactment of departmental statutes is a significant part of that control. Consider the Labour Department Acts of 1903 and 1954 and the Bill of 1988. To be compared with the opportunity for parliamentary scrutiny provided by 3 Bills introduced in the 98 years of the department's life are
(1) the debates on the 32 statutes for which the Department is responsible at the moment and their many predecessors and amendments back to 1891 (or earlier since labour legislation preceded the Department) - thus a 1909 collection of The Labour Laws of New Zealand (compiled by direction of the Minister of Labour, 5th ed) contains the whole or part of 32 Acts;
(2) the annual consideration of and debates on the estimates of departmental spending which provide an opportunity to check the changes in activity and especially of course the introduction of an entirely new department and function; and
(3) other parliamentary opportunities, eg. by way of questions and the enhanced powers of select committees.
40. That last matter can usefully be elaborated a little. The select committees now have a general power of their own motion to examine the policy, administration and expenditure of departments and associated non-departmental government bodies related to their area of interest (Standing Orders of the House of Representatives, 322). One major regular source of information relevant to that power and to the estimates process is the annual reports of departments which, as we have noted, are now, to be made to the House by every department (para 33). The estimates process is also now the subject of published reports from the relevant committee to the House.
41. In addition, the format of the annual reports has also been altered with the intention of improving the overall standard of departmental reporting for the purposes of government accountability to Parliament and the public. The Government Administration Committee has proposed guidelines for the content of departmental annual reports (Report of the Government Administration Committee 1987, Departmental Annual Reporting Standards App JHR 1987 I 6C). That format has been adopted in departmental reports tabled in 1988 (e.g. Department of Labour (G1), Ministry of Foreign Affairs (Al), and Department of Trade and Industry (G14)). The new format includes a statement of the purpose for which the department exists, a statement of the intended outcomes of each programme or major activity of the department and a list of the legislation (including subordinate legislation) which it administers. Some of that information is also available in a consolidated form in the Directory published under the Official Information Act and, more briefly, in the Official Yearbook.
42. The above processes are not only relevant to the executive's responsibility to Parliament but they also provide extensive information about the activities of departments - much more extensive and up to date than that given by departmental statutes.
43. The State Sector Act 1988 provides a further Parliamentary check if a department is to be abolished or its name altered. In that case legislation is needed. By contrast an addition of a department can be made by Order in Council. (That is also true of all changes (including deletions) to the schedules listing departments to the Ombudsmen Act 1975 and the Films Act 1983.) We later propose in the interests of parliamentary scrutiny that the change to the Schedule to the State Sector Act 1988 consequential on the the establishment of a department should also be effected only by Act (para 56).
Legislation controlling power existing independently of statute
44. A third general reason for legislation relating to departments might be to control or limit the powers which they would otherwise have under the common law. (If the matter is the limiting or controlling of powers conferred by statute that limit or control would usually be by way of the very statute which confers the power: consider for instance a power of inspection, Legislative Change, para 95.) So the very broad power which we all have - one which the Crown through the executive has as well - to gather, assemble, and transmit information about individuals might be limited so far as the State is concerned. The Security Intelligence Service legislation does that for that particular service (New Zealand Security Intelligence Service Act 1969, s4 and the definitions in s2; see the more detailed provisions of the Inland Revenue Department Act 1974, ss 13-15). It does not however impose such a limit on other departments. To be fully effective in respect of the whole of the executive, such legislation would have to apply generally across the public service, and the Information Authority has indeed made proposals to that. effect (Collection and Lose of Personal Information 1988 App JHR E 27B).
45. We stress again that this Report is about the regular department, its relations with its Minister and the regular run of functions and powers. So it is not about the position of officials who, or public bodies which, are to have functions independent from Ministers. Such functions and relations do require different legislative treatment, for instance in terms of any power of the Minister to give directions to the official or body and rights of appeal and review (see para 22 above and Legislative Change, paras 101-104).
46. Similarly, legislation regulates such important matters affecting private or public interest as the employment of public sector officers and the audit of public money. We mention later other situations in which particular members of the executive, such as the Minister of Finance or the Attorney-General, might have specific roles (pare 56). But with those important qualifications and in general, legislation need not concern itself with the internal workings of the administration. So it need not require consultation by one Minister with another. Such legislation is not necessary as a matter of law and serves no real purpose in terms of control, accountability and scrutiny.
47. There are of course rules and understandings which operate between Ministers and officials and within and between departments about the responsibilities of the government. Much attention has been and is being given to them and to their development. They are in part dependent on legislation, such as the State Sector Act 1988 and Public Finance Act 1977. But as with somewhat similar arrangements for the management of other large organisations they can and do operate largely independently of public legislation. And there is a basic relevant feature of our constitutional system which may be in danger of being overlooked in discussions of those relationships. The Government of New Zealand is in general and for most purposes a single entity. The Ministry has the power of governance because it has the support of the majority of the members of the House of Representatives who have been elected by the people of New Zealand. The officers and employees of the Crown in the departments are, within the law, subject to the direction and control of that political executive and through their own departmental systems. How arrangements are made within that single government to meet its responsibilities - for instance in terms of departmental organisation - is in large measure for that government itself to determine We stress again however that the law puts important limits on that determination (and we propose a further limit in pare 55), and that the determinations may be subject to extensive parliamentary scrutiny.
Conclusion on departmental statutes
48. Accordingly we conclude and recommend that departmental statutes and legislative provisions of the type considered in this Report should not in general be enacted. Executive responsibility, public knowledge of departmental activity and parliamentary scrutiny can be and are being achieved in better ways. As the opportunity arises, the provisions should be repealed. As pare 4 indicates the opportunity appears to arise quite frequently.