Parliament's Watchdogs â New Zealand 's Officers of Parliament
Parliament's Watchdogs â New Zealand 's Officers of Parliament Parliament's Watchdogs â New Zealand 's Officers of Parliament
138 Lesley Ferguson APR 25(2)The Standing Orders Committee subsequently recommended to the House a changeto its Standing Orders (effective from 4 October 2008) to provide for reports fromofficers of Parliament to stand referred as applicable to the Finance and ExpenditureCommittee (Controller and Auditor-General), the Government AdministrationCommittee (Ombudsman), or the Local Government and Environment Committee(Parliamentary Commissioner for the Environment). This practice was institutedaccordingly. The relevant committee can either examine the report itself or, if itconsiders that the subject area of the report is primarily within the terms ofreference of another select committee, refer the report to that committee forexamination. A committee to which a report stands referred considers whether torequest a briefing from the officer of Parliament and, if applicable, fromGovernment or local authority officials.There is no statutory or formal requirement for the Government or any other publicauthority to respond to recommendations set out in reports from the Controller andAuditor-General and the Parliamentary Commissioner for the Environment; theOmbudsmen, however, do have the power to request a response. The involvementof select committees is seen as a was to encourage efforts to implement or respondto the recommendations of officers of Parliament, particularly as a select committeemay itself make recommendations to the Government in the light of the report, andrecommendations addressed to the Government require a response. 16ClassificationThe FEC criteria provide an aspirational model, which can be applied as a test wheninvestigating the creation of an officer of Parliament. Uncertainty remains,however, as to whether these criteria constitute a sound approach to classifying anagency as an office of Parliament. This is particularly relevant to agencies that,while not necessarily carrying a function of the House, need a degree of separationand independence from the Crown to be effective. Such agencies are likely to bethose that advocate for the interests of citizens against those of the State — andshould therefore not depend on the Crown for appointment and funding.The main effects of making an office an officer of Parliament are as follows:The officer is appointed by the Governor-General on the recommendation of theHouse;The officer cannot be removed from office except by the Governor-General on anAddress from the House; andThe institutional needs of the officer of Parliament are determined by Parliament,also by means of an Address to the Governor-General.In New Zealand officers of Parliament have been created only rarely, despite callsfor agencies such as the Human Rights Commissioner, the Children’sCommissioner, the Commerce Commission, and the Independent Police Complaints
Spring 2010 Parliament’s Watchdogs — NZ’s Officers of Parliament 139Authority to be made officers of Parliament. Similar agencies, however, have beencreated officers of Parliament in other jurisdictions.In the United Kingdom, the Nolan reforms 17 established a number of ethicalregulatory bodies with varying relationships with Parliament. In Scotland, sevenparliamentary officials have been established, including a commissioner forchildren and young people. 18 In Canada, there are no agreed criteria for an office ofParliament. Agencies such as the Public Service Commission and the CanadianHuman Rights Commission 19 have been established ad hoc; the main criterion formaking the office holders of these agencies officers of Parliament was theirperceived independence from executive government. The classification issue hasnot been so prominent in Australia, where the Ombudsman and the Auditor-Generalare the only officers of the Commonwealth Parliament. 20 However, the issue hasarisen at the Australian State Parliament level — in 2006 it was the subject of areport of the Public Accounts and Estimates Committee of the Parliament ofVictoria, which recommended a framework and set of criteria similar to those usedin New Zealand.One way to consider this issue is perhaps from a parliamentary perspective,focusing first on the factors that would persuade a Parliament to entrust aninstitution to carry out fairly coercive functions on its behalf. Then, the needsof the office holders might be considered, particularly what statutory measuresmight be necessary to preserve their independence and prevent interference by theexecutive.Buchanan argues that it is too simplistic to confer officer of Parliament status on anagency purely to secure independence from the executive for an agency thatscrutinises the executive or holds it to account. 21 One of the functions of aParliament is to scrutinise and control the Government, 22 and it is easy to concludethat any instrument of Government that seems to undertake a parliamentary-typerole should sit within the parliamentary realm. This, however, is to ignore the roleof the judiciary, and the practices that have emerged to allow certain office-holdersand agencies to operate independently within the executive branch of Governmentdespite their functions appearing to run counter to the interests of the Government— for example, New Zealand’s Children’s Commissioner, Commerce Commission,and the Independent Police Complaints Authority. Conventions and politicaldisincentives surround the operation of such agencies; for example, the Governmentmust consult other political parties about the appointment of some of these officers.Perhaps, as Buchanan suggests, these conventions should be strengthened beforejurisdictions such as the United Kingdom look to the officer of Parliament model toallow an agency to be part of executive government while operating independentlyfrom the Crown.Statute also provides a means of protecting the independence of such agencies. NewZealand’s Crown Entities Act 2004 now provides for the appointment, governanceand accountability of Crown entities and for the categorisation of Crown entities
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138 Lesley Ferguson APR 25(2)The Standing Orders Committee subsequently recommended to the House a changeto its Standing Orders (effective from 4 October 2008) to provide for reports from<strong>of</strong>ficers <strong>of</strong> <strong>Parliament</strong> to stand referred as applicable to the Finance and ExpenditureCommittee (Controller and Auditor-General), the Government AdministrationCommittee (Ombudsman), or the Local Government and Environment Committee(<strong>Parliament</strong>ary Commissioner for the Environment). This practice was institutedaccordingly. The relevant committee can either examine the report itself or, if itconsiders that the subject area <strong>of</strong> the report is primarily within the terms <strong>of</strong>reference <strong>of</strong> another select committee, refer the report to that committee forexamination. A committee to which a report stands referred considers whether torequest a briefing from the <strong>of</strong>ficer <strong>of</strong> <strong>Parliament</strong> and, if applicable, fromGovernment or local authority <strong>of</strong>ficials.There is no statutory or formal requirement for the Government or any other publicauthority to respond to recommendations set out in reports from the Controller andAuditor-General and the <strong>Parliament</strong>ary Commissioner for the Environment; theOmbudsmen, however, do have the power to request a response. The involvement<strong>of</strong> select committees is seen as a was to encourage efforts to implement or respondto the recommendations <strong>of</strong> <strong>of</strong>ficers <strong>of</strong> <strong>Parliament</strong>, particularly as a select committeemay itself make recommendations to the Government in the light <strong>of</strong> the report, andrecommendations addressed to the Government require a response. 16ClassificationThe FEC criteria provide an aspirational model, which can be applied as a test wheninvestigating the creation <strong>of</strong> an <strong>of</strong>ficer <strong>of</strong> <strong>Parliament</strong>. Uncertainty remains,however, as to whether these criteria constitute a sound approach to classifying anagency as an <strong>of</strong>fice <strong>of</strong> <strong>Parliament</strong>. This is particularly relevant to agencies that,while not necessarily carrying a function <strong>of</strong> the House, need a degree <strong>of</strong> separationand independence from the Crown to be effective. Such agencies are likely to bethose that advocate for the interests <strong>of</strong> citizens against those <strong>of</strong> the State — andshould therefore not depend on the Crown for appointment and funding.The main effects <strong>of</strong> making an <strong>of</strong>fice an <strong>of</strong>ficer <strong>of</strong> <strong>Parliament</strong> are as follows:The <strong>of</strong>ficer is appointed by the Governor-General on the recommendation <strong>of</strong> theHouse;The <strong>of</strong>ficer cannot be removed from <strong>of</strong>fice except by the Governor-General on anAddress from the House; andThe institutional needs <strong>of</strong> the <strong>of</strong>ficer <strong>of</strong> <strong>Parliament</strong> are determined by <strong>Parliament</strong>,also by means <strong>of</strong> an Address to the Governor-General.In <strong>New</strong> <strong>Zealand</strong> <strong>of</strong>ficers <strong>of</strong> <strong>Parliament</strong> have been created only rarely, despite callsfor agencies such as the Human Rights Commissioner, the Children’sCommissioner, the Commerce Commission, and the Independent Police Complaints
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