Contents
- Title page
- Copyright/Terms of Use
- Preface
- Chapter 1: Introduction
- Chapter 2: Recruitment of Members for Boards and Bodies
- Chapter 3: Appointment of Members for Boards and Bodies
- Chapter 4: Removal from Office
- Chapter 5: Induction for Appointees
- Chapter 6: In Support of Board Performance
- Annex: Background for all statutory Crown entity appointments
Chapter 4: Removal from Office
Generally, the person with authority to appoint a board member also has the power of removal, which includes:
-
removal or suspension of a person from office
-
reappointing or reinstating a person to the office, or
-
appointing another person in place of a member who has vacated office, has died, is absent, or is incapacitated in a way that affects the performance of their duty.
In the case of Crown entities, an application may be made to the court for injunctive relief to stop a member or a board breaching duties (see section 60 of the Crown Entities Act). The Act also contains a power to remove the whole board of a statutory entity, if the members have breached the collective duties (section 58). Depending on the circumstances of a breach, and any immunities from proceedings that may apply, the entity itself could take proceedings against a member who has not acted in accordance with the duties of an individual board member.
Responsibility for removal
Unless there are specific statutory or governance provisions to the contrary, each board member holds office at the pleasure of the person (Minister or Governor-General as the case may be) who appointed them.
For Crown entities, any decision to remove a board member must be consistent with the principles of natural justice (e.g. section 5 and section 27 of the Bill of Rights Act 1990) and a proper consideration of the matter irrespective of the type of entity (s. 41).
Powers and notification of removal
|
Crown agent |
Autonomous Crown entity |
Independent Crown entity |
|
|
Power to remove appointed members of boards |
At Minister’s discretion |
Minister, for justifiable reason |
Governor-General, for “just cause” on Minister’s advice after consultation with the Attorney-General |
|
Power to remove elected board members |
By Minister, for “just cause” |
By Minister, for “just cause” |
Not applicable |
|
Notification of removal to appointed members |
Written notice stating the date of the removal (with a copy sent to the entity) |
Written notice stating the date of the removal and the reasons for the removal (with a copy sent to the entity) |
Written notice stating the date of the removal and the reasons for the removal (with a copy sent to the entity) |
|
Notification of removal to elected members |
Written notice stating the date of the removal and the reasons for the removal (with a copy sent to the entity) |
Written notice stating the date of the removal and the reasons for the removal (with a copy sent to the entity) |
Not applicable |
“Just cause” is defined in the Crown Entities Act. The definition includes (but is not limited to) misconduct and breach of board members duties. It is a demanding and objective requirement; officials should be well aware of relevant case law if such a step is mooted.
Legislation covering specific Crown entities may impose different thresholds before removal can occur, e.g. as section 36 of the New Zealand Public Health and Disability Act does with elected members of District Health Boards. Depending on the relevant legislative powers, the threshold before such an action can be taken by a Minister may be very high.
The Minister (or the monitoring department, on a Minister’s behalf) should seek the view of the Cabinet Office if the removal of a board member is contemplated. The responsible Minister also should consider informing Cabinet colleagues of any such intention and obtaining legal advice.
The Crown Entities Act also requires the Minister to:
-
give notice of the removal in writing to the member and stating the reasons for the removal, with a copy sent to the entity, before the removal takes effect
-
notify the decision via the New Zealand Gazette, as soon as practicable after giving the notice or after the notice has been given by the Governor-General.