Chapter 5: Removal from Office

Sections in this Chapter: 

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 at www.legislation.govt.nz/act/public/2004/0115/latest/DLM329991.html). The Act also contains a power to remove the whole board of a statutory entity, if the members have breached the collective duties (see section 58 www.legislation.govt.nz/act/public/2004/0115/latest/DLM329989.html). 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 at www.legislation.govt.nz/act/public/1990/0109/latest/DLM225501.html and section 27 at www.legislation.govt.nz/act/public/1990/0109/latest/DLM225529.html) of the New Zealand Bill of Rights Act 1990) and a proper consideration of the matter irrespective of the type of entity (section 41 of the Crown Entities Act www.legislation.govt.nz/act/public/2004/0115/latest/DLM329968.html).

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 section 40 of the Crown Entities Act (www.legislation.govt.nz/act/public/2004/0115/latest/DLM329967.html). 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 Schedule 3 Clause 8 of the New Zealand Public Health and Disability Act 2000 (www.legislation.govt.nz/act/public/2000/0091/latest/DLM82052.html) 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.

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