5.11 As a general rule, Ministers should put before their colleagues the sorts of issues on which they themselves would wish to be consulted. Ministers should keep their colleagues informed about matters of public interest, importance, or controversy. Where there is uncertainty about the type of consideration needed, Ministers should seek advice from the Prime Minister or the Secretary of the Cabinet. Similarly, departments should seek advice from the office of the portfolio Minister, or from the Cabinet Office.
- significant policy issues;
- controversial matters;
- proposals that affect the government's financial position, or important financial commitments;
- proposals that affect New Zealand's constitutional arrangements (see paragraph 5.76);
- matters concerning the machinery of government;
- discussion and public consultation documents (before release);
- reports of a substantive nature relating to government policy or government agencies;
- proposals involving new legislation or regulations (see chapter 7 and the CabGuide);
- government responses to select committee recommendations and Law Commission reports (see paragraphs 7.21, 7.119 – 7.122, and the CabGuide);
- matters concerning the portfolio interests of a number of Ministers (particularly where agreement cannot be reached);
- significant statutory decisions (see paragraphs 5.34 – 5.38);
- all but the most minor public appointments (see the CabGuide);
- international treaties (see paragraphs 5.77 – 5.80); and
- any proposals to amend the provisions of the Cabinet Manual.
- matters concerning the day-to-day management of a portfolio that have been delegated to a department;
- operational (non-policy) statutory functions; or
- the exercise of statutory decision-making powers (within existing policy) concerning individuals.
It may, nonetheless, be appropriate to bring an item falling into this list to Cabinet's attention if it is significant or likely to be controversial.
5.14 Ministers are expected to consult relevant ministerial colleagues before submitting papers that deal with significant or potentially controversial matters, or that affect other Ministers’ portfolio interests.Papers that do not contain evidence that appropriate consultation has taken place may be deferred from a particular meeting. In particular, Ministers are required to consult:
- the Minister of Finance on all proposals seeking additional resources;
- the Minister of State Services on machinery of government issues;
- the Minister of Foreign Affairs on all proposals relating to international treaties;
- the Minister of Justice on all proposals affecting constitutional arrangements;
- the Attorney-General on all proposals raising significant legal issues; and
- the Attorney-General or the Minister responsible for Treaty of Waitangi settlement obligations, if there is one, on any proposal with potential impacts on existing Treaty of Waitangi settlements.
5.15 The CabGuide provides detailed guidance on consultation requirements.
5.16 In a coalition or minority government, the coalition or support partners are likely to agree to specific consultation procedures, which may be approved by Cabinet and promulgated by Cabinet Office circulars. Ministers are responsible for ensuring that consultation is undertaken in accordance with any coalition or support agreements entered into between political parties.
5.17Careful planning, good faith, and a “no surprises” approach are key to making the arrangements work effectively. All Ministers and chief executives need to be familiar with the current arrangements and ensure that they have processes in place to implement them. Managing the consultation processes and other aspects of the relationships may take some time. Ministers and officials should factor the time required for consultation into their planning on each issue.
5.19 Almost all policy proposals have implications for other government agencies. The initiating department or other agency with policy responsibility and the portfolio Minister must ensure that all other agencies affected by a proposal are consulted at the earliest possible stage, and that their comments are taken into account and reflected in the paper as appropriate. Consultation may sometimes be needed with agencies that have an advisory role, such as the Office of the Privacy Commissioner. See the CabGuide for full guidance on consultation procedures, and paragraph 5.33 for guidance on collective decision-making and government agencies.
5.20Departments and other agencies with policy or advisory responsibilities should work closely with one another when developing advice in preparation for papers for Cabinet and Cabinet committees and, where possible, reach consensus on advice and proposals submitted to the portfolio Minister. If consensus is not reached, a Cabinet paper may reflect different ministerial positions or departmental advice so that Cabinet can take decisions based on all the facts and an appreciation of the options.
5.21 In some cases, legislation may prescribe a consultation process to be followed before the Minister can make a statutory decision. The Minister and department concerned should ensure that the required consultation has taken place (see also paragraphs 5.34 – 5.38).
5.22 A key consideration in developing workable and effective policy is assessing the need for, and the timing of, consultation with Māori (including relevant iwi, hapū, and whānau), the public, and relevant stakeholder groups. Departments should bear in mind that consultation may be undertaken face-to-face, using discussion documents, or using digital consultation tools. See the CabGuide for information on public and stakeholder consultation.
5.23 Discussion at Cabinet and Cabinet committee meetings is informal and confidential. Ministers and officials should not disclose proposals likely to be considered at forthcoming meetings, outside Cabinet-approved consultation procedures. Nor should they disclose or record the nature or content of the discussions or the views of individual Ministers or officials expressed at the meeting itself. The detail of discussion at Cabinet and Cabinet committee meetings is not formally recorded, or included in the minutes.
5.24 The principle of collective responsibility underpins the system of Cabinet government. It reflects democratic principle: the House expresses its confidence in the collective whole of government, rather than in individual Ministers. Similarly, the Governor-General, in acting on ministerial advice, needs to be confident that individual Ministers represent official government policy. In all areas of their work, therefore, Ministers represent and implement government policy.
5.25 Acceptance of ministerial office (whether inside or outside Cabinet) means accepting collective responsibility. Issues are often debated vigorously in the confidential setting of Cabinet meetings, although consensus is usually reached and votes are rarely taken. Once Cabinet makes a decision, Ministers must support it (except as provided in paragraphs 5.27 – 5.29), regardless of their personal views and whether or not they were at the meeting concerned.
5.26 In a coalition government, Ministers are expected to show careful judgement when referring to party policy that differs from government policy. Subject to paragraphs 5.27 – 5.30, a Minister’s support and responsibility for the collective government position must always be clear (see paragraph 6.18 on the difference between coalition and support arrangements).
5.27 Coalition governments may decide to establish “agree to disagree” processes, which may allow Ministers within the coalition to maintain, in public, different party positions on particular issues or policies. Once the final outcome of any “agree to disagree” issue or policy has been determined (either at the Cabinet level or through some other agreed process), Ministers must implement the resulting decision or legislation, regardless of their position throughout the decision-making process.
5.28 “Agree to disagree” processes may only be used in relation to differing party positions within a coalition. Any public dissociation from Cabinet decisions by individual coalition Ministers outside the agreed processes is unacceptable.
5.29 Ministers outside Cabinet from parliamentary parties supporting the government may be bound by collective responsibility only in relation to their particular portfolios, including any specific delegated responsibilities. Under these arrangements, when such Ministers speak about issues within their portfolios, they speak for the government and as part of the government. When they speak about matters outside their portfolios, however, they may speak as political party leaders or members of Parliament rather than as Ministers, and do not necessarily represent the government position.
5.30 When such Ministers represent the government internationally, they speak for the government on any issues that foreign governments may raise with them in their capacity as Ministers. When they are overseas in a personal capacity, for example as party leaders, they are not bound by collective responsibility. The capacity in which they are speaking must always be clear to those present.
5.31 Parliamentary Under-Secretaries are also bound by the principle of collective responsibility, except as provided in paragraphs 5.26 – 5.30. See paragraphs 2.48 – 2.51 for the appointment of Parliamentary Under-Secretaries.
5.32 Special provisions apply to the exercise of the Attorney-General's law officer function in the collective context (see paragraph 4.4).
5.33 Once a decision is reached by Cabinet, particularly on a matter on which agencies hold differing views, both officials and Ministers need to take care when making comments or statements about the matter in the public arena. Comments or statements should reflect the fact that a collective government decision has been made. Officials from departments or other agencies with policy responsibilities may be required to comment publicly (for example, at a select committee hearing) on the effect of a particular decision on their area of operation. It is important that such comments are shaped as factually and neutrally as possible.
Exercise of Ministers' statutory powers and functions in the collective Cabinet context
5.34 Many statutes provide for individual Ministers to take certain actions or make certain decisions. In each case, the Minister must ensure that he or she considers all relevant matters and does not take into account irrelevant matters. Relevant matters will vary depending on the particular statute under which the decision is to be made. They may be expressly stated in the statute or implied (for example, in the scheme, the long title, and the purpose of the Act). If the Minister fails to consider all relevant matters in making a decision, or takes into account irrelevant matters, the decision may be susceptible to judicial review.
5.35 Ministers should, however, inform Cabinet of any exercise of an individual statutory power that merits attention at the Cabinet level (see paragraph 5.12 for a list of matters that should be taken to Cabinet). Informing Cabinet of the intended decision enables the Minister’s colleagues to understand the basis on which the Minister intends to make the decision, and to defend the decision publicly and collectively.
5.36Special considerations apply to protect the integrity of the statutory decision-making process when a Minister brings an item to Cabinet on a statutory decision or action he or she intends to make. Cabinet cannot make, or appear to make, a decision that the statute requires a Minister to make. Accordingly:
- the Cabinet paper should be presented in the form of an informative briefing for Ministers;
- Cabinet may provide a forum for Ministers other than the decision-maker to comment on and provide information on the intended decision, but the decision-making Minister may legitimately take into account only the information and comments that are relevant; and
- the Minister's intended decision should be noted rather than agreed to by Cabinet.
5.37 If Ministers are unsure about whether to take an issue concerning the exercise of a statutory power or function to Cabinet, they should seek guidance from the Prime Minister or the Secretary of the Cabinet. For further information about ministerial decision-making and judicial review, see paragraphs 4.19 – 4.26.
5.38 In some cases a Minister’s statutory decision can be effected only by the Governor-General acting on the advice and with the consent of the Executive Council. The Executive Council is the formal institution through which the government collectively advises the Governor-General, and it is Cabinet that authorises the submission of items to the Executive Council. An individual Minister, therefore, can take an item to Executive Council only with Cabinet’s collective agreement. See paragraphs 1.21 – 1.49, and the CabGuide, for further information on the Executive Council.