Media Release 27/01/06
Ms Nicola McCully was appointed to the statutory position of Deputy Chief Censor of Film and Literature on the 17th September 2002 for a period of three years, commencing 1st October 2002. According to the 2003 Annual Report (p. 89) Ms McCully receives a salary package of between $130,00 and $140,000 and the The Chief Censor, Bill Hastings, receives a salary package of between $180,000 and $190,000 (“Total Remuneration and benefits”).
Her appointment to the Office of Film and Literature Classification was made under section 80(1) of the Films, Videos, and Publications Classification Act 1993 (“the Act”), which states:
“S. 80 Appointments to Classification Office:
(1) The Chief Censor and the Deputy Chief Censor must be appointed under section 28(1)(b) of the Crown Entities Act 2004 by the Governor-General on the recommendation of the Minister acting with the concurrence of the Minister of Women’s Affairs and Minister of Justice.”
Section 28(1)(b) of the Crown Entities Act 2004 states:
“A member of a statutory entity is appointed by –
(b) the Governor-General, on the recommendation of the responsible Minister, in the case of a member of an independent Crown entity.”
Ms McCully’s statutory position in the Classification Office, an independent Crown entity, expired on 1st October 2005 and became vacant on that date. The Minister of Internal Affairs, the Hon. Rick Barker, has not yet reappointed her to the position for another term of office, replaced her, or dismissed her. The Society is calling on the Minister to remove her from office for the reasons outlined in yesterday’s media release, gazette the vacancy and make a new appointment.
See SPCS media release (26/01/06): http://www.scoop.co.nz/stories/PO0601/S00075.htm
There is now no provision in the amended Films, Videos and Publications Classification Act 1993 for any “Continuation in office after term expires” in the case of a Deputy Chief Censor whose position has become vacant. Any provision that was there for such expiry situations, was repealed on Jan. 25, 2006 by s. 200 of the Crown Entities Act 2004 (see s. 82 of FVPC Act 1993; Reprint as at August 2005). This lack of any provision for continuation of the incumbent following expiry of their term of office, is in contrast to the situation that applies to the terms of office of appointees to the nine member Film and Literature Board of Review (see sections 94 & 95 of FVPC Act). The later statutory appointees, who are also appointed by the Governor General on the recommendation of the Minister, are legally entitled to:
“…continue to hold office, by virtue of the appointment for the term that has expired until … (a) that member is reappointed; or (b) a successor to that member is appointed; or (c) that member is informed in writing by the Minister that the member is not to be reappointed and is not to hold office until a successor is appointed.”
Almost four months has passed since the position of Deputy Chief Censor became vacant. The new Labour government took office on 7 November 2005. The Minister has provided no explanation to the Society or in any media release, as to why a vacancy has not been gazetted for the position of Deputy Chief Censor and/or why Ms Nicola McCully continues to hold the position and draw a tax-payer funded salary package of between $130.000 and $140,000.
The 2005 Annual Report of the Classification Office (for the year ending 30 June 2005), which is addressed to the Minister of Internal Affairs and was tabled in parliament on November 9, 2005 (two days after the government took office), states:
“The current position of the Deputy Chief Censor is DUE TO EXPIRE IN OCTOBER 2005 and the Department of Internal Affairs is responsible for the appointment process for the position.” [Emphasis added]
The position Ms McCully was appointed to on 17 September 2002 was made on the recommendation of the former Minister of Internal Affairs, Hon. George Hawkins, with the concurrence of the Minister of Justice, Hon. Phil Goff, and the Minister of Women’s Affairs, Hon. Laila Harre (who is no longer an MP).
The Hon. Rick Barker is now the Minister responsible for the Department of Internal Affairs.
APPENDIX
CROWN ENTITIES ACT 2004
28. Method of appointment of members –
(1) A member of a statutory entity is appointed by –
(a) the responsible Minister, in the case of a member of a Crown agent or autonomous Crown entity; or
(b) the Governor-General, on the recommendation of the responsible Minister, in the case of a member of an independent Crown entity
(2) The appointment must be made by written notice to the member (with a copy to the entity
(3) The notice must –
(a) state the date on which the appointment takes effect which must not be earlier than the date on which the notice is received; and
(b) state the term of the appointment; and
(c) be published by the responsible Minister in the Gazette as soon as practicable after being given.
SCHEDULE 6 of the Crown Entities Act 2004 states:
“81. Term of office –
“(1) A person appointed under section 80 may be appointed for any period not exceeding 3 years, and may from time to time be reappointed for any period not exceeding 3 years
“(2) Subsection (1) applies despite section 32(1)(b) of the Crown Entities Act 2004.
“(3) Clause 2 of Schedule 5 of the Crown Entities Act 2004 does not apply.”
SOURCE: http://www.legislation.govt.nz/browse_vw.asp?content-set=pal_statutes
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