Importance of understanding legal aspects of central banks: Case of appointment at Reserve Bank of New Zealand…

The role of economics and law especially in central banking is becoming an increasingly an important topic. But as economic students, we hardly study law and whatever little is mostly for contracts etc.

Given how central banks are basically a legal entity and what is broadly does is defined under law, there should be much more attention on central bank act, its governance and highly crucial appointment rules.  Things like appointment rules immediately raise the question of how and why central bank statutes differ across countries? The answers lie in political economy and other aspects which we just miss.

Croaking Cassandra blog has been writing on how the appointments of chief of New Zealand are not as per law. The crux of the matter is the currenct Gpvernor term is getting over and NZ is facing elections. The Government has decided to appoint an interim Governor and appoint a full-term one only after elections. But the central bank law does not allow this.

In its recent post, Cassandra again raises the issue:

Just a couple of days after the election, Graeme Wheeler’s term as Governor of the Reserve Bank expires and Wheeler will leave office.

In the normal course of events, a new appointment of a permanent Governor would long since have been made.   But as officials belatedly realised late last year, and as the Reserve Bank Board had eventually to be directed to recognise, a new permanent appointment of someone to take office in late September could not be made in the run-up to the election, without breaching the conventions that govern how the period around elections is handled.

I’d been drawing attention to the issue for 18 months or so, and had suggested that the practical solution would have been to have invited Wheeler to accept a short extension of his term, allowing whoever formed the new government after the election to make their own appointment.  We don’t know whether Wheeler wasn’t willing to consider that, or whether the Minister of Finance wasn’t, but there were no legal obstacles to such an extension.  And yet it didn’t happen.

Instead in early February, the Minister of Finance announced that he was appointing the existing Deputy Governor (and deputy chief executive) as acting Governor for six months after Wheeler’s departure.  Spencer in turn had indicated that he would not be seeking permanent appointment and would retire at the end of the acting Governor period.

There is provision in the Reserve Bank Act for an acting Governor in some circumstances.  Thus, when in 2002 Don Brash resigned in the middle of his term to enter politics, Deputy Governor Rod Carr was appointed as acting Governor for a few months.

But ever since the Spencer appointment was announced I’ve been raising questions about the legality of this appointment (I have no concerns at all about Spencer himself).   There was this post on the day the Spencer appointment was announced.   And then a later post outlining the argument in more detail.   The gist of the argument is that the wording of the Act appears to provide for an acting Governor only when a vacancy arises in the course of a Governor’s term (as happened in the Brash/Carr case), and not when a Governor’s term expires and the Minister decides, for whatever reason, not to make a permanent appointment for a time.  Not only do the words naturally lead to that interpretation, but the overall context (the way related bits of the Act are designed) suggests that that was indeed Parliament’s intention in using those words.

I lodged OIA requests with the Reserve Bank Board (responsible for recommending appointees), the Minister of Finance, and with The Treasury (principal advisers to the  Minister of Finance).   The Board’s response was both obstructive, and indicative of how badly they appear to be in breach of the Public Records Act.  But, as usual, the response from Treasury was much more helpful.   In this post, I outlined the considerable amount we learned about the process from the papers Treasury released.      But The Treasury withheld the advice they had received from Crown Law on the lawfulness of various aspects of the appointment, and there was not even any report of the Crown Law reasoning in any of the policy advice documents.

Hmm.

Some might say so what?Well, it has immediate consequence on RBNZ policy:

I have also argued previously that there is no statutory provision for the signing of a Policy Targets Agreement between the Minister and an acting Governor.   That makes sense on my interpretation of the Act because on that interpretation, there can only be an acting Governor when an existing gubernatorial term has been unexpectedly interrupted.   Thus, a Policy Targets Agreement is signed “for that person’s term of office” (section 9) before a Governor is appointed.   And when Don Brash resigned his term still had another 17 months to run, and there was already a PTA in place for that term.  Thus when the Minister appointed Rod Carr to be acting Governor for a few months of that remaining term, there were already policy targets in place for the Bank, signed by the person whose term Carr was partially completing.      There is nothing comparable from 27 September this year, since the PTA Wheeler signed with Bill English in 2012 will have expired the previous day.

Crown Law attempts to get round this by asserting –  and it is simply an assertion  –  that  acting Governor “is the Governor”.  If he is the Governor, there must be a PTA signed with him before he is appointed.   But they offer no statutory support for this proposition (acting Governor “is” Governor).  After all, the Act talks of an acting Governor having the powers and responsibilities of the Governor, but still maintains a distinction between the two titles.   If there was no distinction, there would be no need for the acting Governor statutory provisions.  But Parliament chose to make such a distinction, and must have intended something thereby.    And it seems to  have done so because of the emphasis Parliament placed on having all actual gubernatorial appointments be for five years.    There is no provision in the Act for an acting Governor to sign a PTA, because the Act clearly envisages (literal wording and policy purpose) that an acting Governor would be appointed only during the unexpired portion of a term of a substantive Governor.

Anyway, you can read the summary of the Crown Law advice yourself.  Perhaps you’ll be persuaded.  I’m not.     It would appear that (a) an unlawful appointment is about to be (or has already been) made, and thus the Reserve Bank will have no lawful head after Graeme Wheeler leaves office on 26 September, and (b) that the documentGrant Spencer and Steven Joyce signed on 7 June, which purports to be a Policy Targets Agreement under section 9 of the Reserve Bank Act is, in fact, no such thing.

If so, not only will the Bank have no lawful head on 27 September, it will have no Policy Targets Agreement to guide and constrain any monetary policy actions it takes, or purports to take, over the period from them until the new permanent Governor takes office.   Even if my interpretation were finally to be shown to be wrong in law, the fact that it is a plausible interpretation –  I would argue the most natural interpretation, consistent with the provisions of the Interpretation Act –  should raise serious concerns, and leaves some doubt hanging over the ability of the Bank to act effectively over the next few months.

Quite possibly, the Bank won’t need to do much in that time.  Markets don’t expect the OCR to change, and it doesn’t seem likely that debt to income limits will be imposed either.  But circumstances can change quickly.  We might have a new government in a couple of weeks, and the Labour Party has indicated a desire to have the Bank focus on unemployment as well as inflation.  A natural step in the early days of such a new government would have been to seek a change in the PTA to make that expectation explicit, pending a subsequent change in the Act.   But what, formally, is the status of the existing document, let alone any new one Grant Robertson might seek to put in place?  Can he override (section 12) a purported PTA which isn’t a real PTA?  (In any case, shouldn’t the Opposition have been consulted about the 7 June purported PTA, given that it was an action being taken, to come into effect after the election to shape the conduct of macro policy for the first six months of any post-election government’s term).

The sad thing about this whole episode is how unnecessary it was.

We also learnt during India’s demonetisation that how poor our understanding of the law was. Ultimately, law prevails..

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One Response to “Importance of understanding legal aspects of central banks: Case of appointment at Reserve Bank of New Zealand…”

  1. Practical application of law in economics | MERCIAR BUSINESS CONSULTING Says:

    […] https://mostlyeconomics.wordpress.com/2017/09/11/importance-of-understanding-legal-aspects-of-centra… […]

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