Review of legislation relevant to State sector service

Purpose

A sample of current New Zealand legislation was examined to determine whether there were legal barriers to the delivery of public services via electronic channels. This preliminary search was restricted to statutes only, and did not cover regulations and rules.

Role of the Electronic Transaction Act, 2002

In 2002, the Electronic Transactions Act was passed into law. This Act defines electronic transactions and provides for the inclusion of the transmission of information and services via electronic mediums. In part, the Act is intended to clear up any lack of clarity regarding the interpretation of service delivery specifications in existing legislation.

The purpose section of the Act states that:

"The purpose of this Act is to facilitate the use of electronic technology by -

a) reducing uncertainty regarding -

i) the legal effect of information that is in electronic form or that is communicated by electronic means; and

ii) the time and place of dispatch and receipt of electronic communications; and

b) providing that certain paper-based legal requirements may be met by using electronic technology that is functionally equivalent to those legal requirements." [Purpose section]

Categories of legislation

For this assignment it was important to look at a sample of other existing legislation to see if there were specific legal directives that particular services be delivered by means that specifically excluded the possibility of electronic service delivery. An online search [www.legislation.govt.nz] of a sample of long-standing, and more recent, Acts was carried out to ascertain the extent to which the delivery channels for government services are specified in legislation.

It may be that there are some pieces of legislation that specifically require manual forms of service delivery that have not been picked up in this sampling. However, it has been possible to get a preliminary view of the general way that service delivery is dealt with by legislation. The summary below sets out the broad approaches that were most common in the legislation sampled.

Service delivery is referred to in legislation in a range of ways from describing services but not specifying the form or mode of delivery, to being far more prescriptive about the variety of ways that services can legitimately be provided. The legislation reviewed has been divided into categories that describe the way service delivery is dealt with, and supporting examples have been provided.

1 No specification of delivery process

In this category, legislation describes powers, duties, and the circumstances in which reports must be made, and details entitlements to various population groups but does not specify delivery channels. Examples include:

Courts Security Act 1999

Describes powers to ask for identification; to search; to examine detected items; and to detain. It also sets out duties relating to such things as taking items into temporary custody.

Coroners Act 1951

Describes the circumstances in which a report must be made.

Social Security Act 1964

Details monetary benefit entitlements of various population groups.

Supreme Court Act 2003

Sets out rights of appeal.

Income Tax Act, 1994

This Act is long and complex. Details of taxation are specified, but not delivery channels.

The samples of legislation in this category provide no directives on how powers are to be applied, or how duties should be carried out. Similarly, no directions are provided as to how, or what form, reports must take and no instructions are given as to how the entitlements can, or should, be delivered to individuals.

2 Limited specification of delivery process

A number of Acts do provide a limited specification on the form of services. For the most part these are restricted to a directive that certain actions should be written, or that draft copies of work or notices of action/s should be sent to particular parties. Examples include:

Electoral Act, 1993

This Act largely describes powers and functions relating to parliamentary elections. However, those sections that relate to members of political parties giving notice of their intention to quit contain a requirement to give written notice.

"(a) the member of Parliament delivers to the appropriate person a written notice ...

(b) the parliamentary leader of the political party ... delivers to the appropriate person a written [Italics in both clauses added for emphasis.] notice ..." [s3]

Conservation Act, 1987

References to the New Zealand Conservation Authority require that any request for special meetings should be made in writing [s6H (2)]. When reference is made to the drafting of conservation plans, the only wording regarding the channel of delivery is to "send a draft" (e.g. s17B (k)(i) and (k)(ii)). No specific channel is specified.

However, the Act does implicitly allow for alternative, non-traditional channels of communication. For example, with respect to consultation on draft conservation policies it allows the Department to:

"State that the draft (proposed policy) [Italics added for clarification.] is available for inspection at the places and times specified in the notice ..." [s17B (3)(b)(i)]

Similarly, the Act allows for departmental communications to be published

"(i) At least twice in a daily newspaper ...

(ii) In such other communications media [Italics added for emphasis.] and on such occasions as the Minister may direct ..." [s6P (4)(d)].

Customs and Excise Act, 1996

Reference is made in this Act to "... notice in writing" for the variation or revocation of conditions [s13 (1)] and the granting or refusal of licenses [s12 (6)]. No specific channel is specified.

The following statutes were also examined, and no evidence was found of delivery channels being specified beyond the requirement to provide certain types of information/ applications "in writing":

• War Pensions Act, 1954
• Victims' Rights Act, 2002
• Trespass Act, 1980
• Statistics Act, 1975
• Sentencing Act, 2002
• Racing Act, 2003
• Land Transport Act, 1998
• Health Amendment Act, 1998
• Guardianship Amendment Act 1998.

In this category of legislation, there is no interpretation of 'written notice". This poses the question of whether email is an acceptable channel to receive a written notice. The legislation does not refer to a requirement for a handwritten signature; therefore one can assume that an electronic delivery channel is not precluded. This is exactly the type of imprecision that the Electronic Transactions Act, 2002 was developed to clarify.

3 Specified delivery process

There is some legislation however, that moves to a more precise specification of the service delivery process. Some of these specify traditional forms (i.e. manual) of service delivery, while others allow for the emergence of electronic technologies. The more modern the legislation, the more likely it is that recognition of the possibility of electronic transactions is made. Examples include:

Children, Young Persons and their Families Act, 1989

Provisions for forms of manual service delivery are specified in this Act. For example:

"The information required by subsection (1) of this section to be given to any person shall be given -

(a) orally, and, where practicable, in writing; and

(b) where practicable, in a manner and in language that the person understands." [s8 3(a)]

Throughout the Act all references to service delivery is qualified by the words "in a manner and in language that can be understood". It is arguable that this does not preclude the use of alternative electronic channels. In some circumstances, and in some cases, non-traditional channels may fulfill this requirement better than direct face-to-face, oral presentation. There is also no directive that 'oral' delivery of information has to be made face-to-face as opposed to via the telephone, digital TV, or video conferencing.

Births, Deaths and Marriages Registration Act, 1995

Notice of births is specified in the Act, but is formulated to enable electronic transactions:

"(a) Complete, sign, and give to ...in the prescribed form..., or

(c) Send the prescribed information ... by an electronic means approved ... ." [s4 (1)].

The manner in which births and deaths can be notified to the Registrar can be made is also specified:

"(1) ... by completing and signing the prescribed form and giving, sending, or posting it to the Registrar." [s11] [s47 1(a).

The Act also specifies the way that marriage information is to be recorded (signed, witnessed, duplicate copies of an approved prescribed form), and sent to the Registrar:

" Within 10 days of solemnising the marriage, give, send, or post the other form to the Registrar." [s55 1(b)]

These instructions would appear to exclude the use of electronic means of service delivery. It is worth noting that the registration and notification of significant life events such as births, deaths or marriages often involve responsibilities by multiple parties for different parts of the process. For example, doctors may certify that a person is deceased, but it is funeral directors who register the death with the Registrar. These two processes are usually carried out in different circumstances and therefore lend themselves to different service delivery processes.

Other examples in this category include the Companies Act, 1993 and the Public Trust Act, 2001. In both of these cases, a significant part of business can be transacted electronically, but the registration of a company (Companies Act, s12) and regulations around the method of contracting (Public Trust Act, Part 2, s12) both require the signature of relevant parties on paper.

4 Provision for electronic delivery channels

A more limited number of pieces of legislation allow for the possibility of electronic service delivery, or explicitly enable such transactions to take place. Examples include:

Official Information Act, 1982

This Act contains generic reference to the manner in which some forms of information can be provided. For example, notice of extensions can be made "... by giving or posting notice of the extension ..." [s15A (3)].

Other parts of the Act are more prescriptive as to the mode of service delivery, but again the channel for delivery is not specified. For example, with reference to documents that may be encoded (such as in shorthand) the Act specifies that officials can meet their obligations for disclosure by "... furnishing oral information about its contents" [s16 (1) (f)]. There is no specification that 'oral information' has to be delivery face to face. Other channels for oral delivery such as the telephone, digital TV or video link may be possible.

However, this is one of the few statutes that also allows implicitly for the possibility of electronic service delivery:

"Subject to section 17 of this Act, the Department or Minister of the Crown or organizations shall make the information available in the way preferred by the person requesting it [Italics added for emphasis.] unless to do so would -

(a) impair efficient administration; or

(b) be contrary to any legal duty ...

(c) prejudice the interests protected by section 6 or section 7 ..." [s16 (2)].

Immigration Act, 1987

This statute is one of the few that includes clauses to ensure that electronic forms of service delivery are not excluded from the provisions of the Act, and that the integrity of electronic services are validated.

For example, section 10A (2) deals with the issuing of an invitation to apply for residence. This is detailed as a matter of discretion by the Minister, or appropriate visa officer or immigration officer. Subsection (6) further qualifies the discretion specified in subsection (2) as follows:

"To avoid doubt, the discretion referred to in subsection (2) includes -

(a) use by the Minister or visa officer or immigration officer of an automated electronic system that applies criteria predetermined by Government residence policy; and

(b) adoption of any result of that process for issuing or in determining whether or not to issue an invitation to apply for residence" [s10A (6)].

Land Transfer (Computer Registers and Electronic Lodgement) Amendment Act, 2002

[aligned with Land Transfer (Automation) Amendment Act, 1998]

These were the only two statutes found in this sample of legislation that contained specific, detailed references to the electronic environment and was designed to enable electronic service delivery. They use the same language as is contained in the Electronic Transactions Act, 2002.

The Purposes section of the Act states:

"The purposes of this Act are -

(a) to enable information technology to be used for the following purposes:

i. registering instruments, dealing, and other matters under the principal Act

ii. recording and storing ...

iii. preparing and lodging electronic instruments ... ." [Purpose]

Under section 4 Interpretation details of electronic channels are set down:

" "medium" includes -

(a) any electronic, electromagnetic, optical, digital, or photographic process or system; and

(b) any paper; and

(c) any other means of recording, reproducing, copying, or storing information." [s4 Interpretation]

In the same section a definition is also provided for the term "unique identifier" to support electronic security.

The Act goes on to specify electronic service delivery. For example, section 7 states that the Registrar may "create a computer freehold register for any freehold interest in land that is subject to the principal Act" [s7]. In this sample, it is the only piece of legislation that refers explicitly to an ability to use electronic means to deliver a service.

National Library of New Zealand (Te Puna Matauranga O Aotearoa) Act, 2003

This Act also recognises the electronic environment and accommodates the changes this makes to the operating nature of the National Library. The Purpose of the Act includes a clause to:

"ensure that the power to request public documents referred to in paragraph (g) extends to internet documents and authorizes the National Librarian to copy such documents ..." [3. Purpose (h)]

Further, the Act includes the following definitions:

" "document" means a document in any form, and includes -

... (b) information recorded or stored by means of any recording device, computer, or other electronic device, or any other device, and material subsequently derived from information so recorded or stored; and

"electronic" includes electrical, digital, magnetic, optical, electromagnetic, biometric, and phototonic ..." [s4. Interpretation]

Again, this wording is derived from the Electronic Transactions Act, 2002. But, like many of the much earlier statutes, the issue of service delivery is generalised in such a way as to not exclude electronic service delivery but without specifying any particular channel of delivery. For example:

"The purpose of the Guardians is to provide assurance to the people of New Zealand that - [the collections of the Alexander Turnbull Library] [Italics added for clarification.]

... and made accessible for all the people of New Zealand in a manner consistent with their status as documentary heritage and taonga; ..." [s17 (b)(ii)]

Archives Act, 1957 [Amended, 1988]

This Act was amended slightly before e-government came to the forefront, but recognises the changing environment. "Public records" are interpreted as "... all papers, documents, or records of any kind whatsoever officially made or received by any Government office in the conduct of its affairs ..." [s2 Interpretation].

Conclusion

Manual service delivery

In one or two particular cases, manual processes for service delivery are specified in legislation. For example, recording and registering marriages under the Births, Deaths and Marriages Registration Act, 1995 and notifying young persons of some adverse actions under the Children, Young Persons and their Families Act, 1989. In these cases, the interactions are often of a nature that is unlikely to lend itself to being delivered electronically. For example, marriage ceremonies are often held in places where manual processes are more likely to be convenient and appropriate (such as a beach or a garden).

The additional requirement for the signature of witnesses also lends itself more easily to manual processing. In the future, technology improvements may provide a means of carrying out these duties electronically. To do so, however, would require a change in legislation - probably including an amendment to s22 of the Electronic Transaction Act, 2002 that excludes electronic recording where witnessing is required. There may be other Acts that were not included in this sample that have similar restrictions on electronic service delivery. To change legislation would require a comprehensive business case that set out the business and consumer benefits to having services delivered via an electronic channel.

Some types of public services are necessarily carried out face-to-face (e.g. social work interventions with young persons and/ or their families; teaching, where it takes place in a classroom; some Police interventions; some personal health services/ assessments). This does not preclude the fact that work processes that support such interactions (e.g. case management notes) can be made more efficient by electronic technologies.

Future electronic service delivery

The Electronic Transactions Act, 2002 provides a legislative framework that enables those Acts that do not specifically refer to manual processes to be interpreted to include electronic forms of documentation, correspondence, storing and recording mechanisms. Thus for example, requirements for 'written notice' can quite unequivocally be met via email correspondence.

The examples set out above where manual processes are specified in legislation appear to be rare cases where the nature of the interaction dictates the channel of service delivery. For the majority of the cases in this sample of statutes there appears to be no legal directions for specific channels of service delivery, nor are electronic channels specifically excluded. The Electronic Transactions Act, 2002 has been passed to ensure that electronic mediums are accounted for in interpreting legislation.

It can be concluded therefore that there are few legal inhibitors to the development of new electronic channels of service delivery.

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