Institute of International Affairs

Tonight's talk, the role of the Governor-General under MMP, is I suspect, awaited with some interest, and not just in this room. Quite coincidentally, it fits in with the theme of a seminar organised by the University of Waikato on the wider topic of "the constitutional implications of MMP." So no doubt you and others are looking forward to an erudite discussion of the reserve powers and other such weighty matters. But before I dip my rather tentative toe in those waters, it might be helpful if I were to stand back and briefly reflect on the role of the office in a more general way.

An evolving role

It is both trite and true to say that the office of Governor-General has evolved greatly over its short history. The early Governors were of course emissaries from England, appointments by the "mother country" to come and oversee the running of a remote colony. They were very much administrators.

But over the first half of this century New Zealand grew as a nation. It progressed from a colony, to a Dominion, to an independent sovereign nation. The former empire was transformed into a Commonwealth of Nations, coming together as equals to promote common goals. So too the role of the Governor changed.

In 1917 the name was changed to Governor-General, strangely enough to reflect the diminished role in the actual business of government. The Balfour Declaration in 1926 included an explicit statement that the Governor-General is the representative of the Crown, with powers analogous to those of the Sovereign in Britain. This statement made clear that a Dominion Governor-General now had no greater powers than the Sovereign. Previously, he had.

As so often happens in this area, one finds that Professor Quentin-Baxter has been there before us, and has already neatly encapsulated the point. In his well-known 1980 article, published in the Victoria University Law Review of that year, he wrote:

Under a colonial constitution, the Governor personifies the heavy hand of Whitehall. With each step towards autonomy his grip relaxes, until, with the advent of self-government, his apparent powerlessness becomes a symbol of the maturity of the country over which he presides.

We see an illustration of this perception in an article published at the same time by the then Governor-General, Sir Denis Blundell. He mentioned a conversation he had had with a young lady at a garden party, who commented that she was enjoying the occasion - but couldn't really see the need for a Governor-General. "Mr Kirk is a very fine man and I don't see why he doesn't do everything."

Sir Denis was of course, the first resident New Zealander appointed to the office. To my mind, his appointment was a turning point in the office. New Zealand was by now a mature self-governing nation. The shadow of colonial Governors was banished as New Zealanders began to be appointed to the office. But what then was the office for? What was a modern Governor-General to do?

In preparing for tonight, I went back through the speeches made by some of my recent predecessors. It is clear that the same question arose for each of them, and that each of them has contributed to the evolution of a new role. The evolution of course continues, shaped by the holders of the office and the situations around them.

The formal or legal or constitutional role is, since Balfour, very close to that of the Sovereign in Britain.

But in addition it is clear that the local representative of the head of state has purposes other than simply being her representative.

Sir Denis talked of three aspects: the constitutional, the ceremonial, and a unifying role. This triad has now been widely adopted. It is the basis for the description of the office in much of the publicity and information material produced by Government House.

The third branch of the triad now tends to be described as a community or representative role and is, on one view, the most interesting and the most important.

Dame Catherine has talked about that role as one of affirming certain ideas and ideals, of asserting civic virtues - those qualities that sustain a civil society. As she acknowledged, the key question is of course what those qualities might be. I also agree with her answer: that there are many, and that different incumbents at different times will have different priorities and varying emphases.

For Sir Paul Reeves, in office during the late 1980s, that role led him to deliver many speeches promoting discussion of the Treaty of Waitangi and its place in New Zealand's legal and social arrangements.

Dame Catherine in recent years has talked about the mode of public life and debate - the manner in which we go about social or political change as a symptom of the health of civil society.

This direction quickly takes one back to political institutions, and here Dame Catherine identified two core values closely related to the office I now hold.

The first is continuity. You can directly trace the line of Governors and Governors-General back to Governor Hobson and the signing of the Treaty of Waitangi in 1840. The second is legitimacy. The Crown is the ongoing holder and formal source of power in our constitutional system. But we live in a democracy. The twin principles of representative and responsible government mean that that power is, in general, exercised on the advice of elected representatives of the people, who are drawn from and are responsible to the House of Representatives.

So the Governor-General is both a continuing symbol and source of the power of the state - embodied, in a monarchy, in the notion of the Crown. But the government of the day has the democratic authority to control the exercise of that power. Dame Catherine has captured this role very simply, by describing the Governor-General's role as that of 'passing the parcel' of executive authority between successive governments. In doing so the Governor-General bears witness to their legitimacy.

You can see that this discourse on the broad role of the office has quickly taken us back to its constitutional functions, and to the issues of interest in the transition to the new political environment. When does the Governor-General 'pass the parcel' and how? Who stops the music and when?

But before I answer those questions, let me tell you a story.

A very devout man was once stranded on a rock by the incoming tide. He did not panic. The Lord, he said to himself, would save him.

As the water came up to his knees, a lad on a sailboard came by. "Can I help you?" he asked. "No," the man said, "I trust in the Lord, He will save me." So the windsurfer sailed away.

The water kept on rising, and reached the man's waist. A yacht approached. "We will save you," one of the yacht's crew shouted. "No thank you," said our pious friend. "I trust in the Lord: He will save me." So the yacht sailed away.

The tide kept rising - up to the man's neck. He was seen by people in a launch, but again rejected their offer of help: "No, the Lord will save me." But soon afterwards, the man drowned.

Very indignant, not to mention very wet, he arrived at the Pearly Gates. "I trusted in the Lord to save me, but he didn't," he exclaimed to St Peter.

"What do you mean?" said St Peter in reply. "Just who do you think sent the windsurfer, then the yacht and then the launch?"

I hope to show tonight that the means of our political salvation are already at hand. No divine intervention from the Governor-General should be needed.

The daily exercise of power

You may have noticed a little while ago that I said that "in general," the power of the state is exercised on the advice of the elected representatives of the people. That of course, is the outcome of a long power struggle that took place between the Sovereign and Parliament. It led to the personal prerogative powers and discretion of the Sovereign largely being removed, but not entirely. Some still remain. These are the reserve powers, those still reserved to the Sovereign, those kept in reserve until exercisable in the personal discretion of the Sovereign - in New Zealand, by her representative the Governor-General. They are exercisable without ministerial advice.

Constitutionalists differ as to what these powers might be. I will give you five. There is no doubt about the first. Some would doubt the last. The five are:

(1) to appoint a Prime Minister;

(2) to dismiss a Prime Minister;

(3) to refuse to dissolve Parliament;

(4) to force a dissolution of Parliament; and

(5) to refuse assent to legislation.

Examples of the use of all but the first of these powers are rare, and are always controversial. Indeed, the very rarity of their exercise gives rise to contentions that they have ceased to exist at all. That is particularly true of the last of them.

In the course of one after-dinner address, it is impossible to discuss each of these reserve powers. I will make only some general observations before moving on to the topic which is of most interest to New Zealanders in this year of the first MMP election; and that is the role of the Governor-General in the process of government formation; in other words, the exercise of the first and most firmly-established of the reserve powers - the appointment of a Prime Minister.

I am sure you will appreciate that listing the reserve powers is only half the story. For sitting on top of all of them is a complex tangle of convention and intersecting responsibilities.

Our constitution is made up of more than law. The formal legal rules will often create wide powers or discretions. But their operation is coloured by the conventional rules which prescribe that those powers should be exercised only in a certain limited manner. Conventional rules of this kind are not law, and cannot be enforced by the courts. They often conflict with, or supplement, the simple letter of the law. The sanctions for breach of a convention are political. They may rest with parliament, or the electorate, or more generally with public opinion.

To illustrate the point, let us return to basics for a moment, and the daily exercise of power by the Governor-General. Every week my formal powers are called upon. By convention, I exercise those powers on the advice of Ministers. I am advised to make appointments, to make regulations and other Orders in Council, to assent to legislation, and so on. Even in powers related to parliamentary actions, such as assenting to legislation, the formal documentation still records advice from the Prime Minister to me to sign. The advice is in essence an assurance that the correct parliamentary process has been followed and that it is now appropriate for me to sign the measure into law.

Usually this is all done on paper. But the country saw a vivid and moving illustration of these roles in November last year, with the ceremony surrounding the Queen giving the Royal Assent to the legislation giving effect to the Waikato-Tainui settlement, and recording the apology previously tendered by the Crown to the people of the Waikato. The Clerk of the House of Representatives began the proceedings. He presented the Prime Minister with the assent copies of the legislation and explained that the House had passed the Bill in accordance with proper process. The Prime Minister then turned to Her Majesty, and advised her that, the Bill having been passed by the House, she should now give the legislation her Royal Assent. Only once that advice was given, did the Queen then take the formal action which put the settlement into place and recorded for all time the acknowledgment by the Crown of the wrong that had been done.

There was much international interest in that event, and many media questions about whether New Zealand was getting the Queen personally to apologise. For those with any appreciation of the formal roles and processes involved in the business of government, it is obvious that she was not. The government was the effective actor in all of this. But it is notable that, to mark the weight of the occasion, and out of deference to ideas of continuity and history, it was considered appropriate for the action to be marked in this formal way by the sovereign. There are clear resonances here, for those who want to hear, of the abstract and more emotive descriptions of the purpose of the head of state.

So on a daily basis, I act when advised to do so by a Minister responsible to the House of Representatives. This does not make me, to take the words of a Chief Justice of Pakistan, a mere nodding automaton. As Governor-General, I have certain rights in the process of government. The great 19th century constitutional writer Walter Bagehot summarised these as the right to be consulted, the right to advise and the right to warn. A more modern statement is in the 1983 Letters Patent Constituting the Office of Governor-General in New Zealand.

As it states in Section XVI, "Our Ministers of the Crown in New Zealand shall keep Our Governor-General fully informed concerning the general conduct of the Government of Our said Realm, so far as they are responsible therefor, and shall furnish Our Governor-General with such information as he may request with respect to any particular matter relating to the Government of Our said Realm."

This informal communication with ministers is essential to the proper exercise of the Governor-General's constitutional role. Bagehot went on to make the point that the wise use of influence should obviate the need for the exercise of the reserve powers.

It has to be said very plainly that confidentiality is extremely important in the exercise of these rights. The Governor-General must therefore exercise a strict neutrality in public, and great tact in private. And the obligation of confidentiality rests equally on the Minister concerned. Without confidentiality, the constitutional relationship will be gravely disrupted. This obligation has always been respected in New Zealand.

If influence is unsuccessful, then of course, unless the situation is one that calls for the exercise of the reserve powers, it is the Governor-General's duty to act on the advice tendered to him.

Again, Quentin-Baxter is eloquent on the point. He is worth quoting at some length.

The legal fact is that if the Queen or a Governor-General dismisses a Prime Minister, or refuses his advice to dissolve Parliament, or withholds assent from a Bill, the courts and every civil power will give effect to that action. The political fact is that the use of these Draconian measures causes the constitution to shudder, and may set in train evolutionary or revolutionary forces. The constitutional fact is that any exercise of a reserve power affords evidence that constitutional conventions have been broken, because only such a breach on the part of ministers can justify a resumption of personal power by the Sovereign or her representative. Accordingly, the reserve powers are never without value when the possibility of their exercise causes a government to pause and think, and perhaps to conduct a dialogue with the Governor-General; but they are never fully successful if an impropriety, on one side or both, leads to their actual use.

... The reserve powers begin to lose their forbidding aspect when they are seen in true perspective, not as powers to interfere in the course of democratic government, but as obligations that are shared with ministers. The constitution requires that the Governor-General act on the advice of ministers responsible to Parliament, at least until those ministers advise him to act unconstitutionally.

Let me give you an example, from a near neighbour. Australia has recently marked the twentieth anniversary of November 1975, and an incident which indeed caused that country's constitution to shudder.

Paul Kelly, the editor of "The Australian", published his third book on the dismissal of the Whitlam government on its anniversary. It is simply titled "November 1975", and is an exhaustive analysis of the events and people involved. As one works through it, it becomes increasingly apparent that one of the reasons that debate continues about the merits of the actions taken by Sir John Kerr, and where fault lies, is that there was a web of intersecting responsibilities and conventions. Once one was questioned or departed from, it was as if other faultlines emerged elsewhere in the landscape. Others were then also drawn into departing from their accepted roles.

Some writers look to Fraser, saying that he should never have used the Upper House to hold a financial pistol to the head of the government. Blocking supply, they say, was an unorthodox use of the Senate. Some look to Whitlam, saying he should not have held onto office for so long once it was clear that he could not obtain supply. Although he still had the confidence of the lower House, it is argued that he should have called a partial or full election to let the people resolve the deadlock. And some look to Kerr, saying that he acted too soon, or for the wrong motives, or too secretly.

My aim is not to pass comment on the merits of the various actors in those events. (Indeed I am sympathetic to the view that much of the problem lies with a conundrum in the heart of the Australian constitution, caused by the desire to give the Senate some power in order to achieve agreement among the states to a federal constitution. The gamble that it would never be tested ultimately did not pay off.)

But the very complexity and variety of the Australian analyses, does illustrate well the point that our central constitutional processes are a web of interlocking responsibilities. For one support to be pulled out of line can cause the whole structure to shudder. Who started it can rapidly become irrelevant. It is this appreciation of the wider consequences of one's actions that is the discipline behind convention. Individual actors appreciate that they have a responsibility. To depart from those responsibilities risks damage to the wider system, and in areas that are difficult to predict or control. The complexity and fragility of the system leads, with surprising force, to a conservative ethos.

Forming a government: an international approach

To return to the power of appointment. This evening's audience is usually concerned with international issues, and the study of international precedents. So you will understand why, immediately before I took office, I travelled to Ireland and Denmark to discuss the role of the head of state in other proportional representation countries with broadly similar constitutional arrangements.

Those visits were instructive, as has been my other reading on overseas solutions. Although there can be significant differences in the constitutional arrangements and processes, as well as the political culture, the themes and principles that emerge are relevant.

In Denmark, governments are formed within a few weeks of a general election. The tradition seems to be of minority governments which are often coalitions as well. Apparently the polls close at 8pm, and the results are known by about 11pm. The process of government formation begins that night, as party leaders debate on television. The next morning the Prime Minister sees the Queen. If the election outcome is unclear, the Prime Minister will advise the Queen to meet with the leaders of all of the parties represented in the new Parliament, in a process known as "the Queen's round". The Queen meets each of the leaders for about 10 minutes, in order of the size of the party in the House. The party leaders bring written advice to the Queen on their view of what should now happen. The advice is simple, even direct. The typical example, I was told, was along the lines of "We advise the Queen to choose X to form a government". The advice is also made public immediately after the meeting.

Drawing on that advice, the Queen will then appoint a Royal Investigator, to lead political discussions on the formation of the next government. This person is usually the likely Prime Minister. The Investigator reports back on the results of the negotiations and advice on the next step. If all is going smoothly, that advice is likely to be to make a new appointment as Prime Minister. If not, the advice may be to begin "the Queen's round" again, so that further discussions can be held.

There are several consequences of this approach. The Queen is seen to be separated from active participation in the political discussions which must take place to form a new government. And the Queen is seen to be receiving information directly from all of the parties in the House. The Queen is therefore publicly distanced from the political process, but also - publicly - informed about the outcomes of that process.

In Ireland the situation is different again. The Constitution gives the President the power to appoint the Prime Minister, "on the nomination of the Dail" (Parliament). The House meets within a month of the election. Once a Speaker is elected, its first task is to vote on who to nominate to the President as Prime Minister. Thus the formal power of appointment still rests with the head of state. But again the head of state is explicitly distanced from the political negotiation and receives very public advice on its conclusion. In Ireland, however, the advice on who to appoint is channelled through the Parliament, rather than received directly from political parties, the Prime Minister, or some appointed intermediary.

I could give you other illustrations. Many commentators and publications are informing New Zealand about the practice in other jurisdictions. The similarity of themes and principles across countries, even in this most basic of national processes, is striking.

In all of the countries I have read about, it is very clear that the real responsibility rests with the political parties. They are the ones who, through negotiation, must find a viable government in the Parliament. Once negotiations between the parties have resulted in a clear view on who will be able to form the next government, the question is how that information is presented to the head of state in an authoritative form. A range of processes are used to ensure that the head of state does not need to begin to make subjective judgements on the merits of competing claims, but can exercise the relevant powers on the basis of unambiguous information and advice. Those processes include:

(a) a formal vote in the House before a Prime Minister is appointed (as in Ireland);

(b) public and separate advice to the head of state on who to appoint (along the lines of the Royal Investigator process in Denmark which I have described); or

(c) a clear and public process by which the head of state is provided with information on the initial position of political parties in the negotiations, and on the progress and outcome of those negotiations.

We will no doubt work out our own New Zealand answers. But against that weight of international practice, it is hard to see why the principles should be any different in the New Zealand context. The point is neatly summed up in the catch-phrase which one British writer, Rodney Brazier, describes as a constitutional guiding light: these are "political decisions, politically arrived at".

In other words, because the head of state must be, and must be seen to be, politically neutral, removed, aloof from politics, it is the responsibility of politicians to protect her and her representative from the need to make what is, or may be seen to be, a political decision.

Elections under MMP

What does all this mean for New Zealand this year?

I have already said that I think the basic principles and responsibilities are clear. The formation of a government is a political decision. It should be arrived at by politicians. My job in all of this is to ascertain the will of Parliament, that is, to find out where the support of the House lies and make an appointment accordingly. It is for the politicians themselves to provide the necessary information.

But that is a generality, you may complain. What will actually happen?

I do not intend tonight, to spell out in precise detail what I might do on election night or subsequently. Of course, the situation may be clear cut, in which case I will do no more than my predecessors have done in passing the parcel of executive authority.

But there is more than a reasonable chance that the election will not result in a clear message on who should form the next government. In that case, I assume that once election night results are known, the political parties will immediately begin the process of assessing each other as potential coalition partners.

I would expect that at some stage, there would be clear and public evidence that the necessary political agreement had been reached, and that a government could be formed which had the support of the new Parliament. That might be in the form of a joint public statement by the party leaders. It might be a fully-fledged coalition agreement. It might be public acknowledgment by smaller parties that they will support a larger one as a minority government.

I stress the importance of the outcome being public. First, it is essential that the people who have cast the votes, know what is happening, and understand the reason for the appointment which I will have to make. Secondly, a clear and public agreement between the parties will provide a firm basis on which I can move to appoint a new Prime Minister should that prove necessary. As in Denmark, this kind of open process enables the Governor-General to be distanced from the political negotiations, but publicly informed about their outcomes. In the past, the "transparent" outcome of the poll provided the basis on which the Governor-General acted. There was no need for advice, from the incumbent Prime Minister or any other sources. There is no reason why this situation should not continue. If the political parties act in this way, the Governor-General should continue to be able to act with confidence, in reliance on unambiguous information already in the public domain.

There may come a stage where it becomes necessary for me to talk with the party leaders. I may need to satisfy myself that I understand the arrangements that have been made. Or, if coalition negotiations become protracted, or bogged down, a little encouragement may not be out of place. My role then is simply that of a facilitator, providing such assistance as I can to bring about the formation of a new government. At this stage, it would no doubt be appropriate to recognise the relative strengths of the parties in the House and to speak to the various leaders in turn, in order of seats, for of course it is seat numbers that will determine Parliamentary support.

I mention here a matter that has considerable practical importance. A new Prime Minister cannot be appointed until the previous incumbent has resigned. In practice, a Prime Minister does resign if another party or pre-election coalition wins a clear majority. Where the outcome of the election is not clear, the incumbent Prime Minister may continue in office until Parliament meets, in the hope that he can then obtain sufficient support to form a government. If, during this waiting period, it becomes clear that there is a majority against him, he may be wise to resign.

There are a couple of points about timing that deserve mention. The first is that I see no need to rush to an immediate resolution. Breathless political commentators are not in themselves a reason for undue haste. These are weighty matters, and they are novel for New Zealand. Political parties may well need time to consider the implications of potential accommodations. The possibility that special votes may have a significant impact on party strength in the House also suggests that we should not count on a final resolution of the issues within a fortnight of the election.

But thanks to the experiences following the 1984 and 1993 elections, we now have a well understood convention on what is termed "caretaker government", which will carry us through any extended period of negotiation. It is clear that the incumbent government should continue in office as the legitimate executive authority, but that the unclear political situation may impose some constraints on what it is appropriate for the government to do.

The second point is that the Constitution Act requires that Parliament meet within a relatively short period of time - approximately 8 weeks from the date of a general election. If it appears that parties are making little progress, or if the situation is so close that it is genuinely unclear who will have the support of Parliament, a meeting of Parliament may help to focus minds. The first debate on the Parliamentary calendar is the Address in Reply debate, and this provides an opportunity to test where the confidence of the House now lies. By the time of that vote, parties must have a view on who they will support or tolerate as a government.

There is always the possibility that even a vote in the House does not resolve things. It is possible that an incumbent government might lose a vote of confidence, and that no other grouping is able to win one. In the face of that level of disagreement among the political parties, it is hard to see any other option but to hold another general election. The incumbent government would continue throughout this time in a caretaker capacity.

I trust that we will not reach this situation. It certainly does not seem to occur with any regularity in comparable countries. We may surely expect that politicians, at the end of the day, can accept the verdict of the electoral process for their parties and reach realistic compromises.

I recognise that we could be faced with new and difficult situations. But I see no need for alarmist predictions. We have relevant law; we have strong conventions and principles; and we have established processes. So long as those are understood by all involved in the system, or commenting on it, I believe that we will come through the next and future elections with relative ease. There will be more uncertainty after an election than the nation is used to, perhaps for a period of some weeks. But uncertainty alone is not a problem, so long as we have a clear process for resolving it.

Earlier I quoted Quentin-Baxter on the preventive effect of the reserve powers and the importance of all actors behaving responsibly. He concluded that two things were necessary to avoid miscalculation in this regard: first, a close and frank relationship between Ministers and the Governor-General to ensure that neither party is taken by surprise; and second, as clear an articulation as possible of the relevant rules and processes. Tonight I have tried to take us one step further along that process of articulation by spelling out a few points. To repeat:

The formation of a government is a political decision and must be arrived at by politicians.

My task as Governor-General is to ascertain where the support of the House lies. In an unclear situation, that may require me to communicate with the leaders of all of the parties represented in the new Parliament.

Once political parties have reached an adequate accommodation, and a government is able to be formed or confirmed, I expect that the parties will make that clear by appropriate public announcements of their intentions. At that point it may be necessary for me to talk again with some party leaders. I would then expect to have sufficient information to be able to appoint a new Prime Minister, if that were required.

Throughout this period of negotiation, the incumbent Prime Minister will remain in office, governing in accordance with the caretaker convention.

Fashion

I would like to conclude with an extract from one of the more colourful writers on this topic, the Canadian, Dr Eugene Forsey. In 1987, in a new introduction to a reprint of the hugely influential earlier works by himself and Dr Evatt, he commented as follows on what one might see as "fashions" in the perceptions of Governors-General:

Fifty years ago, the popular view, if not the conventional wisdom, in Canada, was that the Governor-General's reserve powers had become little more than a constitutional Cheshire Cat: nothing remained but the smile. The leading academic authority of those days, Professor Dawson, ... headed his chapter on the Governor-General with another figure from Alice in Wonderland, the Mock Turtle: "Once", said the Mock Turtle at last with a deep sigh, "I was a real Turtle."

In recent years there has been a tendency to go to the other extreme, and to attribute to (or advocate for) the Governor-General powers which no reputable constitutional authority, hitherto, would have admitted. More and more people seem to feel that if anything is amiss in the body politic, the Governor-General is (to borrow a phrase from P G Wodehouse) "the chap to kiss the place and make it well".

I can assure you that I do not see myself as a constitutional Florence Nightingale. But I hope that my comments tonight have demonstrated that there is still more to the office than the official smile, the genteel wave and the memory of the plumed helmets of yesteryear.