Our Constitutional Journey

New Zealand's constitution#

It is difficult to discuss the constitutional role of the Governor-General and analyse constitutional change without first attempting to define what we mean when we refer to the "New Zealand constitution".

The term "constitution" is used to describe the way a nation is governed. As Rt Hon Sir Kenneth Keith has previously stated, a constitution "describes and establishes the major institutions of government, states their principal powers, and regulates the exercise of those powers in a broad way."[2]

Unlike most nations, New Zealand cannot point to one document and say "that is our constitution". While the exact content of the New Zealand constitution is the subject of debate, it is generally accepted that the sources of the New Zealand constitution include the prerogative powers of the Queen, various statutes with constitutional significance, and the decisions of the courts and the Treaty of Waitangi. The formal, legal aspects of the New Zealand constitution are complemented by unwritten conventions, which are based on democratic principle, and which dictate how the institutions and relationships actually work.[3]

In terms of New Zealand's actual constitutional arrangements, New Zealand is a constitutional monarchy. The Queen, as Head of State, is the source of executive authority in New Zealand. The Queen has the power to appoint and dismiss Ministers and other important office holders, summon and dissolve Parliament, assent to Bills passed by the House of Representatives, and agree to regulations and Orders submitted by Ministers through Executive Council. The Queen delegates most of her powers to her representative, the Governor-General.

While the Queen and her representative exercise these powers as a matter of law, as a matter of convention, both the Queen and the Governor-General act on the advice of the democratically elected government, in all but the most exceptional circumstances. Those exceptional circumstances involve what are commonly referred to as the "reserve powers".

In 2001, in a speech about the role of the Governor-General that I gave as part of a series of talks by public office holders run through the New Zealand Centre for Public Law, I briefly discussed the reserve powers of the Governor-General.[4]

There are four generally accepted reserve powers.[5] They are:

To appoint a Prime Minister

To dismiss a Prime Minister

To refuse to dissolve a Parliament

To force a dissolution of Parliament

These reserve powers exist to ensure that democratic order can be restored, where there are no responsible Ministers to advise the Governor-General. For example, if no government exists that has the confidence of the House, the reserve powers enable the Governor-General to find out to whom - according to democratic process - the people now wish government authority to be passed.

Of the four generally accepted reserve powers to which I have referred, the most frequently exercised reserve power, and the one I have been called upon to exercise twice during my term as Governor-General, is that of appointing a Prime Minister. In making this appointment, by convention, the Governor-General abides by the outcome of the government formation process, and appoints the individual who has the support of a majority of the House.[6]

Aside from the power to appoint a Prime Minister, the reserve powers have almost never been used in any Commonwealth country. They are a "backstop" or a "safety guard", and something Governors-General would exercise only in the absence of any real alternative. The very presence of the reserve powers, however, operates as an important check and balance on the actions of our elected representatives.

Overlaying the Governor-General's reserve powers is a complex web of conventions and intersecting responsibilities. For example, the Governor-General retains the right to require Ministers to keep him or her informed of the general conduct of government. The Governor-General may also request a briefing on any matter connected with government.[7] It is also generally accepted that the Governor-General has the "right to be consulted, the right to encourage, and the right to warn."[8] Executive Council meetings, which are generally held every Monday, give me the opportunity - and I take it on a regular basis - to ask Ministers questions about the conduct of government business.

History of MMP#

The content of the New Zealand constitution, which I have just described, changed in 1996, when MMP was introduced. The move to MMP was a significant constitutional change, and one, I believe, that laid the groundwork for future constitutional change. Given the significance of the move to MMP in New Zealand's constitutional journey, it seems appropriate for me to look back and examine the history surrounding this change.

MMP was not something that happened overnight. Its development can be traced back ten years earlier, to 1986, when the then Labour Government established an independent, non-partisan Royal Commission to conduct a wide-ranging inquiry into the New Zealand electoral system.[9]

The task of the Royal Commission was to determine whether the then first-past-the-post electoral system, which had remained largely unchanged since its establishment in England long ago, best served different purposes in a different country, community and century.[10] In its evaluation of different electoral systems, the Royal Commission was guided by the principles of democracy and representative government. It was also conscious that any change to our electoral process needed to take account of our unique history as a former British colony, with an indigenous Maori people, which has accepted and enfranchised members of various communities including the Pacific, Europe and Asia.[11]

Taking all these factors into account, the Royal Commission considered that our electoral system should reflect our experience as members of a relatively small, culturally diverse society which had developed a particular version of Westminster parliamentary government, noted, among other things, for its intimacy, responsiveness to the public, and high degree of responsibility for the well-being of its people.[12]

The result of the Royal Commission's inquiry was a recommendation for change. Of all the electoral systems it analysed, the Royal Commission felt that MMP best met New Zealand's contemporary needs. In comparison with other electoral systems, the Royal Commission concluded that MMP was fairer to supporters of significant parties and likely to provide more effective representation of Maori and other minority and special interest groups. It was also likely to provide a more effective Parliament and had advantages in terms of voter participation and legitimacy.[13] In areas where the first-past-the-post system was commonly regarded as having strengths, such as ensuring effective government and effective representation of constituents, the Royal Commission considered that MMP had comparable, although sometimes different, advantages. Overall, the Royal Commission concluded that MMP was the best voting system for New Zealand's present and future needs.[14]

The Royal Commission's work was the beginning of a 10 year process for change, which involved significant consultation and input from the public, through two referenda. The result - the move to MMP - is regarded by some as the biggest constitutional change made in New Zealand in the twentieth century.[15]

The changes to New Zealand's electoral system were the most obvious consequence of the move to MMP. But they were not the only consequence. MMP focussed our attention on the Governor-General's reserve powers, in a way that the first-past-the-post system of government had never done, because of the expectation that government transitions under MMP would be more complex.

The increased focus on the Governor-General's reserve powers prompted Sir Michael Hardie Boys, the then Governor-General, to outline some basic principles to guide Governors-General during the government formation process.[16] Those principles, in summary, make it clear that the formation of a government results from a political process, in which the politicians are the key actors. The task of the Governor-General is to ascertain where the support of the House lies, and to appoint a Prime Minister accordingly. Throughout the period of negotiation, the incumbent Prime Minister remains in office, governing in accordance with the caretaker convention.

These principles have stood the test of time. They have guided me through two general elections, most recently the 2005 election.

The Governor-General's role during a General Election#

In an election year, the Governor-General's constitutional role is very prominent. That role is broader than the Governor-General's role in the government formation process. There are a number of public expressions of the Governor-General's legal powers in an election year, which take the form of various election-related ceremonies.

The ceremony marking the dissolution of Parliament, which brings the life of Parliament to an end with a flourish of trumpets, is the first example.

The swearing-in ceremony at Government House comes next, in the splendid ballroom at Government House, before a large crowd of onlookers, friends and relatives of those being sworn in, as well as a large and interested group of media. At this ceremony, the Governor-General has the very important task of appointing the Prime Minister, members of the Executive Council and Ministers of the Crown. After the 2005 election, this ceremony was particularly significant, because for the first time in our history, members of four different political parties were seated at the table, and appointed as Ministers and Executive Councillors.

The Governor-General's legal powers are also evident at the ceremony marking the Opening of Parliament. The Commission Opening of Parliament is the first meeting of Parliament following a general election, where Parliament is declared open before the assembled members that have been elected. The Governor-General does not usually attend this ceremony, but instead authorises Royal Commissioners (usually the Chief Justice and two other Judges) to attend on his or her behalf, and read the proclamation summoning Parliament to meet.[17] Soon after the Commission Opening, the Governor-General must confirm the appointment of the Speaker-Elect, also in a ceremony at Government House.

The final public expression of the Governor-General's constitutional role in the election process is at the State Opening of Parliament, a magnificent ceremony rich in symbolism and involving all three branches of government. Participants include Judges, the Armed Forces, Kaumatua, kapa haka groups, diplomats and special officers such as the New Zealand Herald of Arms and Black Rod. The State Opening of Parliament is not the opening of Parliament, but is the day on which the Governor-General explains, in what is known as the Speech from the Throne, the reasons for the opening of Parliament or the matters which the government wishes to consider over the next Parliamentary term. At the State Opening of Parliament, the Prime Minister presents the Speech from the Throne to the Governor-General, who then delivers it.[18]

As these ceremonies demonstrate, the Governor-General exercises a number of different legal powers during an election year. All these formal actions are undertaken according to the democratic will of the people. As I have said previously, my role is to ensure that government authority is passed to those to whom the people wish it to be transferred.

The caretaker convention#

The development of constitutional conventions to support the Governor-General during the government formation process was accompanied by the evolution of another significant constitutional convention - the caretaker convention.

As I have emphasised previously, the essential principle of responsible government in New Zealand means that the Governor-General acts in accordance with the advice of the Prime Minister and Ministers, as long as they retain the confidence of the House of Representatives. After an election, however, when it is not clear where the confidence of the House lies, and no party or group of parties has a clear mandate on which to act, the incumbent government acts in accordance with the caretaker convention. The caretaker convention enables the normal day-to-day business of government to continue, while at the same time ensuring that no significant action is taken by Ministers who do not have (and may not get) a mandate to govern. The caretaker convention enables decisions taken before the start of the caretaker period to be implemented by a caretaker government. Significant decisions, new policy and actions with long-term implications should, however, be deferred if possible, or handled by way of temporary or holding arrangements. If neither deferral nor temporary arrangements are possible, the government is likely to undertake the political consultation necessary to establish whether the proposed action has the support of a majority of the House.

The principles surrounding the caretaker convention are well developed in New Zealand, and are set out in the Cabinet Manual.[19]

Most people will be familiar with the operation of the caretaker convention after an election. This is, however, not the only situation in which the caretaker convention might operate. The caretaker convention would also operate during a mid-term political crisis, if it were clear that the government had lost the confidence of the House.

It is well established that if the government loses the confidence of the House mid-term, the Prime Minister should state that the government will operate as a caretaker government until the political situation is resolved. The caretaker government would continue to advise the Governor-General on the normal business of government, while observing the caretaker convention.

Just as in the post-election situation, the Governor-General's role in this kind of situation is to ensure that a government of Ministers with a clear democratic mandate is established or re-established. In doing so, the Governor-General depends on the political parties represented in the House to clarify, within a reasonably short timeframe, whether the caretaker Prime Minister can re-establish his or her support, or whether an alternative administration can be identified from the existing Parliament. During this period, the caretaker Prime Minister's power to advise the Governor-General to dissolve Parliament and call an early election is subject to the caretaker convention - that is, it requires the support of a majority of the House.

As Sir Michael Hardie Boys said in 1998,[20] there is no reason for a political crisis of this kind to become a constitutional crisis. It is the duty of the politicians to demonstrate and communicate where the support of the House lies. It is their responsibility to ensure that the Governor-General, as the Head of State's representative, is able to remain politically neutral, and is protected from the need to make what is, or may be seen to be, a political decision. In practical terms, this means that during any period of political uncertainty, it is helpful for political leaders to state publicly their positions in respect of support for the government. Votes of confidence are an invaluable mechanism for demonstrating support, if Parliament is in session. In determining whether to support a grouping from the existing members of Parliament, or whether to seek a fresh mandate through a general election, I would expect that the politicians would take into account factors such as the stage of the electoral cycle.

Although the Governor-General retains the residual reserve power to dissolve Parliament and call an election, he or she would exercise that reserve power only if there were a complete impasse, and no other way of restoring a democratically mandated government. That, of course, would be a very undesirable outcome.

Broader constitutional changes#

I have talked about the constitutional conventions that have developed to support the Governor-General's role under MMP.

The move to MMP and the articulation of these conventions gave rise to New Zealanders engaging in broader constitutional discussion. That discussion has resulted in a considerable range of constitutional change, not all of which is directly related to the move to MMP. In 2004, a select committee was established to inquire into New Zealand's constitutional arrangements. In its report on New Zealand's constitutional arrangements, the select committee identified some of the events that represented significant developments in New Zealand's constitution since 1835.[21] To demonstrate the broader constitutional discussion that has taken place over the last 10 years, I would like to mention three areas where there has been an evolution in our constitutional arrangements: the changes to the relationship between the executive and the legislature, the establishment of the Supreme Court, and the role of the Treaty of Waitangi in New Zealand society.

Changes to the relationship between the legislature and the executive

The change to the relationship between the legislature and the executive is one of the more prominent constitutional changes that flowed from the introduction of MMP. Since the introduction of MMP, and the emergence of minority governments, a clearer distinction has emerged between the legislature and the executive. As the Deputy Prime Minister recently stated, "MMP has redistributed the power that was formally concentrated, with the result that Parliament is a much more powerful and autonomous institution. Correspondingly, the task of the government is a much less certain one."[22] This can be attributed to the legislature's enhanced role in the legislative process and its ability to scrutinise the role of the government through the select committee process. This change is no surprise, given that one of the main objectives of MMP was to provide for a more effective Parliament.[23]

Establishment of the Supreme Court

Another significant step in New Zealand's constitutional journey that has taken place recently is the discontinuation of appeals to the Judicial Committee of the Privy Council and the establishment of the Supreme Court as New Zealand's final court of appeal.

The Supreme Court was established in 2003 with the intention of making the final level of appeal more accessible and to promote a judicial system representative of New Zealand as an independent nation. The establishment of a New Zealand-based final court of appeal has been seen by many as further evidence of our maturity as a nation.

This constitutional change was also noteworthy because it generated political and legal debate.[24] In terms of our constitutional journey, there was much discussion about which fork in the road we should take, and how that choice should be made. This debate demonstrated an increasing interest in constitutional issues by New Zealanders.

Role of the Treaty of Waitangi#

In reflecting on recent constitutional changes in New Zealand, it is important to mention the Treaty of Waitangi.

Since the 1970s, there has been a persistent call from Maoridom for constitutional change to give greater effect to the Treaty of Waitangi. The most recent call for change by Maori was made in submissions to the Constitutional Arrangements Committee, a select committee established in 2004 to inquire into New Zealand's existing constitutional arrangements.

The role of the Treaty of Waitangi in our constitutional arrangements is one of the most important questions currently facing New Zealand. It is not an issue that we can address with hasty reforms. It is something that all New Zealanders need time to reflect on, and discuss.[25]

This brings me back to my analogy of the journey. As any good tramper knows, it is no good if a few eager beavers take off ahead, while others get left behind. The same can be said of significant constitutional change. If we are to make changes to our constitution to reflect the role of the Treaty of Waitangi in New Zealand society, it is important that all New Zealanders walk together at more or less the same pace.

The future#

The past 10 years have been a remarkable phase of our constitutional journey. We have come a long way and show increasing sureness of step. We are now at the point where we are considering how future constitutional change, if it is to take place, might be tackled, as is demonstrated by the select committee inquiry into New Zealand's constitutional arrangements. In its report, the Constitutional Arrangements Committee made a number of recommendations, which focused both on the processes that should underpin future constitutional change and on fostering a greater understanding of our constitutional arrangements in the long-term.[26]

Fostering a better understanding of our constitutional arrangements is something I believe in strongly, and I have been doing my best to play a part in that. When I became Governor-General, I set out to incorporate as many school visits as possible into my schedule, so that I had an opportunity to talk to students about my functions and powers, and raise the profile of constitutional issues. There have also been less formal occasions where I have an opportunity to talk to students about my role. On Monday afternoons, for example, as I make my way to Executive Council, I often come across groups of children visiting Parliament. I usually stop and chat to them about what I do. They are always interested in what I have to say, although it is clear the braid and uniforms of my ADC particularly impress them.

As I travelled around New Zealand and visited different schools, I began to realise how important it was for New Zealand students - our future decision makers and leaders - to have a grasp of the rules, conventions and traditions that underpin our democracy. Only with this knowledge will future generations of New Zealanders be able to make informed choices about the important constitutional questions confronting New Zealand. And those questions do have real significance for New Zealand. The Constitutional Arrangements Committee recently identified the constitutional questions facing New Zealand as being questions that go to the sources of political legitimacy, including the importance of the Treaty of Waitangi and the basic relationship between the different branches of government, and questions that relate to the values that are or might be considered basic to the identity of New Zealand society.[27]

Faced with the challenge of improving understanding about the role of the Governor-General, Government House developed a comprehensive online education resource for all schools in New Zealand, to support the New Zealand social studies curriculum. The resource is designed to help younger generations of New Zealanders understand New Zealand's constitutional arrangements, while also challenging them to think about where New Zealand might head in the future. While I believe that the work I have done has made a real contribution to increasing the understanding of my role and its place in New Zealand's constitution, I am conscious that facilitating constitutional discussion is an ongoing challenge.

So where do I see us in the future? Like any journey, our constitutional journey will not always be easy. Parts of it will be challenging. Some people may get blisters or become tired. But there will also be exhilarating moments, where we come across a spectacular view, and can reflect upon our achievements. We must constantly strive to ensure that everyone is included and no one gets left behind. And like life, the destination is not the important part. It is the paths we take and how we tackle the journey that matters. I believe we have a lot to be proud of, and a lot to which to look forward.

[1] Speech by Sir Michael Hardie-Boys for the Institute of International Affairs, entitled "The Role of the Governor-General under MMP", 24 May 1996. Also see speech by Sir Michael Hardie-Boys for the 1997 Harkness Henry Lecture, entitled "Continuity and Change", 31 July 1997

[2] Rt Hon Sir Kenneth Keith, "On the constitution of New Zealand: an introduction to the foundations of the current form of government", 2001 Cabinet Manual, page 1.

[3] Ibid, page 2.

[4] Speech by Dame Silvia Cartwright for the New Zealand Centre of Public Law at Victoria University of Wellington, entitled "The Role of the Governor-General", 2 October 2001.

[5] There is some disagreement as to whether a fifth reserve power exists, that power being the power to withhold consent to legislation. Fortunately this issue remains in the realm of theoretical constitutional conjecture.

[6] 2001 Cabinet Manual, paragraph 4.39

[7] Letters Patent Constituting the Office of Governor-General of New Zealand, clause XVI.

[8] W. Bagehot, The English Constitution (2^nd edition, Kegan Paul, 1904), page 75.

[9] Report of the Royal Commission on the Electoral System: Towards a Better Democracy, December 1986, page 1.

[10] Ibid, page 6.

[12] Ibid, page 7.

[13] Ibid, page 7.

[14] Ibid, page 63.

[15] Ibid, page 64.

[16] Paper by Rt Hon Sir Geoffrey Palmer to the Third Annual NZCPL Conference on the Primary Functions of Government: the Executive, entitled "The Cabinet, the Prime Minister and the Constitution", 25 November 2005, page 16.

[17] Speech by Sir Michael Hardie-Boys for the Institute of International Affairs, entitled "The Role of the Governor-General under MMP", 24 May 1996. Also see speech by Sir Michael Hardie-Boys for the 1997 Harkness Henry Lecture, entitled "Continuity and Change", 31 July 1997 and speech by Sir Michael Hardie-Boys for the Institute of Policy Studies Seminar, Wellington, entitled "Governing under MMP: the Constitutional and Policy Challenges", 3 December 1998.

[18] McGee, David, "Parliamentary Practice in New Zealand" 3^rd edition, page 134.

[19] Ibid, pp 141-142.

[20] Cabinet Manual 2001, Chapter 4, pages 52-61.

[21] Speech by Sir Michael Hardie-Boys for the Institute of Policy Studies Seminar, Wellington, entitled "Governing under MMP: the Constitutional and Policy Challenges", 3 December 1998.

[22] Report of the Constitutional Arrangements Committee, August 2005, Appendix B.

[23] Address by Hon Dr Michael Cullen to the Third Annual NZCPL Conference on the Primary Functions of Government: the Executive, entitled "The Primary Functions of Government: Trends and Developments in Constitutional Conventions", 24 November 2005.

[24] Report of the Royal Commission on the Electoral System: Towards a Better Democracy, December 1986, page 12.

[25] Report of the Constitutional Arrangements Committee, August 2005, page 79.

[26] Ibid, page 17.

[27] Ibid.

[28] Ibid, page 16.