The Executive Council comprises all Ministers of the Crown, whether those Ministers are inside or outside Cabinet.
It is the highest formal instrument of government, and is created by the Letters Patent that also establish the Office of Governor-General.
The Executive Council is part of the executive branch of government that carries out formal acts of government.
The Governor-General presides over, but is not a member of, the Executive Council. Following the formation of a government, the Governor-General appoints the Prime Minister-designate as an Executive Councillor and then signs that person’s warrant of appointment as Prime Minister. Once appointed, the Prime Minister advises the Governor-General to appoint other Councillors. After they are appointed, a meeting of the Executive Council is convened and Councillors take the oaths or affirmations required by law.
The principal function of the Executive Council is to advise the Governor-General to make Orders in Council (to make, for example, regulations or appointments) that are required to give effect to the Government’s decisions. Apart from Acts of Parliament, Orders in Council are the main method by which the government implements decisions that need legal force. The Executive Council also meets from time to time to carry out formal acts of state.
The Clerk of the Executive Council (who is usually also the Secretary of the Cabinet) is formally appointed by the Governor-General on the advice of the Prime Minister. The Clerk is directly responsible to the Governor-General and to the Prime Minister for servicing the Executive Council and providing advice, as necessary, on constitutional matters. The Clerk of the Executive Council is Rachel Hayward.
The Executive Council generally meets every Monday in the Executive Wing of the parliamentary complex in Wellington after meetings of Cabinet. For urgent matters, or in emergencies, the Executive Council may meet at other times and venues and the Letters Patent provide for the use of any means that allows each member to participate effectively throughout the whole of the meeting. This provision allows the Executive Council to meet by teleconference, if necessary.
At the meetings, the Executive Council gives formal advice to the Governor-General to sign Orders in Council. Almost all items for consideration by the Executive Council must be authorised by Cabinet.
The quorum for an Executive Council meeting is two Executive Councillors, plus the presiding officer. When available to attend, the Governor-General presides over the Executive Council. When the Governor-General is not available, the most senior member of the Executive Council present at the meeting is the presiding officer.
Executive Council proceedings are confidential. When Executive Councillors are appointed, they swear an oath under the Oaths and Declarations Act 1957 that they “will not directly or indirectly reveal such matters as shall be debated in Council and committed to secrecy”.
The meetings also provide an opportunity for Ministers to brief the Governor-General on significant political and constitutional issues that may have arisen during the week.