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Constitutional

Crown and Anchor

Issue date: 
Saturday, 26 June 1993
Speaker: 
The Hon Dame Catherine Tizard, GCMG, GCVO, DBE, QSO

Kia ora tatou.

Good evening everyone.

Rumour has it that I am to talk tonight about the role of the Governor-General. As a rule, of course, you shouldn't always believe what you hear. But to talk about something else would put the Friends of the Turnbull Library in the position of inviting you here under false pretences, so tonight's topic is — mostly — as advertised.

Now that I'm half way through my term, I can report that there are some aspects of the Governor-General's job that are not so readily apparent from the outside: the perspective of an incumbent does differ from that of a constitutional lawyer or political scientist.

On a personal level for instance, there are some things that are tricky to come to terms with. You are still yourself — just another individual — but there is also the need to protect the mana of the office. That is a simple necessity if you are to serve the office, and serve in the office, well. How much this involves a change in style or behaviour rather depends on one's previous work and experience in public life.

Then, as Sir Denis Blundell noted: "There are certain 'musts' (for) every Governor-General...; but there is in addition a very wide area where it depends upon the Governor-General's own inclination, his outlook and his wishes, as to the extent of his activities in the affairs of the country as a whole." An Australian counterpart said that "while there was room for movement in the job, there was little latitude."

But first things first. For a few months at the beginning, there is a lot of homework. Mind you, it's not all weighty: one tends in idle moments to ponder over the proper collective noun for Governors-General.

Harking back to the old days when Governors-General wore uniforms and feathered helmets, do you have a plume of Governors-General, or a flock? Or if you were in an un-charitable mood, would you have a gaggle?

Bearing the honours system in mind, would an even better term be an investiture of Viceroys and Vicereines? What about a gravity of Governors-General? I'll be happy to hear your suggestions later.

People often have difficulty with the way they address you. On the other hand, these problems are smaller than those people have addressing a mayor, particularly a woman mayor. Of the many odd salutations I have received in the past, none ever surpassed a telex I once got that addressed me as "Her Wogship the Major of Auckland, Dam Catherine Tizard" — though someone once came close — a nervous master of ceremonies who recently introduced me as "Your Ecstasy." Nice of him, but we'd never met.

Anyway, back to the topic, which is to ponder whether there any more to the role than being "a smiling, nodding automaton." That, by the way, is a commonplace frequently quoted in constitutional commentaries.

On assuming the role, most incumbents spend their first few months on the job learning about their public responsibilities and the duties they entail. Some of it is just common sense. On the other hand, there is a certain amount of arcane detail to absorb.

Let me illustrate. Two or three times a year, I confer knighthoods and damehoods. The common sense aspect is in the use of the dubbing sword. Rule one: use the flat, not the edge. Rule two: shoulder-tap, do not slice.

Less obvious is the correct way to dub. The proper way is to tap the new knight first on his right shoulder, then on his left.

The Governor-General is always the Prior of the Order of St John as well. The Order's knights are created by tapping them three times on their left shoulders only. I got it right the third time.

Dames are not dubbed at all. The reasons usually put forward aren't terribly convincing. "It's always been that way," is the favourite, although I've always thought that all traditions were new at some stage. Alternatively, you'll hear the rationale that women didn't bear arms so there have never been any who've displayed the knightly virtues. "Well, Joan of Arc was foreign after all."

Whatever the reason, Dames aren't dubbed. Perhaps I might just rebel at my last investiture.

At any rate, during the first few months, there are a few things to learn and a lot to think about. That shouldn't be surprising — the institutions of the monarchy and the Westminster parliamentary system, both of which we have inherited, have both been evolving for hundreds of years now. What slows our constitutional learning sometimes, is that so many of the rules are unwritten. Even so, there are recurring patterns; principles that emerge if you pay heed — you have look below the surface a bit.

Unlike the Americans and French, we have not formally "designed" the duties of our Head of State. Many legal and academic commentators have thought and written about the Commonwealth version of the Head of State's role, but I believe one dimension has been infrequently addressed: there is literature on the "what" and the "how" of the job, but practically nothing on the "why" of it.

Unless you start with the "why", you are likely to overlook the real value of the role. You get distracted by its mechanics.

Yet the role of the G-G is a timely topic: over the Tasman, the neighbours are just beginning their debate about constitutional monarchy versus republic. Our Prime Minister in a recent speech said, apropos the pending visit of Prime Minister Keating, "I am certain that one issue that will come across the Tasman to New Zealand, is Australia's current debate on republicanism."

Mr Bolger went on to say, "I detect no groundswell of opinion for change in New Zealand...It is an issue which could have lain dormant for years but now, because of Australia's moves, will become a matter of discussion and debate." It should, as he goes on to suggest, "keep the political scientists occupied for a long time."

In both countries, the debate will eventually come to turn on a detailed, or a cursory, look at the functions of the position. What are they now? What could or should they include in future? How might the role continue to be developed?

Highly abstract topics, all. The danger is that, rather than think them through properly, we prefer to tune out. Sometimes though, we should review such matters, even when they are as rarefied as these.

Just because you can't measure something quantitatively, that doesn't mean it is not or cannot be real.

To believe otherwise is to deny that ideas do change the world sometimes — think back to 1989 and '90 and the events in Czechoslovakia, Germany and the Baltic republics. Vaclav Havel's writings about the civil society, or the Germans' goal of re-unification, or the drive of the Estonians, Latvians and Lithuanians to be independent — three sets of beliefs that changed the world.

I have come to believe that the chief role of a New Zealand Governor-General is more and more the one of affirming things, certain ideas and ideals.

That's a broad statement, I'll be the first to admit, but it goes with the job-title: I have always assumed that Governors-General should generalise. You are supposed to suggest, in broad terms and repeatedly, the direction in which society might evolve.

A New Zealand Governor-General does not exist to say "no" or "go" — to forbid such-and-such a policy or to insist that programme X should be run differently. Yet there are still many people who write asking me to ban this or that; to sack the government; to refuse to sign a bill into law — they insist that, for their particular purposes only, far from being level, the world of citizenship is hierarchical in the extreme — the steepest, tallest paternalistic pyramid imaginable.

Instead of being embodiments of constitutional paternalism, through a strange, historical and probably inadvertent process, New Zealand Governors-General have come to be what you could label "constitutional mums." If we can, we are supposed to assert and instil civic virtues — those qualities that sustain a civil society. The only scruple you could have about this analogy, might be created by the parallel with the sexist stereotype of the traditional roles of husband and wife within the family.

The question Governors-General always have to ask themselves is what the qualities might be, that they should assert.

There are many of course, and different incumbents might have different priorities, but some qualities and aspirations will be consistently important.

One thing I hear regularly, from people in all walks of life around the country, is the worry that New Zealand has somehow "lost its way." I've noted a lot of anxiety being expressed about whether the price we are paying for a healthier economy can be sustained. It seems to me that all this questioning has a common denominator. There is a wish, a very strong wish, for a renewed agreement on what New Zealand can and should stand for.

The problem is that while we often seem to agree fairly quickly on what we want the outcomes to be — that we provide our children with opportunity, that we care for the sick and the less well-off amongst us, that we play a constructive role in the world at large — while there's broad agreement on the goals, we are a lot more quarrelsome about how to achieve them.

Lord Holme, a Liberal member of Britain's House of Lords and an essayist, wrote a paper last year on the subject of paternalism in politics that is relevant here, as well as in the United Kingdom, though I would not go all the way with his conclusions.

In one particular essay — I'm paraphrasing — he defined political paternalism as the conferring of favours at the expense of individual responsibility. He began from the idea that, in spite of good intentions, paternalism undermines social well-being.

It confuses the social contract with a social bargain instead — support in return for being "looked after."

The personal achievement and individual worth that allows people to care about others — fully, honestly and generously — are effectively discouraged.

What comes to matter more is your identity as a member of an interest group, your "sub-tribe." In sum, you are expected to "know your place," and that is the station of a social atom, not an individual among peers; more an object and less a subject loyal to an ideal of a whole and healthy community.

Well, as I hinted, I do have some reservations about the inevitability of this outcome. (He is not as far as I know, and I am certainly not, a member of the New Zealand Business Roundtable.) But Lord Holme's thesis is that paternalism, as the mode for the conduct of politics, shapes public life much more than any ideology a government might profess.

"Where there should be a cheerful sense of achievable potential in peoples' lives, there is resentful dependence; where there should be the strong lateral links of a lively plural society, there is excessive focus on the vertical axis between sovereign state and subject ... "

In the end, he concluded that paternalism would always obstruct our finding a better mode of public life. Instead of what he termed a "culture of mutuality," you would wind up with "squalor." I'll come back to his definition of squalor shortly.

Interestingly, Lord Holme also quoted someone else on what a society's goals should be — Vaclav Havel.

Havel wrote: " however important it may be to get our economy back on its feet, it is far from being the only task facing us. It is no less important to improve the general cultural level of everyday life...And it is not true that we have to wait until we are rich to do this: we can begin at once without a [dollar] in our pockets. No-one can persuade me that it takes a better-paid nurse to behave more considerately to a patient, that only an expensive house can be pleasing, that only a wealthy merchant can be courteous to his customers and display a handsome sign outside, that only a prosperous farmer can treat his livestock well."

Havel's conclusion was that, "in many respects, improving the civility of everyday life can accelerate economic development — from the culture of supply and demand, of trading and enterprise, right down to the culture of values and life style."

He was affirming a vision of what Czechoslovakia should become. He is so eloquent on the subject perhaps, because of the style of the previous regime.

To affirm such ideals is very different from trying to direct that they are striven for. The point is to try and lead, not to push or shove.

Our Governors-General too, are proclaimers, upholders, of "the balance". The position is useful because, while the kind of behaviour that creates a civil society is extraordinarily desirable, it is absolutely not enforceable.

So more and more, heads of state or their representatives exist to affirm things — goals, ideas and ideals. Mary Robinson, the President of Ireland is becoming internationally famous because she has mastered — or should it be mistressed in Women's Suffrage year? — precisely this.

This reported today in the Guardian Weekly: "A visit to republican west Belfast by the Irish President, Mary Robinson, caused much diplomatic spluttering in the Northern Ireland Office at Westminster. Mrs Robinson's visit — "not conducive to the maintenance of good community relations", according to the Northern Ireland Office — was to the West Belfast Community Festival.

The Prime Minister, John Major, had made clear his disapproval of the visit when he met his Dublin counterpart, Albert Reynolds, earlier in the week. But the Irish President is constitutionally above politics, and Mrs Robinson, a trenchant critic of paramilitary violence, is clearly her own woman."

Think of some of the things she has done in the past year that demonstrate what Ireland should or must stand for.

Her visit to the Horn of Africa resulted in a book that reminded Ireland of its conscience, and of its role in leading international development and relief work — what Ireland should stand for in the world. More recently, she met with Queen Elizabeth, demonstrating that even when nations have warred in the past, it's important to move on.

As I said, this is a different emphasis from that which would be given by many constitutional lawyers and political scientists.

That said, these pundits are quite right in dissecting the position into its three parts — the constitutional, the ceremonial and in the community. They are also right to describe the mechanics of the post and note that the three roles overlap considerably, and re-inforce each other. Very few people understand even that.

My reservation is that analysis has often not gone any further. Is the job really based on the ceremonial only — the standard of one's performance as the Most Distinguished Bearer of the Rubber Stamp? Are Governors-General really to be judged solely by their smiles and nods? Am I to measure out my life in coffee spoons? Or is it just that the position's more constructive aspects are overlooked because we tend to be fixated on power, in its crudest, most hierarchical, most paternalistic form?

I suggest that at least one of the reasons the position really exists is to have someone proclaim — literally — the mana, the spirit and the ideals of our country.

This is a very lofty purpose, so you do have to have sound foundations. Said another way, you have to have the "what" and the "how" of the job worked out properly before you can achieve the "why."

There are two constitutional imperatives in a democratic state — the government's legitimacy and continuity.

Continuity of government is more than usually important in New Zealand, because our nation was founded when the Treaty of Waitangi was signed. The unbroken line of Governors and Governors-General back to Hobson, preserves the link with the most important agreement in our history.

Legitimacy is even more abstract, but every bit as vital. Here, the Governor-General's specific tasks include the observation of necessary formalities upon the dissolution and summoning of Parliaments; inviting political leaders to form governments; and giving formal assent to legislation.

By convention and in daily practice, Governors-General are bound to act in these matters on the advice of elected parliamentarians. In this context, advice is not the same as the suggestions you might offer a friend or your teenage son. Friends can choose to accept or to ignore what you say. Your teenager will certainly ignore it. A Governor-General does not have that option.

That said, there is a theoretical possibility that the Governor-General might have no obvious source of executive advice to follow and be forced, therefore, to act independently. But before discussing that topic, I need to take a step back.

At the risk of re-iterating what already you know, and at the risk of my getting it wrong before one of New Zealand's most authoritative constitutional experts, allow me to talk for a moment about New Zealand's constitution.

Contrary to much public opinion, New Zealand does have one. But it does not have one all-inclusive written document to which we can refer. The constitution is to be found in formal legal documents, in decisions of the courts and in the practices we describe as "conventions."

The Constitution Act 1986 is the principal formal statement.

That Act first recognises that the Queen, the Sovereign in right of New Zealand, is the Head of State of New Zealand and the Governor-General appointed by her, is her representative in New Zealand. Her representatives can, in general, exercise all the powers of the Sovereign and that conferring of power is contained in the Letters Patent, most recently revised in 1983.

Other relevant New Zealand statutes are the State Sector Act 1985, the Electoral Act 1956 and the Judicature Act 1908, which relate to the three branches of government.

The underlying principle of our democracy is summed up as, "the Queen reigns, but the Government rules — as long as it has the support of the House of Representatives."

And it is this qualification which brings us back to the question of the Governor-General's so-called "power to act."

The Government rules — as long as it has the support of the House of Representatives.

To quote the Cabinet Office Manual, "That convention of course incorporates its own limit — one that conforms with democratic principle. If the Government loses the support of the House or if the Prime Minister loses the support of the governing party, then the Ministry (the Government of the day) or the Prime Minister is likely to change: another party or combination of parties may now have the support of the House, or the governing party may have chosen a new leader. Or the Governor-General may face a more difficult situation because the position in the House or in the governing party is unclear. Situations of the last type are very rare. In the great majority of cases, the Queen, as a constitutional monarch, or the Governor-General, as her representative, acts in accordance with the advice of the Prime Minister or Ministers who have the necessary support of the House of Representatives."

The sort of constitutional stalemate that would call for these powers to be exercised is, thankfully, improbable with our unitary and unicameral form of government. What the situation might be if New Zealand votes for some system of proportional representation, I don't know. I do know though, that I am just as happy not to have to find out — should the vote this year be for MMP, by the time of the first election under the new system, I will no longer be the Governor-General.

The frequent exercise of the Governor-General's reserve powers would not only damage the office, but also, I suspect, seriously undermine the democratic basis of our system. The need is to keep such powers in reserve. The powers will always have to reside somewhere, so they have been put somewhere inaccessible — they are "in quarantine", within the post most likely to be damaged by their exercise.

Viewed this way, it's certainly a practical arrangement — power must be transferable if it is to be democratically accountable. In turn, the legitimacy that elevates power into authority, is sustained through its proper transfer. The Governor-General is the person who gains by successfully passing the parcel. Only in this way can a Governor-General embody continuity and properly witness that the government is legitimate.

You can detect some of the same logic in the fact that the warrants and the oaths of office of judges, JPs and military officers, are sworn to the Crown and Commander-in-Chief, the symbols of nationhood, rather than to the government of the day.

In essence, we have a less-codified way of achieving the checks and balances that, for instance, the framers of the US constitution were also after.

No matter how important in theory, "legitimacy" is so abstract a good that most conversations about it won't engage many people for very long. It's a measure of how lucky we are.

Legitimacy is the foundation of civil peace and the order that is maintained by the rule of law.

Its value is often recognised only when absent. Its lack allows or encourages civil unrest and even popular uprisings and violence. Truly chilling recent evidence for this comes from the Balkans.

The Governor-General also presides at ceremonials of many kinds. We've all grown up with hundreds of examples — the opening of new sessions of Parliament, ANZAC Day Parades, state funerals, conferring honours, receiving the credentials of ambassadors and High Commissioners, greeting visiting Heads of State, or participation in Waitangi Day celebrations.

Without, I hope, sounding too mystical, I suggest that at the heart of all this ceremony, this role of the office of the Governor-General is to serve as a link between citizens as individuals, while at the same time representing them collectively on public occasions.

Personalising our national identity in this way, keeps the scale of the individual built right into our perception of "the state" — the national corporate person, legal identity, nation state, however we describe it.

Our Governors-General are a "reality check." They are there to help us measure our collective pomp and circumstance, and watch that it does not dwarf, ignore or forget the individual.

Individual's ideas and principles are what countries' ideas and principles grow out of. So preserving a human scale for our institutions makes it easier to share and apply ideals in day-to-day life — in a civil society.

The third horse in the Vice-Regal troika is the community or social role. Our Governors-General are inevitably the patrons of many charitable, service, sporting and cultural organisations.

In this and other ways, Governors-General provide some social affirmation, particularly where it would be difficult or inappropriate for the government itself to become involved. This part of the job is "accentuate the positive," at its most concentrated.

Luckily for incumbents, it can also be the most enjoyable.

The Governor-General really does meet the "best people," from one end of the country to the other, serving the community in every way that you could possibly imagine. There are constant reminders that the modern definition of "best people" has changed from the old days.

I'm thinking of people who spend years driving for Meals-on-Wheels — or who volunteer their time and skills to fundraise for charity — or who staff emergency marine radio facilities — who teach and encourage and inspire young people — just look at any Honours' List if you want to find further examples. We even have a sort of life peerage of our own — membership in the Order of New Zealand.

These people go unrecognised, except by a small circle, for too much of the time; but they are, truly, the salt of our part of the Earth.

There are the young people who spend years working for Duke of Edinburgh awards; the people who foster other people's children. Again, they number among our "best people," particularly when we realise that they are models for what the rest of us could also achieve.

New Zealanders know that Governors-General are non-partisan, and therefore not seeking votes. Their endorsement — of an organisation, or of programmes for community action, or of particular causes — are often taken at face value.

Opening a conference, an exhibition, or a new building, broadcasts many signals.

One is that service to the community is recognised and valued. The Governor-General is simply the person who expresses this, publicly, on everyone's behalf.

There is also implicit approval of the organisation with whom the Governor-General is appearing. If the approval was stated aloud, what is being said would be something like: "Please don't waste too much energy worrying about this group's credentials: their intentions and reputation have already been scrutinised."

So those are some glimpses of the role of the representative of our Head of State, as it has evolved in New Zealand to date.

Many of the role's functions, I again suggest, are too often ignored. And for most of our history, it has been fine to do so. Recently though, there have signs that people are beginning to think along the lines of: "Where to from here?" We might not be able to count for much longer on ignorance being bliss.

My conclusion is that any debate about the relative virtues of constitutional monarchy versus republicanism is likely to stray into dogmatism or silliness, if the underlying functions currently performed by our Queen's representatives are overlooked.

Is the important question really, "Should New Zealand become a republic?" Or is a better one: "How do we ensure that we leave a better country, a more civil society, for our descendants than the one we inherited and have remade?" I'm assuming, please note, that there is always room for improvement.

And if our goals should include, as Lord Holme put it, the one of moving on from a culture of paternalism to "a culture of mutuality," maybe it's a more significant question than we have previously allowed. The object of the exercise is to avoid being the sort of people who only know what they had, after it has gone.

I maintain that what we have at the moment is an institution intended to help us focus on questions like, "What should the country's direction be?"

Questions like: "How do we recognise the New Zealanders who best show the way for the rest of us in creating a better country, one in which we bring up healthy kids, and one we're going to be able to hand down in good and proper order?"

And questions like: "What do we leave as our legacy, if we don't pay attention to abstractions like shared ideals, sometimes?

Lord Holme reckoned that all we would leave was squalor. Squalor, he said, "rests not only in the run-down of public amenity, but in the growing roughness of human relations, the cynicism about motives, the unscrupulousness, the cursing and the crime, and the inability to conceive of cooperative projects for the commonweal..."

The danger he saw was to fail to strike the right balance: "... the first pillar of post-paternalism is acceptance of the competitive market in the economy (and) the second must be the creation of a social ethos of mutual rights and responsibilities".

"If our social sense has become atrophied it is not because the cooperative instincts have died, rather because they have not been allowed the conditions to flourish; that there has been too much state and too little community."

The national objective that he recommended was the balancing of mutual rights with mutual responsibilities. To be sure, it's a lot simpler to state general rules than it is to achieve them: too many rights, and you deny the need for responsibility. Too many responsibilities, and you deny people their rightful freedom.

Lifting the quality of life in New Zealand — and one of the things I hear routinely are calls that we should lift the quality of life here — will only be accomplished when as many of us as possible work, at least some of the time, for the common good.

Community leaders can be encouraged. They should be recognised. Ideals we can all share should be upheld.

There will always be needs in society that have to be met. In turn, it means that no matter what constitutional changes people might propose, whether for sooner or for later, the needs will have to met somewhere in the system, somehow, by someone.

New Zealand today is locked into a debate, which will escalate in the next few months, about the fundamentals of our system of Parliamentary election. The voters will decide this quite soon now.

But changing your constitution is ever a process that piles complexity upon complexity. Look at the Maastricht process in Europe or the fate of the Charlottetown Accord in Canada. The consequence of changing the constitutional arrangements we have had throughout our history as a nation, are quite dramatic and involve much more than a change of name.

I believe that New Zealand has quietly and certainly moved, one step at a time, from colonial status to secure, self-confident nationhood and independence.

Since 1972 all New Zealand Governors-General have been New Zealanders and New Zealand resident. I would be surprised if there were any desire on any Government's part to change that.

Since the time of Sir Denis Blundell, who related in a speech he made on the role of the Governor General how his first major decision was whether to wear the traditional plumed helmet or not, each Governor General has put an individual stamp on the style of the office reflecting his own style and personality and his — now her, perception of New Zealand as a society.

Government House has progressively become less formal in style but, I hope, no less dignified or significant.

I certainly wear no feathers, I have gently discouraged the bended knee and the sweeping curtseys of yesteryear. My personal assistant declines to be described as a Lady-in-Waiting but is certainly a Woman-that's-Ready.

As New Zealand has evolved and changed so have — and will, our institutions; as and when necessary.

We can be — should be — simply are — already secure in our national identity.

I hope I have persuaded you that a Governor-General can be something more than the "nodding, smiling automaton," I mentioned earlier. I would be delighted if I have.

I will even more delighted however, to try to answer your questions or respond to your observations.

Last updated: 
Friday, 9 January 2009

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