The Governor-General's role

First, may I thank you, Professor Joseph, for the opportunity you have provided for me to come and speak to your 2010 Public Law Class and for its inclusion in the series where people holding a number of kinds of public office in New Zealand have come, now for many years, to present a perspective, from a legal point of view, for your class.

In fashioning what I have to say, ladies and gentlemen, I propose to use the format undertaken by an orator on the paepae at a New Zealand marae, in that I will first of all attempt a whakapapa in relation to my membership of the legal community.  Then I shall contribute a whaikorero or description of the experiences and issues that I have encountered as Governor-General and I shall then end with a wero or challenge regarding each of you and your future in the law.

First, as to whakapapa, which establishes a place to stand, I register myself as a member of the legal community who some 45 years ago attended years of lectures at Law School on my way towards a Bachelor of Laws Degree at the University of Auckland.  My legal education was, however, somewhat different from that which many, if not most of you are having, in that I was the last of that echelon of New Zealand lawyers who worked in law offices by day and who came to the Law School for their lectures, generally in the early morning or other end of the day.  The emphasis on full-time study, and multiple choices of subjects within the degree, was to come later at all of the New Zealand universities. 

Clearly, a law degree obtained in the early part of the 21st Century in New Zealand is producing students with a much better knowledge of the law than was possible all those years ago.  However, I have always felt at later points in my own career, that that combination of formal study, alongside working with lawyers and other law clerks, provided, for me, a grounding in many legal skills - searching titles, and records, basic conveyancing, estate administration, debt collection and other items that have always proven useful.  By the time I approached the end of Law School study I had determined to become a courtroom lawyer and managed to gain a place in the Crown Solicitor’s office in Auckland. 

I spent the first five or six years of my post-admission career prosecuting cases in the then Magistrates’ and Supreme Court and, very occasionally towards the end of that time, appeared generally as Junior Counsel in the Supreme Court and Court of Appeal.  I then jumped ship, so to speak, and entered a private law firm in partnership and spent another five or six years building up a career as a lawyer who specialised in Criminal Law, Revenue Law, that is Tax and Customs, as well as elements of Judicial Review.  In 1982, after the Royal Commission on the Courts created a new jurisdiction for the former Magistrates’ Court, I became a District Court Judge and, shortly thereafter, obtained a Specialist Warrant for conducting Criminal Jury Trials.  In the dozen years I spent as a working Judge, I specialised in General Jurisdiction and Criminal Jury Trial work.  I also developed an interest in continuing professional education and began the judicial orientation programmes that are today delivered by the Institute of Judicial Studies. 

In 1995, I was appointed by Parliament to become one of New Zealand’s Ombudsmen and spent two five-year terms, for a decade that is, as someone connecting with the public registering complaints about unfairness rought by either central government or local government agencies and because the Ombudsmen Office in New Zealand has jurisdiction for freedom of information being involved with many cases to do with the provision of official information, and arguments about that.  By the end of the Ombudsman decade I had determined upon undertaking a series of part-time roles and was the country’s first Registrar of Pecuniary Interests for Members of Parliament (a part-time role) and also Chairman of the Confidential Forum for Former In-patients of Psychiatric Hospitals.  I also maintained a connection with the Commonwealth Secretariat in the delivery of a training programme for newly appointed Commonwealth Ombudsmen.  There then came an invitation to accept appointment as New Zealand’s 19th Governor-General which, in due time, I was pleased to take up.  I have now spent some four years in that Office and will conclude the term in August 2011.

Over 20 years it has become a practice for New Zealand Governors-General to express some account of their perception of the role from the inside and this has often been followed by a more reflective contribution after cessation of Office.  At the point that I deliver this contribution to your class, one of almost every expected occurrence in the life of a Governor-General has occurred, with the notable exception of a constitutional crisis, with which, it is hoped, that no New Zealand Governor-General will ever have to deal.  I am someone who has been professionally, as well as recreationally, interested in my job and how it works and, for that reason, it has been a matter of delight to accept Professor Joseph’s invitation to make this contribution and to offer some views about how things have worked.

What now follows can be called my whaikorero, or main part, and I commence this with a quotation of Rt Hon Sir Michael Hardie Boys, 17th Governor-General of New Zealand and former Judge of the High Court and Court of Appeal, who served in the second half of the 1990s.  In delivering a Neil Williamson Lecture in Christchurch in 2003, Sir Michael said that:-

“The fundamental thing …is that the Governor-General has the responsibility to ensure the continuity and legitimacy of government … and to do that effectively it is crucial that he or she be, and be seen to be, publicly neutral and impartial.”

The second quotation comes from the work of an American author, Robert Heinlein who wrote in a book called The Notebooks of Lazarus Long as follows:-

“A human being should be able to change a diaper, plan an invasion, butcher a hog, steer a ship, design a building, write a sonnet, balance accounts, build a wall, set a bone, comfort the dying, take orders, give orders, cooperate, act alone, solve equations, analyze a new problem, pitch manure, program a computer, cook a tasty meal, fight efficiently, die gallantly.  Specialization, is for insects.” 

These two quotations provide, I think, two ideas.  One is the centrality to government of the role of the Governor-General and the other is a sense of the range of things that are transacted through the Office of Governor-General, or that come to the attention of a working Governor-General in the course of each week, certainly each month and, undoubtedly, each year.  To these things there is to be added the value of continuing to ask questions. 

Discussions of the role of Governor-General are traditionally dissected into three layers – Constitutional, Ceremonial and Community. I propose to deal with each in turn and to provide first, a description, and then some issues as they have occurred, and which have accumulated in my mind as I come to contribute to the discourse.

Constitutional

Constitutionally, the task of a New Zealand Governor-General is set out in law in Letters Patent 1983 and in the Constitution Act 1986.  Those two pieces of legislation, which are, respectively, a prerogative instrument and legislation by the House of Representatives, set out the Governor-General’s core legal powers; and, in the quarter century that has followed 1983 and 1986, they have proved to be durable.

Key sections in the Constitution Act affirm that the Sovereign is the Head of State of New Zealand and that every power of the Sovereign is exercisable through the Governor-General when not done by the Sovereign in person.  There are eighteen clauses in the Letters Patent SR 1983/225.  They describe the territorial extent of New Zealand, the Governor-General’s powers and authorities exercisable personally on the advice of a Minister or as a result of resolutions of the Executive Council, (which comprises all Ministers of the Crown, and is presided over by the Governor-General) and to do such things as to appoint Ministers, certain officials and diplomats, and to exercise the Prerogative of Mercy.  Each of these powers is exercised on the advice of the relevant responsible Minister or Ministers.

A third piece of legislation, the Civil List Act 1979, sets out the salary and allowances payable to a Governor-General and the annuities after completing office.  This Act also covers the remuneration of Ministers of the Crown and of Members of Parliament.  At the time of writing, the Civil List régime has been the subject of a review by the Law Commission and there is a proposal for the remuneration and funding arrangements for the Governor-General to be placed into stand-alone legislation.  The resulting Governor-General Bill is currently before the House.

Both the Constitution Act and the Letters Patent state the rather substantial legal powers of the Governor-General (which powers include the appointment of Ministers, and the summoning and dissolving of Parliament) in absolute terms, without reference to the fact that, by convention, the powers are exercisable only on the advice of democratically elected Ministers. 

The Constitution Act was passed by a democratically elected Parliament, and one commentator has suggested that it might also be appropriate for the Letters Patent to be enshrined in statute.  It is worth noting, however, that the Letters Patent are in fact firmly rooted in New Zealand democratic tradition.  They are approved by the Executive Government in New Zealand, and signed by the Queen on the advice of the New Zealand Prime Minister.

In the five-year term of each New Zealand Governor-General, at least one general election must be called.  Such has occurred in my own term, in November 2008.  As a result of the decision made by the voters to effect change, the former Prime Minister, the Rt Hon Helen Clark, came to Government House to present her resignation and those of her Ministers.  I thereafter received the leader of the National Party, the Hon John Key, who asserted in the time honoured form that he commanded a majority in the House of Representatives, resulting in him being able to be appointed Prime Minister and being sworn in - and the new Ministers likewise, shortly after that.  This change of Ministry occurred, I am very pleased to say, in a remarkably short time and with conspicuously good manners on both sides, outgoing and incoming.

Appointing Ministers can be called ‘core business’ because the Governor-General’s task is to act upon the advice of Ministers and the business of government cannot proceed until their appointment.  In other words, the Governor-General does not do anything off his or her own bat, and that applies in almost every circumstance.  At a credentials ceremony, for example, the new Ambassador reads a letter from his or her Head of State in the expectation of being formally received.  There is, however, always a Minister of the Crown in attendance who says something to the effect that, ‘The New Zealand Government recommends that you accept the Letter of Credence from the Ambassador from [the appropriate country].’’  Only then, can there be acceptance, and only then may the person commence work in an official capacity as Ambassador (or High Commissioner, if from a Commonwealth Country).  The Ministers depend in their turn on the Prime Minister maintaining a majority in the House.

Much of this generic kind of thing - of appointment of people to jobs, or of making proclamations or orders - is done ‘on the papers’ and there is a steady flow of documents every day of things coming from either the Executive Council, or from individual Ministers and, of course, from Parliament.  Each will contain advice from the appropriate Minister.  It has become a practice that supporting material accompanying the advice will refer to the legal background and the basis for the decision in question.  Documents for the appointment of people to official positions will generally include the intended candidate’s curriculum vitae, and reasons in support of the appointment or making the order will be provided. 

Discussion of the Governor-General powers often makes reference to the so-called “reserve powers,” which have been defined as the Governor-General exercising independent judgement to appoint or dismiss a Prime Minister, refusing a request for a dissolution or forcing a dissolution, or refusing the royal assent to a Bill.  Professor Philip Joseph, of the University of Canterbury Law School, has called the term “reserve powers” a “misnomer”.  As he notes in Constitutional and Administrative Law in New Zealand:

"While these actions are taken only in extremity, they entail exercise of the Governor-General’s ordinary legal powers … [These] situations are distinguished, not by any exceptional power, but by the rejection or lack of ministerial advice.  The question is whether, owing to exceptional circumstances, the usual convention enjoining ministerial advice does or does not apply.  Constitutional convention cannot extinguish or attenuate legal powers, nor can it amplify or create legal powers."

Apart from the appointment of a Prime Minister, which inherently involves the use of this power, no New Zealand Governor-General has had to intervene in the day-to-day politics of the moment.  While there have been occasional political crises, none have developed so far as to result in a constitutional crisis that might necessitate the Governor-General’s involvement.  And that is as it should be.  New Zealand is a democracy.  New Zealanders elect their representatives to make laws for the good governance of the nation and, I might add, to sort out the occasional crises that are the stuff of a life in politics.  It is neither the role nor the right of an appointed Governor-General to usurp the decision of a democratically elected Government or to intervene in the occasional political ups and downs that might occur along the way.

One significant event to occur during my term was the publication of the 2008 edition of the Cabinet Manual, an authoritative guide to the workings of executive government, and one that articulates many of the constitutional conventions that govern its processes.  The 2008 edition updated practice in a number of areas such as the caretaker convention which is now well established in New Zealand in our MMP environment

This clear articulation of the relevant principles, as applied in New Zealand’s unique constitutional environment, will be of great assistance if the constitutional players are ever required to negotiate the treacherous waters of a mid-term loss of confidence in the government.  In other jurisdictions, such circumstances have created controversy and sometimes constitutional crises.  In New Zealand, the existence of clear and publicly available guidance for those involved is tremendously helpful to ensure safe passage through the reefs.

It is perhaps not surprising to learn, therefore, that the former government of the United Kingdom, facing its first unclear election outcome, recently referred to the New Zealand Cabinet Manual as a useful model on which to draw, in expressing its own set of principles and guidelines.

The writer has also been involved in other developments relating to the Governor-General’s constitutional functions.  For example, at my encouragement, a survey was undertaken of all of the documents coming for consideration and signature by the Governor-General, some needing simply a signature, others calling for some kind of certificate, and others again, for affixing of the Seal of New Zealand.  Many important documents, such as warrants for Judges and appointments of Ambassadors, call for the signature of the Governor-General, affixation of the Seal and the countersignature of the relevant Minister or Attorney-General.  However, the term used in many documents showed the words ‘As witness the hand of the Governor-General’ with a space for the relevant Minister to countersign the document. 

To the uninitiated, this phrase might have suggested that the Minister had been present to witness the Governor-General’s signature. 

The concern of the writer, however, was directed to those not familiar with the rather arcane intricacies of the relevant jurisprudence.  To at least some of those people the wording on many documents might suggest that the Minister had been present and had witnessed the Governor-General’s signature, when that was in fact not the case.  In order to avoid this misleading impression, following consultation, a differing wording has been adopted as follows: ‘Given under the hand of the Governor-General and issued this [blank] day of [blank]’.  This phrase removes any suggestion of witnessing, and the words are consistent with saying in effect something like, ‘Following signature by the Governor-General.' 

One cannot help but refer to some of the matters coming before the Governor-General under odd circumstances and out of areas of the law with which the writer was not ever familiar.  I bring to mind, for example, an order a little time ago bringing quite a considerable tract of land in the middle of Southland under the Land Transfer Act 1952, even though it had been occupied and farmed since the early 1860s.  Or the fact that the term ‘Royal’ used by a company or an organisation within New Zealand requires permission of the Governor-General, and advice in regard to that is furnished by the appropriate Minister.  Not so long ago, permission for a firm called The Nippon Royal Company Limited to trade as a car dealer was forthcoming on the advice of the Minister of Consumer Affairs.  A third item relates to the Ross Dependency being part of New Zealand along with Niue and Tokelau and the Cook Islands.  It is pursuant to legislation passed in the United Kingdom at Westminster in 1887 and an Executive Council decision in London in 1923 providing the Governor-General of New Zealand with the necessary authority, that from time to time a document comes up for a person to be appointed as a Justice of the Peace with jurisdiction over the Ross Dependency. 

Some of this may seem, in some ways, to be rather straightforward and mundane.  But there is an opportunity for anyone who is interested in the processes, to suggest positive change and I can look back upon a number of steps of that kind that have been taken in my time.  Two examples include the form of documents supporting material coming before the Executive Council each Monday after Cabinet, which, where appropriate, enable the relevant Minister to certify that necessary preparatory steps, such as consultation with parties who will be affected by the new law, have been completed.  Another example has been development of forms which have been devised during my term (and with my encouragement), in plain language, for people applying for the Royal Prerogative of Mercy to be exercised.

This account has started the Constitutional description with that relating to Executive Council and Ministers of the Crown.  But it [the account] could equally have started with Parliament.  This is so because whilst the Governor-General plays no role in the Chamber of Parliament or in the debate processes within it, there are fundamental legal roles incumbent on every Governor-General with regard to the House of Representatives and its life.  The central connection is provided by Section 14 of the Constitution Act 1986 saying that “There shall be a Parliament of New Zealand which shall consist of the Sovereign in right of New Zealand and the House of Representatives.”  This begins with the Governor-General dissolving Parliament at the end of the Parliamentary term and directing the Electoral Authorities to conduct a General Election.  When the votes have been counted, the parties negotiate to form a government, and the new Parliament convenes.  The first step in the opening of the Parliament is the Commission Opening.  The Governor-General sends three Royal Commissioners (who are usually the Chief Justice or another senior judge and two other judges) to attend Parliament, to which the newly elected members have been summoned.  The Commissioners are authorised by the Governor-General to administer oaths to the newly elected members of Parliament.  The members are sworn in by the Clerk of the House of Representatives, and they then elect the person who is to be the Speaker.  The Governor-General confirms the Speaker in office and once this has been effected, there can be a formal Opening of Parliament where the Speech from the Throne is read. 

This speech sets out what the Government intends to undertake during its term and although the document has been prepared by the Prime Minister, it is read out by the Governor-General.  The business of Parliament can then proceed under the stewardship of the Speaker.  Each piece of legislation, once passed by a majority, is certified or authenticated by the Clerk of the House as having been passed by a majority.  There is then a certificate from the Attorney-General certifying that, in his or her opinion, the relevant Bill contains nothing which requires the Governor-General’s assent to be withheld, and finally, there is a formal request, generally signed by the Prime Minister, for the Governor-General to provide Royal Assent to the law that has been passed.  It would be essentially unthinkable for a Governor-General to refuse to provide assent to legislation that has been passed by a democratically elected Parliament and, in reality, in the United Kingdom no Monarch has refused to give assent to a government bill since 1707, and in New Zealand not since the New Zealand Parliament assumed full law making authority.

Ceremonial

I turn then to the ceremonial aspects of the job, which occur almost every month and in almost every week during those months.  Every year there is a Waitangi Day, an ANZAC Day, a Commonwealth Day and an Armistice Day - days on which the nation reflects on some of the most important events in our history, and in which the Governor-General always plays a ceremonial part.  There are monthly Credentials ceremonies for new diplomats beginning their role.  Every so often there has been a change in the Cabinet with a Minister resigning or changing portfolio and another being appointed.  Of course, following the general election there was the general swearing-in of an entire ministry.  Investitures occur twice each year, with some 200 New Zealanders at each time coming forward to receive the honours that, on the advice of the Prime Minister, the Queen has awarded them. 

Under the ceremonial heading also comes an item of increasing frequency in modern times relating to the Governor-General that of formally receiving and entertaining visiting Heads of State and Prime Ministers which at times have an almost monthly frequency.  That has been matched by increasing use being made of the Governor-General by governments of the day to undertake visits to foreign countries, representing and adding width to the relationship with other nations.  In the writer’s case, this has included visits to Pacific countries such as Samoa, Papua New Guinea and the Solomon Islands as well as to Singapore, Timor-Leste, India, Canada, and Turkey further afield.  In this term, in each of these ceremonial events, whether locally or off-shore, the opportunity has been taken up extensively for the writer’s spouse to play a supportive role.

There are occasionally issues arising with ceremony that call for reconsideration and change.  I bring to notice things like the following.  The first is the New Zealand Governor-General’s flag which at the start of the present term in 2006 had been operational for 75 years.  The 1931 flag comprised the depiction of a lion on top of the Crown.  Work was underway, which the writer encouraged, towards the establishment of a new flag in 2008, with the New Zealand crest topped by the St Edward’s Crown as worn by Her Majesty Queen Elizabeth II.  The second is the formality attaching to the appointment of Consuls in a document called an exequatur which presently calls for affixation of the Seal of New Zealand and for the signatures of Governor-General and Minister, and which is being reviewed with a view to a simpler process and document; one which achieves the result and without need for the extra formality of having the seal.  Another issue bearing recall was to do with the swearing-in ceremony.  It was proposed that the incoming Governor-General might receive a Māori welcome, then undertake an inspection of the Military Guard before proceeding to the dais for swearing-in.  When an issue was raised of whether the yet-to-be-sworn-in (civilian) Governor-General should then inspect the Guard, it was decided that the Māori welcome might be followed by the swearing-in, with the Oaths of Office being administered by the Chief Justice.  The Governor-General might then inspect the Guard, after having been sworn-in and as Commander-in-Chief, as envisaged by Part I of the Defence Act 1990 – accompanied by the Chief of the Defence Force when so doing.

Community

The third layer is the association with the wider New Zealand community.  This area takes up the most time by a considerable margin –with several hundred encounters in each year.  This is so, whether it be related to business, to youth, New Zealand’s ethnic communities, organisations which are given patronage, the education or health sectors, or to central and local government.  There are regular calls for every Governor-General and an opportunity for his or her spouse to make themselves available to attend significant occasions that are being undertaken by such groups or organisations.  Beyond participation by means of accompaniment and support, a number of opportunities have been taken by the writer’s spouse to extend the reach of the Governor-General role, to make direct connections with and to encourage, events affecting children, the environment and women.

Sometimes this may take the form of sitting on committees which decide on allocation of scholarships or distribution of funds.  The upside is that this provides a very happy connection with positive things that are occurring every week and every month in some part of the New Zealand population.  It is necessary to prepare carefully so as to be able to participate fully in each event and, as is often required, to make a thoughtful and well informed speech.  It is also necessary to ensure that one stands between being regarded as a demand-driven sponge or as someone who is endeavouring to manage the outcomes.  It is here that having a strategic plan seems to be vital (as is examining it regularly) to make sure that there is a fair spread of activity, be it geographical or sectoral.  A useful practice has been to develop one or more of the following themes in speeches on community occasions – the increasing diversity of the New Zealand, the benefits that flow from people’s engagement with their community and the desirability of acquiring civics knowledge.

Community contact generates the necessity for different sorts of communications, such as messages to organisations when it is not possible to attend their function; and cards upon specific occurrences, such as, to people achieving 100 years of age or having a significant wedding anniversary, or at Christmas time.  Communication also occurs by means of brochures and by having an active website.  A great deal of work has been done in the last three years in this regard, for which satisfaction has been expressed in a number of quarters.

The issues that arise out of the community segment include just having sufficient time to undertake what is asked, and also the continuing contestability of dates, and often times within each date.  Even in this area, where people are doing things well, problems can be generated that need attention, and that can be a challenge.  In some cases the trustee role envisaged for the Governor-General raised the prospect of possible conflicts of interest which, with the advice of the Solicitor-General, meant that the writer had regretfully to decline appointment.  There are community things which arise that involve continuing positive and interesting challenge: such as, speaking in Maori (even if just in greetings), and speaking to groups of children; neither of which the writer had personally undertaken, certainly in public, for some considerable time before appointment, nearly four years ago.

Conclusion

This discursive survey has, I hope, painted something of a picture of what goes on in a day-to-day fashion and gives the reader some idea that, for someone of a legal background, there arises continuing fascination with what is there to be done.  The renowned 19th Century constitutional writer, Walter Bagehot, had it that ‘the Sovereign [and I interpolate Sovereign’s representative] has, under a constitutional monarchy such as ours, three rights – the right to be consulted, the right to encourage, the right to warn.’  Each of these rights is provided in the writer’s experience by governments of the day - albeit in a suitably low key and informal New Zealand fashion.  The Governor-General space is one where imagination and general knowledge is tested and stretched – but in a congenial way - all the time.  In all aspects of the tasks mentioned, there needs to be recorded the hard work and sound advice that is provided by three layers of the civil service – the Official Secretary and Government House staff; the Clerk of the Executive Council and other staff in the Cabinet Office; and, finally, the Solicitor-General and resources of the Crown Law Office and the Ministry of Justice.

Finally, a crucial pointer as to what a Governor-General kind of role involves was provided by Charles II in the 1660s when he said, 'my actions are my own: my words are my Ministers.'  And so it is for the present manifestation of what Her Majesty is pleased to call her ‘trusty and well-beloved representative’.

I said that I would end with a wero or challenge and it is this.  Our country has achieved a remarkable state of being with a well-educated, rights-conscious, multicultural community.  It has a reputation for a principled contribution to international citizenship.  Our country was described by former United Nations Secretary-General, Kofi Annan, as “a country that works.”  However, as everyone will also know, there is a gap of disparity in our community and a number of “have nots”.  It needs people of a legal background, to ensure for our community in the future, a continuing quality of life and an equable quality of life. 

I wish you well in your studies and in your forthcoming careers and thank you for your courteous attention.