Speech
Justices of the Peace Auckland Association Annual Dinner
May I begin by greeting everyone in the languages of the realm of New Zealand, in English, Maori, Cook Island Maori, Niuean, Tokelauan and New Zealand Sign Language. Greetings, Kia Ora, Kia Orana, Fakalofa Lahi Atu, Taloha Ni and as it is the evening (Sign)
May I specifically greet you: Wallis Walker and Les Smith, President and Vice-President respectively of the Auckland Justices of the Peace Association; Your Honours, Judges Jan Doogue, Phil Gittos, Semi Epati, Phil Recordon and David Wilson; Distinguished Guests otherwise; Ladies and Gentlemen.
I would like to take this opportunity to canvass some issues about the interplay between the principles of good governance, good administration and civics. I want to do this in the context of the important constitutional event that occurred today with the appointment of a new government. I have had the opportunity to think about some of these issues for a while, and given that this invitation was agreed to some time ago and the date of the election became known, the timing is fortuitous.
I could myself think of no better forum in which to make such comments, than at a gathering of New Zealand Justices of the Peace. From my earliest days in the law, I have been acquainted with the work of Justices of the Peace, in both ministerial and judicial roles.
My understanding and respect for your work has grown as my own career has progressed, from lawyer to judge to ombudsman and it is maintained, you may be assured, as Governor-General. With ancient origins, the work of Justices of the Peace is an important cornerstone of New Zealand's legal system and you make a significant contribution to its operation. So it was a pleasure, on being appointed Governor-General in August 2006 to accept the offer to be Patron of the Royal Federation of New Zealand Justices' Associations.
Today I had the opportunity to appoint the Hon John Key as New Zealand's 25th Prime Minister since the first New Zealander to formally hold that title, William Hall-Jones, briefly served in 1906. Also appointed were the 28 office holders in the new administration. I wish Mr Key well and look forward to working with him in his new role.
The appointment of a new government is always a significant event. As Governor-General it is a matter of central duty to carry out this important constitutional task.
The election and its outcome also demonstrated a further expression of our country's democracy. In New Zealand, because transfers of power are orderly and peaceful, with much good grace by all, we often forget that in so many other places, changes of government occur with much more difficulty and sometimes at the end of the barrel of a gun. This is a point to which I will return.
The change of government is the culmination of a process that began about two months ago when the then Prime Minister, Rt Hon Helen Clark, advised me to dissolve Parliament and to instruct the Chief Electoral Officer to conduct the regular triennial General Election.
The appointment of a Prime Minister involves the exercise of what are called "the reserve powers," which have been defined as the Governor-General exercising independent judgment to appoint or dismiss a Prime Minister, to refuse a request for dissolution or to force dissolution, or to refuse assent to legislation.
Leading New Zealand Constitutional Law academic Professor Philip Joseph, of the University of Canterbury, has called the term "reserve powers" a "misnomer." As he notes in his book, Constitutional and Administrative Law in New Zealand:
"While these powers are exercised only in extremity, they are all aspects of the Governor-General's ordinary legal powers .... [These] situations are distinguished, not by an additional or exceptional power, but by the rejection or lack of ministerial advice."
Thankfully, apart from the appointment of a Prime Minister, which inherently involves the use of this power, no New Zealand Governor-General has had to exercise any of the other reserve powers to intervene in the day-to-day politics of the moment.
Although it is an exercise of a reserve power, the Prime Minister's appointment is based on established principle which I have talked about on two occasions this year. In speeches, first to a dinner to senior members of the Press Gallery in June, and then later to the New Zealand Law Students' Association in September, I reiterated that while the electoral system had changed, that the respective roles of the Governor-General and the leaders of the political parties in Parliament had not.
I said, in almost identical words on both occasions as follows:
"Whatever the electoral system that is used, the Governor-General will always appoint, as Prime Minister, the person who has been identified through the government formation process as the person who will lead the party, or group of parties, that appears able to command the confidence of the House of Representatives. I expect that there will be clear and public statements that a political agreement has been reached, and that a government can be formed that will have the support of the new Parliament. In appointing the Prime Minister, I will abide by the outcome of the political process."
Looking at this in detail, a number of points become clear. As government formation is a political matter, it is not any part of the Governor-General's role to become involved in the negotiations, unless the process is clearly at a stalemate. Nor is it any part of the Governor-General role to "anoint" anyone—whether they are the incumbent prime minister or the leader of any other political party—to be the heir-apparent. Who emerges as the leader is a political decision for politicians to decide. To become involved in either of these two ways, would threaten the neutrality and non-partisanship of the Office of Governor-General.
Secondly, with the exception of exercise of the reserve powers, the Governor-General acts on the advice of ministers. It is therefore my duty to ensure there is always a government in place that can advise on the discharge of my duties.
It is also up to the politicians to decide whom they want to negotiate with. Government formation is a political decision, and there are many examples from throughout the world where Prime Ministers have come from parties other than the largest one in the legislature. As Professor Joseph also states:
"Where there is a proliferation of parties in the House, there is no guarantee that the party with the largest number of seats will be in government. It is a matter of locating the group of parties that can command the confidence of the House and the country must await their decision on who will be the new Prime Minister."
The fact that a Government has to command the confidence of the House is something that has been consistent both under the former First-Past-the-Post (FPP) system and now the Mixed Member Proportional (MMP) system.
The reality of FPP elections, at least as they operated in New Zealand, was that they effectively elected majority governments, even if those governments did so with less than 50 percent of the vote. That, of course, is not always the case elsewhere. Canada, for example, is on its second minority government elected under FPP. In New Zealand in 1957 and in 1981, governments took power with slender majorities of one.
Under MMP, New Zealanders effectively elect parties to Parliament and those parties then negotiate to form a government. Again, it is not impossible for a single party to hold a majority under proportional representation but they would be rare exceptions. Each election since 1996 has seen minority governments here of one sort or another.
One particular issue that arose immediately after the election was the timing of the appointment of the government. Government House received emails exhorting me to fast track the appointment. We also received emails stating that as the writs, confirming who would be the members of Parliament had not yet been returned, that I should not appoint any government at all.
Let me deal with both issues in turn. It is not for the Governor-General to "fast track" anything. The speed with which governments can be formed depends on the speed with which the politicians are able to negotiate an agreement that can guarantee a government with a majority in the House of Representatives.
Parties that say before an election that they will support another after the election, may well face different choices once the outcome of the election is determined. Negotiations have to occur and political agreements have to be reached. The requirement for not only "public" but also "clear" statements means that passing comments to reporters in the hallways of Parliament do not necessarily constitute a political agreement.
Once agreement has been reached, it is then up to the leaders of the political parties that hold those agreements to communicate through clear and public statements that they have the necessary agreements in place. With that information, a Governor-General can confidently appoint the leader of that grouping as Prime Minister and can swear in the government, with the knowledge that the new Prime Minister has the necessary majority in the House, particularly on matters of confidence and supply.
As we now know, Mr Key was able to reach written agreement with the leaders of other parties in Parliament and was able to publicly and clearly show that he had the confidence of a majority in the House. I received a call from him on Sunday confirming the public statements that he had been successful in forming a new government. As a result, I was able to appoint the new government today.
As for the matter of appointment occurring before the return of writs, the Constitution Act 1986 states that Ministers of the Crown must be Members of Parliament. The new MPs, however, are not sworn in until the House is summoned after the return of the writs.
However, the Constitution Act also says a person who is not an MP may be appointed as a Minister so long as they were a candidate at the preceding general election and that they become an MP within 40 days of their appointment. Given the agreements for confidence and supply that John Key had in place, which meant he could command a significant majority, it was open to me to appoint him as Prime Minister and to swear-in the new Government. Parliament will convene in early December. This is not the first time that appointment of government had occurred before return of the election writs and indeed, Helen Clark and her ministers were sworn in on the same basis in 1999.
What today's events show is the importance of sound procedural practices in the ensuring good governance. While some people regard these processes as obscure, they are the culmination of hundreds of years of practice. They have their origin in constitutional changes in Britain that saw that country change from a feudal and autocratic monarchy, where prerogative rights were pre-eminent, into a constitutional monarchy founded on democratic principles.
That transformation was not without its costs. In the English Civil Wars of the 17th Century, thousands lost their lives to settle the question of who was the dominant player in government—the Crown or the Parliament. It was one of the first wars which had, at its heart, a struggle about principles rather than territory.
Like many other nations, New Zealand has inherited the Westminster tradition, adapting it to suit our circumstances - but without constitutional violence. I suspect it is for that reason that many New Zealanders are surprised to be told that while theirs is a young country in a modern sense, it is an "old democracy". New Zealand has been self-governed since the 1850s and all New Zealanders have had the right to vote, regardless of wealth, race or gender, since 1893. New Zealand had its own wars of course in the 19th century, but the primary focus there was on land, and the question of the Westminster tradition was never under challenge.
The principle that democratically elected parliaments pass laws that are implemented by democratically elected ministers is a key principle that underlines good governance and good administration. It is one of several principles—the rule of law being another important principle—that provides a guide in carrying out my constitutional duties, particularly that of granting of what is called the Royal Assent to legislation.
Government House regularly receives calls, letters and emails urging the Governor-General not to sign particular bills. But it is not the role of an appointed Governor-General to usurp or second-guess a democratically elected government except, as I have noted, in the most extreme and rarest of circumstances.
But the strength of democracy relies on the participation of New Zealanders in the political process. It enables them to make submissions on bills before Parliament or policies being considered by central or local government. It involves the wise use of the right to peaceably assemble and to petition governments. It enables them to serve on juries and, most importantly, it requires them to vote.
Despite voting being voluntary in this country, until recently New Zealand had one of the world's highest turnout rates, with more than 90 percent of New Zealand adults regularly voting in general elections. However, I am advised that provisional results show that slightly more than 74 percent of New Zealanders voted in the 2008 election, one of the lowest levels ever recorded.
While this downward trend has been experienced internationally, and our rates are still high compared with many other nations, that about one in four adult New Zealanders chose not to vote, this time, should be seen as a matter of concern and challenge.
The reasons behind this decline are complex and not subject to simple answers. Research by the Electoral Commission indicates that increasing interest in politics will be important in arresting the decline in turnout.
I am advised that the new school curriculum places greater emphasis on the rights and responsibilities of New Zealand citizenship and indeed, I also understand that several government agencies have, or are, developing resources for use in our classrooms. These initiatives are to be commended. Staff in the Office of the Governor-General are also working on resources to better explain my role in government as a part of a review of the Government House website.
Improving knowledge of civics—of the rights and responsibilities of being a New Zealand citizen—is a task that should not fall to just one agency but to us all. The Chief Executive of the Electoral Commission, Dr Helena Catt, made this point well when she said:
"Parties, politicians and the news media - who all have a vested interest in a healthy democracy - need to consider the way they help or hinder the building of interest through the way they do their work and present themselves and their work to the public."
But I would add that this is a matter not just for parties, politicians and the media, but for all New Zealanders.
A few days before today's appointment, I attended a poignant service at the National War Memorial to commemorate the 90th anniversary of Armistice Day. That ceremony was held at a site where the body of an unknown soldier now rests. The Unknown Warrior was one of 103,000 New Zealanders who served overseas in World War I and was one of the 18,500 who died in or because of the war.
The Tomb of the Unknown Soldier not only represents those who died in that War, but all those New Zealanders who have died or served in conflicts far from home protecting and upholding the democratic freedoms we all hold dear.
The sacrifice of those men and women places an obligation on everyone in the community to work together to strengthen our democracy. It is only by carrying the burdens and responsibilities of living in a democracy that we will continue to be able to enjoy the rights and freedoms it bestows on us all. Today's appointment of a new government symbolises the mighty gift we have inherited as a result of that great sacrifice.
And on that note, I will close in New Zealand's first language Maori, offering everyone here greetings and wishing you all good health and fortitude in your endeavours. No reira, tena koutou, tena koutou, kia ora, kia kaha, tena koutou katoa.