New Zealand Law Students' Association Conference

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: David Dewar, President of the New Zealand Law Students' Association and Members of your Executive; Honourable Justice Robert Chambers, Judge of the Court of Appeal; Professor Paul Rishworth, Dean of the University of Auckland School of Law; Distinguished Guests otherwise; Ladies and Gentlemen.

Thank you for the invitation to address your conference.  I would like to take an opportunity to offer some thoughts on the role of the Governor-General and something on your future legal careers against a backdrop of my own life in the law.

Starting at the end, my professional work has steeped me in our country's legal and justice systems since I began work as a law clerk in Auckland law firms, including the Crown Solicitor's Office (Meredith Connell), just on 40 years ago.

I graduated from the University of Auckland in 1970, having completed a degree while working as a law clerk during the day and attending lectures in the late afternoon or early evening.

It was then the long-established, but dying-out way, to earn one's stripes and, as a mode, it has since fallen from favour.  While many, who study law these days, have no intention of working in law, I cannot help but suspect that something has been lost for those who do seek a career in the law.  I continue to believe there is immense value in seeing the law being practised at the coal face whilst studying its principles, and I have never resented what I picked up at the margins whilst stamping and registering documents, filing civil actions, and doing rudimentary estate administration and conveyancing work.

The University of Auckland, let alone the LawSchool, was also a much smaller institution in those days, based solely on the central city campus.  There were about 9,000 students in 1970—whilst today there are more than 40,000 on five campuses. 

Since those days as a law student, I have been fortunate enough to see the legal system from a number of angles.  Twelve years as a lawyer—as a prosecutor as well as defence counsel—followed by a similar time as a Judge with a general jurisdiction warrant as well as one for criminal jury trials.

I have spent time as a Prison Board Chairman, a Parole Board Member and a number of years as a working member of the Government's Criminal Law Reform committee.  Lastly in the 10 years working as an Ombudsman, I was involved in dealing with complaints about unfairness made by people against government organisations, including those remanded or sentenced in our country's prisons and for people seeing information under New Zealand's freedom of information legislation.

As the Governor-General today, I am in a different place, at the head of the system, so to speak and expected to discharge three sorts of functions -constitutional, ceremonial and community.  Each have their fascinations for someone recreationally as well primarily interested in the law.  But there is also an immediate difference personally.  Whereas much of my life in the law proper the duty and responsibility was mine alone in the governor-general role comes the vital contribution made by my wife Susan especially in the ceremonial and community - most times together and sometimes independently.

Taking first "constititutional" - which is mine - on the advice of Ministers, I consider and sign into effect laws and regulations and the warrants for appointment of diplomats, senior civil servants, judges and commissioned officers of the New Zealand Defence Force.  From the first pieces of legislation I assented to—the Coroners Act 2006 on the 29 August and the Kiwisaver Act 2006 a few days later on 6 September 2006—I have begun to lose count of the pieces of legislation or regulations I may have assented to or signed. 

There has been the singular experience of signing into law the largest piece of legislation ever passed by our Parliament, which you will probably not be surprised to find was last year's Income Tax Act 2007.  At 2,855 pages long it covers four volumes.  The Minister of Revenue, Hon Peter Dunne, assured me that, despite its doorstop size, it was better worded and repealed an even larger amount of incomprehensible law.

The role of the Governor-General is one that is the cause of much musing in law schools and of occasional consternation among those in the public, angry at a particular Government's decision or a law that Parliament has passed.  My office regularly receives letters or emails calling upon me to dismiss a particular Minister or often enough, the entire Government.  We even recently received an email from one gentleman asking Government House to investigate problems he was encountering with his eco-light bulbs!

Much of the interest in the role centres on 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 where to grant the royal assent would be unlawful or would irreparably impair representative democracy.

Professor Philip Joseph, of the University of Canterbury Law School, has called the term "reserve powers" a "misnomer."  As he notes in his textbook, 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. The question is whether, owing to exceptional circumstances, the usual convention enjoining ministerial advice does or does not apply.  Constitutional convention cannot at law extinguish or attenuate legal powers, nor can constitutional convention amplify or create legal powers."

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 intervene in the day-to-day politics of the moment.

And that is as it should be.  New Zealand is a democracy.  New Zealanders elect their representatives to make laws for the good governance for the nation.  It is neither the role nor the right of an appointed Governor-General to usurp the decisions of a democratically elected Government. 

In the 25 months since being appointed as New Zealand's 19^th Governor-General, I have experienced almost every aspect of the job.  The two remaining aspects are to appoint a Prime Minister after this year's General Election and to formally open a new Parliament with the Speech from the Throne. 

With the election imminent, I am often asked how I will decide who will be Prime Minister.  My predecessor but one, Sir Michael Hardie Boys, who was the first Governor-General to deal with government formation under MMP, made it clear that, while the electoral system had changed, the respective roles of the Governor-General and the leaders of the political parties in Parliament has not. 

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.

But while this aspect of the job gains the most interest from political scientists, constitutional lawyers and journalists, the reality is that there is also considerable time under heading "ceremonial" both here and overseas and that most of my time, and that of my wife Susan, is absorbed by the "third C" that of community leadership.  That is broad and best described by saying that from differing perspectives among 150 patronages, I have also accepted the role of being Patron of PARS the New Zealand Prisoner's Aid and Rehabilitation Society and as well a recent (50 or so member) Recruit Wing from the Royal New Zealand Police College.

Expatriate Australian academic, Dr Germaine Greer, recently suggested that the Governor-General's role was so monotonous and protocol-bound that it could be done by a robot.  The suggestion by her is, in my view, laughable.

As former Prime Minister Sir Geoffrey Palmer and Dr Matthew Palmer, both in their time teachers at the Law School of Victoria University of Wellington, noted in their book, Bridled Power:

 "People tend to think the office of the Governor-General is of little significance, which is wrong, or that it represents a substantial check on the excesses of executive government, which is also wrong."

Put another way, a Canadian commentator named Frank MacKinnon once described the role of the Governor-General well when he described the position as being like a constitutional fire extinguisher.  He said, and I quote:

"[Governors-General] like real extinguishers, they appear in bright colours and are strategically located. While everyone hopes their emergency powers will never be used, the fact that they are not used does not render them useless."

Governors-General have had the burden of constitutional duties, and to receive what is offered by Ministers who are charged under the Letters Patent to keep the Sovereign's representative fully informed and to provide any information requested.  This is the textbook right to be consulted, to encourage and to warn.

In practice this is played out by receipt in advance of copies of all instruments I am expected to sign on the advice of the Executive Council.  As one would expect of someone with a legal background, I consider what is on offer and the statutory authority under which it might be made.  The Minister responsible for the recommendation on which the Council will base its advice will be present at the meeting and be called on to provide further information or clarification if that is sought.  In other words, an active role is called for although judgement is also called for—in being not ever being considered a pushover who might sign anything put up but also not being considered a nitpicking pedant whose attention ought be eleswhere.

Returning to Dr Greer's suggestion about automatons or robots, I suspect her view stemmed from a misguided notion that only those who negatively affect others can have any influence in government, the economy or society.  From a different perspective, the political sociologist Professor Steven Lukes, from New YorkUniversity, noted in a 2005 book that it is a mistake to define power in a [negative] way.  He noted, and I quote:

"Power is a capacity, not the exercise of that capacity—it may never be, and never need to be exercised; and you can be powerful by satisfying and advancing others' interests."

I agree with this.  It has long seemed to me that one of the more admirable aspects of having power is to exercise restraint in its use.

I'm not sure to what degree I may have "satisfied others' interests" but I do see it as an essential Governor-General role to highlight and stress those activities that positively unite New Zealanders rather than those that might negatively divide our community.  Nor do I see it as any part of the Governor-General's role to engender alarm or to wantonly upset apple carts. 

I recognise that this is an approach that will not lead to regular coverage on the front page of newspapers or as item one on the television news, but neither do I believe that that should be the case.  I also believe that the Office of Governor-General should always be more important than any individual incumbent.

The role of Governor-General is unlike any other.  One is not a celebrity and is not out to garner popularity or votes. Even so, I never fail to be agreeably enthused by the warmth with which my wife Susan and I are received almost everywhere we go. 

For just one example, on Waitangi Day this year, we attended the Ngati Kahungunu Waitangi Family Day near Hastings.  This was an effort supported by local government, and we joined a crowd of several thousand people genuinely pleased to be there and to see that we were too.  I will admit that both we and they were somewhat overwhelmed.  Even the local gang members had turned over their jackets so their patches weren't visible.

In my previous careers, I was more often than not involved in focusing on or resolving inherently negative matters and being focussed on the error, mistake or transgression.

As a lawyer it was prosecuting or defending someone accused of a criminal offence.  As a judge, presiding over trials and sentencing those convicted.  As an ombudsman, it was attempting to resolve grievances between members of the public and governmental agencies, whether to do with actions or the provision of official information.

As Governor-General, another facet of the jewel of our community is exposed, when there is demonstrated, again and again, the opportunity to see New Zealanders at their best.

The Governor-General's role is one I have found to be hugely exhilarating as well as challenging.  Involvement with events and with people who influence events are themselves sources of huge job satisfaction.

Every day is different.  There are 500 plus or minus engagements every year.  Increasingly the role has an international aspect that of representing New Zealand and New Zealanders in other world settings.  In the last year, for example, accompanied by my wife, I have made the first State Visits by a New Zealand Governor-General to Canada and to Mongolia, whilst there was also the wonderful privilege of representing the country at the opening of the Beijing Olympics and being in the chamber of the United Nations, when the Franklin Delano Roosevelt International Disability Award was presented to our country in recognition of the many statutory and administrative procedures which New Zealand operates recognising those who are less abled than the rest.

There will often be the schedule calling for attending three and sometimes four functions in a day.  Attending and speaking at a dinner will be followed by meeting a community group the following morning and speaking to another gathering in the late afternoon. 

We see people in all sorts of emotions—happy, tense, sad and excited.  A recollection that sticks in my mind was the St John occasion in Auckland last year when a little seven-year-old boy got so excited about being in the parade that, when I came over, he saluted with both hands.

In my public addresses I have consistently stressed some key themes—the richness and challenges of New Zealand's increasing cultural diversity, the need for greater community engagement and for civic education. 

There are many links between these themes, and I believe those versed in a law have an important role in connecting them up. The society you will work in is dramatically different from that into which I entered when I graduated 38 years ago.

New Zealand's family and relationship structures and its ethnic, religious and cultural make-up are increasingly diverse.  The last census found that almost a quarter of the people living in New Zealand were born overseas.

A century ago, most foreign-born New Zealanders would have hailed from Britain and Ireland.  Today about 28 percent are from those isles—the same proportion as those who may have come from Asia.

In a rapidly changing society, there seems to me to be a need to engage with communities and to promote the rights and responsibilities of being a citizen in our country's democracy.  I believe that I am in a position to offer you, Ladies and Gentlemen, as I come to an end, two challenges (or wero) and to each of you.

First, I believe those with a legal background have much to offer in assisting community groups and by doing things such as serving on local authorities, school boards and/or on the governance mechanisms of many organisations that work in the interests of our community.

Secondly, for those who choose to work as practising lawyers, I note that the law will give you much.  Following admission to the Bar, as officers of the court, you will have a responsibility to ensure that everyone, regardless of their background, will receive fair, sound and independent legal advice and representation and that they will thus be fully cognisant of their rights as citizens. 

These are not easy tasks.  For some who have settled in New Zealand, the courts and legal process in their former countries may have been viewed with suspicion, if not outright fear.  You will have to work hard to gain their trust and respect.

But it is one of the many and varied challenges of a life imbued by the law, whether you're studying at university, working in a practice, serving on the bench or, in my case, signing laws and regulations into effect. 

In the words of Sir Thomas More in Robert Bolt's play, A Man for All Seasons, if the law "is a causeway upon which so long as he keeps to it a citizen may walk safely," it is your role to ensure that that path is well maintained. 

In that regard, may I wish you all the best for your futures and on that note, close in our country's first language, Maori, offering everyone greetings and wishing you good health and fortitude in your endeavours.

No reira, tena koutou, tena koutou, kia ora, kia kaha, tena koutou katoa.