This Realm of New Zealand

The Sovereign, the Governor-General, the Crown

Janet McLean, Alison Quentin-Baxter

• Publisher: Auckland University Press
• Year: 2017
• ISBN:
  9781775589631
• Edition: 1
• Topic: Droit
• Subtopic: Droit public

New Zealand is a democratic constitutional monarchy, one of Queen Elizabeth II's sixteen realms. This book provides a comprehensive account of how the Queen, the Governor-General and the Crown interact with our democratically-elected leaders under New Zealand's unwritten constitution.The authors explain how these islands in the South Pacific were first brought within Queen Victoria's dominions, the arrangements then made for their future government, and how those arrangements developed over time with the pressure for democracy and responsible government to become New Zealand's current constitution. They discuss the responsibilities of, and interactions between, the key office-holders: the Sovereign herself; her representative, the Governor-General; the impersonal and perpetual Crown, and the Prime Minister, other Ministers and Members of Parliament. All of them affect in some way the government which runs the country day to day. In an afterword, the authors examine some of the key issues to be considered should New Zealand become a republic.The parliamentary democracy that we take for granted can conceal New Zealand's ultimate constitutional underpinnings in the monarchy. But, as the authors make clear, the monarchy's continuing role in New Zealand's constitution is significant. And understanding the roles of the Queen, the Governor-General and the Crown will be critical as we look forward to debates about the possibility of a republic in New Zealand.

CHAPTER 1

The Purpose of this Book

This royal throne of kings, this scepter’d isle,…

This precious stone set in the silver sea,…

This blessed plot, this earth, this realm,…¹

That is how Shakespeare described the realm of England in the reign of King Richard II.² A “realm” is a kingdom. From the 15th century to halfway through the 20th, his successors remained the Kings or Queens of a single realm, although it had spread around the globe. Eventually the idea of a single indivisible realm became untenable. When Queen Elizabeth II came to the throne in 1952, she was recognised as having become the Sovereign of seven separate realms. One of them was New Zealand.³ Their equal and independent status gives the Sovereign a direct and personal connection with each of what are now her 16 realms. The United Kingdom remains a realm, but its government no longer has any constitutional role in any of the others.

In this book we tell the New Zealand story: how these islands in the South Pacific were brought within Queen Victoria’s dominions, the arrangements then made for their future government, and how those arrangements developed to become New Zealand’s constitution today. We discuss the responsibilities of, and interactions between, the key office-holders: the Sovereign herself; her representative, the Governor-General; the impersonal and perpetual Crown; and the Prime Minister, the other Ministers and all the Members of Parliament. There are others, too, with on-stage roles.

The time is overdue for telling, or retelling, the story of how New Zealand’s present-day constitution was shaped. There is an urgent need to broaden the understanding of the people who live under it, and to make them better informed about the implications of any proposals for constitutional change. An increasing proportion of New Zealand citizens were born elsewhere: a common British heritage or knowledge of the Treaty of Waitangi cannot be taken for granted. Popular culture tends to confer on members of the royal family a kind of celebrity status. The monarchy’s place in the workings of the political and constitutional system is largely invisible. Many young people, including those studying law at New Zealand universities, are more familiar with the United States Constitution than their own. The aim of this book is to make the workings of the New Zealand constitutional monarchy more accessible, and to correct some common misunderstandings about how it works.

In this book we explore the ways in which the Sovereign became interwoven in the history and fabric of the New Zealand constitution: how Queen Victoria came to reign over its three main islands, and also others, further offshore, and later Sovereigns eventually became recognised as the King or Queen in right of New Zealand; how monarchy became constitutional monarchy in response to the demands for democracy; and how New Zealand gradually acquired full self-government, free of the United Kingdom Government’s control. We also trace developments in the institution of the monarchy itself — including the recent changes to the laws of succession to the throne.⁴ In doing so, we examine the personal roles of the Queen in right of New Zealand and of her representative, the Governor-General, at the present day. We also identify important functions of the impersonal Crown.

A main feature of the New Zealand constitution is that the powers of government are often vested in the Sovereign, or the Governor-General, instead of in those who make the decisions about when and how to use them. It therefore conceals the democratic revolution it achieved — the recognition that the Sovereign or her representative must act on the advice of Ministers who are elected Members of Parliament. That revolution left the location of executive powers with the Sovereign but put their exercise into the hands of the people’s elected representatives who, collectively, have the confidence of Parliament. Some of the ancient forms and language have lingered on, including in relation to land tenure,⁵ but they have had to be adapted to modern New Zealand circumstances and expectations.

The Sovereign issues a legal instrument known as the Letters Patent constituting the office of Governor-General of New Zealand. In that instrument, she delegates to the Governor-General, and, through the Governor-General, to Ministers and officials, her executive authority and powers of government. Because that instrument is the basis of New Zealand’s executive government, we describe it at some length.⁶ As in the making of the Letters Patent themselves, almost all of the powers now exercised personally by the Sovereign or the Governor-General are required to be exercised on the advice of responsible Ministers. In discussing the extent of the Governor-General’s duty to act on that advice, we identify the relevant “unwritten” rules of practice, known as constitutional conventions. The conventions enable the powers still legally vested in the Sovereign or the Governor-General to function acceptably in a modern democracy.

The main exception to the duty to act on ministerial advice concerns the powers exercised in the process of forming or changing a government otherwise than after a general election at the end of Parliament’s three-year term. In that area the Governor-General has important powers, but it is not easy to determine how far, within the governing principles, he or she still has a limited element of personal discretion. We have tried not merely to describe the relevant practices in New Zealand and elsewhere, but also to identify gaps in the constitutional conventions as currently formulated, and sometimes to suggest reforms. In doing so we seek to dispel the widely held impression that, as in colonial times, the Governor-General still acts as a constitutional backstop or “guardian of the constitution”, and accordingly may exercise the powers to appoint or dismiss a Prime Minister, grant or refuse a dissolution, or act or refuse to act without, or against, the advice of a Prime Minister whose government retains the constitutional right to govern.⁷ Instead we recommend ways in which the recognised duty to keep the Governor-General informed could be made more meaningful and emphasise the fact that not only the Governor-General but also the Prime Minister and all the other constitutional actors share the responsibility of making the constitution work as it should.⁸

On the same note, we discuss the role of the Sovereign or her representative in assenting to Bills in order to give them the force of law. We consider whether it would ever be proper to refuse such assent. Certainly, there is no longer a recognised discretion to refuse assent, but the fact remains that a Bill does not become law until it has received the royal assent. Again we emphasise the associated constitutional duties which fall on other actors such as the Clerk of the House and the Attorney-General.⁹ The Governor-General’s position as Commander-in-Chief has also been regarded as a source of unspecified powers in respect of the Defence Force. We explore the historical origins of that office and its relevance today.¹⁰

From very early times and to the present day, many Māori have aspired to and developed a special relationship with the reigning Sovereign.¹¹ Some aspects of that relationship have no doubt been mythologised, or have remained primarily aspirational, but others have served important political, symbolic and constitutional purposes. We consider the character of those relationships and their implications for the future of the constitution. The Sovereign and the Governor-General are also a part of New Zealand’s constitutional life in ways that are even less well known. In the first quarter of the 20th century the Cook Islands, Niue, Tokelau and the Ross Dependency were brought within the boundaries of New Zealand or put under its administration. Along with New Zealand itself, and with the agreement of their governments, those countries and territories together comprise the Realm of New Zealand. We consider New Zealand’s relationships with the other parts of the Realm, although the main focus is on New Zealand itself. In discussing the constitution as a whole, we draw both parallels and contrasts with the Sovereign’s larger realms, the United Kingdom, Canada and Australia.¹²

Meanwhile, the Governor-General’s role has been quietly modernising and continues to evolve. We trace the development of the Governor-General’s exercise of the Head of State role in representing New Zealand in the sphere of international relations.¹³ We also look at the ways in which successive Governors-General have been innovative in building relationships and interacting with other New Zealanders in a wide range of settings.¹⁴

That brings us to a special objective in writing this book. In April 2010 the New Zealand Parliament debated a private member’s Bill aimed at bringing about — or at least raising the possibility of — a major constitutional change. The Head of State Referenda Bill proposed a nationwide referendum, or perhaps two referendums, giving New Zealanders the choice of keeping the Sovereign as their Head of State or substituting a Head of State elected either by at least 75 per cent of the members of the House of Representatives or directly elected by the people.

As it turned out, there was not then a majority in Parliament willing to give the Bill even a first reading so that it could be referred to a select committee. It therefore lapsed. Those who spoke against it considered that there were other, more urgent, constitutional issues requiring Parliament’s attention. There was no real discussion of the substance. The House divided on party lines. There was not much comment in the news media. It therefore appeared that the idea of moving away from New Zealand’s monarchical constitution was not then a live issue. From our point of view, the most interesting feature of the Bill was the assumption that replacing the Governor-General with a New Zealand citizen as the country’s Head of State was all that would be required. We explain that making a republican constitution would be a larger task, although it could of course be done.

In an Afterword to the book we consider the possibility that at some time in the future the people of New Zealand may wish seriously to consider giving themselves a republican constitution. Our goal is not to take sides in that debate. We regard ourselves as interested but impartial constitutional lawyers and commentators. We do not advocate change to a republic, but nor do we oppose it. We give some thought to what becoming a republic would involve, and identify some of the main issues that would need to be considered.

The Sovereign, the Governor-General and the Crown are deeply embedded in the New Zealand constitution and other law. They can be removed easily enough, but, with their removal, other aspects of the constitution and the law would also disappear, including the whole of the executive branch of government. That aspect of the constitution would therefore need to be reconstituted. The people of New Zealand would need to make choices about the form the republican constitution should take. That said, it would not be necessary to open up an unlimited range of possibilities about the nature of the constitution itself. New Zealand has a parliamentary system of government. The executive branch is drawn from among the elected Members of Parliament, the legislative branch. In our view, the parliamentary system serves New Zealand well and should be retained. On that basis, a republican constitution could be made to work in practice much as the constitutional monarchy works now.

In the book as a whole we have tried to establish a benchmark by exploring the dynamics of the present constitutional monarchy. Where there are gaps or uncertainties, we have made proposals for clarification. With a better understanding of the way the constitution works now or could be made to work, New Zealanders will be better equipped to meet the challenges of the future, whatever form they may take. We aim to provide a comprehensive account of New Zealand’s monarchical constitution as it operated in December 2016. In doing so, we have drawn on the wealth of published material that bears on the continuing significance of the monarchy. Some areas, however, have remained largely outside the range of the commentators. One is the nature and purpose of the Letters Patent constituting the office of Governor-General. The current instrument (amended in minor ways since it was issued by the Queen in 1983) was largely based on a 1980 report for the Prime Minister’s Department by one of the authors, Alison Quentin-Baxter. This book incorporates and builds on those parts of her 1980 Report that still remain relevant.

We hope that the book will help people to understand the New Zealand constitution as it is now and to make it work well. For those who hold constitutional office or have the responsibility for giving constitutional advice, or are affected by what governments do or do not do, we believe it will fill some gaps in the existing sources. It may also be of professional interest in some of the other realms. But we do not think of it as a book that is just for the professionals. Although it is written within the discipline of constitutional law and must be footnoted accordingly, we have tried hard to make it a book that readers who are not lawyers can enjoy. We see potential readers and users as including people working in other fields or with other interests, including, we hope, members of the general reading public. The constitution belongs to all New Zealanders. Whether or not they are consciously “interested” in the constitution as such, all have an interest in how it works for them, and for their country.

CHAPTER 2

Building the Modern Constitution

1
SETTING THE SCENE

The beginning

Captain William Hobson, an officer in the Royal Navy, sailed for New Zealand at the end of August 1839. His Instructions required him:¹

to treat with the Aborigines of New Zealand for the recognition of Her Majesty’s Sovereign authority over the whole or any part of those islands which they may be willing to place under Her Majesty’s dominion.

“Treating” with the Māori inhabitants of New Zealand meant entering into a treaty.

Hobson’s Instructions also set out a plan for the immediate and longer-term government of the new British colony. Some British subjects had already settled there, and more were planning to follow. In the expectation that New Zealand would become a British colony, Queen Victoria had already exercised her power to make provision for its future government. When Hobson landed in the Bay of Islands to carry out his mission, he carried with him a Commission from Queen Victoria appointing him as Lieutenant Governor “in and over that part of Our territory which is or may be acquired in sovereignty in New Zealand”.

In this chapter we trace the development of New Zealand’s present-day constitutional arrangements from their British colonial origins so far as they affect the main players in our story: the Sovereign, the Governor-General and the Crown. We begin with the Queen’s acquisition of sovereignty. That, without more, would not have provided the new colony with a government, or established any rules or principles about the kind of government it should have. Between 1840 and 1870, the three branches of government assumed their present form, and the modern relationship between a Governor and his responsible advisers was put in place. The working relationships developed during that period colour the functioning of the constitution today.

In the 1920s and 1930s, New Zealand, already one ...