Letters Patent Constituting the Office of Governor-General of New Zealand

Last updated

The Letters Patent Constituting the Office of Governor-General of New Zealand is a royal decree and a part of the uncodified New Zealand constitution. Sometimes known as the Letters Patent 1983, [1] the instrument has been amended twice (in 1987 and 2006) since its original issue in 1983. The letters patent—essentially an open letter from the monarch (in this case, King Charles) that is a legal instrument [2] —constitutes the office of governor-general as the monarch's representative in the Realm of New Zealand, vests executive authority in the governor-general, establishes the Executive Council to advise the governor-general, and makes provision for the exercise of the governor-general's powers should the office be vacant. [3]

Contents

Background

The 1917 Letters Patent was issued by King George V and counter-signed by the British Secretary of State for the Colonies, Sir George Shuster, and sealed by the Great Seal of the United Kingdom. [4] The 1917 Letters Patent were issued following the proclamation of the Dominion of New Zealand in 1907, renaming the office of "governor" to "governor-general". [5] New Zealand adopted the Statute of Westminster in 1947 and letters patent then became the responsibility of the New Zealand Government, not the United Kingdom. It was not until the 1960s, with the appointment of the first New Zealand-born governor-general, Arthur Porritt, on the advice of Prime Minister Keith Holyoake, [6] that the New Zealand Government decided that the 1917 Letters Patent needed updating. [7] Following 1975 Australian constitutional crisis (where a governor-general dismissed a serving prime minister), greater urgency was given to reviewing the governor-general's powers. [5]

In 1976, the Prime Minister's Department asked lawyer (now Dame) Alison Quentin-Baxter and her husband Professor Robert Quentin-Baxter to review the Letters Patent 1917. [8] [9] In anticipation of new letters patent being issued, Parliament passed the Seal of New Zealand Act 1977. [4]

The review of the 1917 Letters Patent was completed in 1980. The Cabinet Office published the review, [10] recommending new letters patent be issued. [11] Following the report, draft Letters Patent were circulated with the governments of Niue and the Cook Islands, who gave their informal approval. [2]

Prime Minister Robert Muldoon wanted the Queen to sign the Letters Patent during her 1981 Royal Tour of New Zealand. [12] This did not eventuate as Labour Party backbenchers refused to support the idea, believing that the Royal tour had been timed so that it was close to the 1981 general election (Labour's front bench, including party leader Bill Rowling, David Lange and Geoffrey Palmer, all supported the Queen signing during the Royal Tour). [12] It was not until 26 September 1983 that an Order-in-Council was issued requesting the Queen's signature. [2] The Queen signed the Letters Patent on 28 October 1983, [13] and soon after the new letters patent were counter-signed by Prime Minister Robert Muldoon, [10] and sealed by the Seal of New Zealand. [2] This was the first time a New Zealand prime minister had signed the document, symbolising that it had been "patriated"—that is, made a New Zealand legal instrument. [1]

The new Letters Patent came into force on 1 November 1983. [2] [14]

Style

The Letters Patent are written as though they are an open letter from the Queen, [2] although they are in fact a legal instrument (specifically, a royal decree) made under the Royal Prerogative, [13] and are treated as statute law. [15] The 1980 review of the 1917 Letters Patent drew on the experience from the Canadian Letters Patent, 1947 created after Canada adopted the Statute of Westminster 1931. [2] The style was criticised as "quaint, and certainly belonging to a century other than the 21st." [16]

Realm of New Zealand

Clause I of the Letters Patent defines the Realm of New Zealand as consisting of New Zealand, the Cook Islands, Niue, Tokelau and the Ross Dependency. (The governor-general of New Zealand is also separately titled the Governor of the Ross Dependency). [12] [17] This definition of the Realm of New Zealand recognised the new constitutions of the Cook Islands and Niue granted self-government. [18]

Governor-General and Commander-in-Chief of New Zealand

Clause I of the Letters Patent constitutes the office of "Governor-General and Commander-in-Chief of New Zealand". [17] The full title is rarely used, and usually "Governor-General" is used because the commander-in-chief role is largely ceremonial also. [19]

Clause II of the Letters Patent states that the governor-general is appointed by the sovereign, and serves "...during Our pleasure." [20] Clause II does not spell out that the sovereign makes the appointment on the sole advice of the New Zealand prime minister, [21] and that governors-general usually serve a term of five to six years in office. The commission appointing the governor-general, known as the Terms of Appointment, [22] defines this term (which can be extended, as was the case in 2006 with Dame Silvia Cartwright) and is counter-signed by the New Zealand prime minister, signifying the reality that appointment is on the prime minister's advice. [21]

The governor-general is commander-in-chief of the New Zealand Defence Force, but the Letters Patent does not further elaborate on this. The Defence Act 1990 further defines the role of commander-in-chief. [23]

The Letters Patent delegates the sovereign's executive authority in the governor-general, and adds:

"Our Governor-General shall do and execute all the powers and authorities of the office according to ...such laws as are now or shall hereafter be in force in Our Realm of New Zealand or any part thereof." [24]

This is a requirement that the governor-general act within statute law in force. [25]

Executive Council

Clauses VII-X of the Letters Patent establishes the Executive Council to advise the governor-general on the execution of his or her prerogative powers. [26] Implicit in the Letters Patent is the requirement for the governor-general to act only on the advice of the Executive Council. The governor-general can act on the advice of a specific minister responsible, should this be specifically defined in statute. [25]

Following a general election, the governor-general exercises his or her reserve powers to appoint a party leader as a member of the Executive Council and prime minister. [27] Then, on the prime minister's advice, the governor-general appoints the remaining members of the Executive Council (whether inside or outside Cabinet). [27]

Royal prerogative of mercy

Clause XI of the Letters Patent defines the exercise of prerogative of mercy in New Zealand. [28] The governor-general acts on the advice of the responsible minister—in the case of the prerogative of mercy that is the minister of justice. The governor-general has the power to grant a pardon, reduce a sentence, or refer a case back to the courts for reconsideration. [29]

Amendments

1987

Following the 1984 general election, a constitutional crisis arose where the outgoing Prime Minister, Robert Muldoon, apparently refused to implement the advice of the incoming Prime Minister, David Lange. One resolution to the crisis, canvassed by Deputy Prime Minister Jim McLay, was the replacement of Muldoon as party leader and therefore prime minister by the governor-general, following a vote of no-confidence by caucus. [30] This would have left the governor-general with no advisers, as there were no sworn-in members of Parliament to be members of the Executive Council. [31]

Following a review of constitutional law, a new Constitution Act, replacing the 1852 Imperial statute, was passed in 1986 and came into force from 1 January 1987. Section 6 of the new Constitution Act specified that members of the Executive Council had to be members of Parliament, but only after a period of 40 days. [32] At the same time, an amendment to the Letters Patent 1983 was signed off. Clause VIII of the Letters Patent, on the composition of the Executive Council, amended the Letters Patent 1983 from 1 January 1987 to align with the provisions of the new Constitution Act. [33] [34] The 1987 amendment was recommended to the Queen by then Prime Minister David Lange. [34]

2006

In 2006 a further set of amendments to the Letters Patent were made. [35] The first amendment reflected the recent creation of the Supreme Court of New Zealand: Clause XII specifies that, in the absence of the governor-general, if a chief justice of New Zealand is not available to become the administrator of the Government then the position falls to the "next most senior Judge of the New Zealand judiciary" (before the clause referred to the president of the Court of Appeal of New Zealand). There was also a second amendment: Clause XV, requiring the governor-general to have the permission of the monarch to leave New Zealand, was revoked entirely. [36] This recognised the increasing number of times the governor-general was travelling overseas to represent New Zealand. [37] The 2006 amendments were recommended to the Queen by then Prime Minister Helen Clark. [35]

See also

Related Research Articles

<span class="mw-page-title-main">Governor-General of Australia</span> Representative of the monarch of Australia

The governor-general of Australia is the representative of the monarch, currently King Charles III, in Australia. The governor-general is appointed by the monarch on the recommendation of the prime minister. The governor-general has formal presidency over the Federal Executive Council and is commander-in-chief of the Australian Defence Force. The functions of the governor-general include appointing ministers, judges, and ambassadors; giving royal assent to legislation passed by parliament; issuing writs for election; and bestowing Australian honours.

<span class="mw-page-title-main">Prime Minister of New Zealand</span> Head of government of New Zealand

The prime minister of New Zealand is the head of government of New Zealand. The incumbent prime minister, Chris Hipkins, leader of the New Zealand Labour Party, took office on 25 January 2023.

In a parliamentary or semi-presidential system of government, a reserve power, also known as discretionary power, is a power that may be exercised by the head of state without the approval of another branch or part of the government. Unlike in a presidential system of government, the head of state is generally constrained by the cabinet or the legislature in a parliamentary system, and most reserve powers are usable only in certain exceptional circumstances.

<span class="mw-page-title-main">Commonwealth realm</span> Sovereign state headed by King Charles III

A Commonwealth realm is a sovereign state that has Charles III as its monarch and head of state. Charles succeeded his mother, Elizabeth II, as monarch of the Commonwealth realms immediately upon her death on 8 September 2022. All the realms are equal with and independent of the others, though one person, resident in the United Kingdom, acts as monarch of each.

<span class="mw-page-title-main">Letters patent</span> Type of published legal instrument

Letters patent are a type of legal instrument in the form of a published written order issued by a monarch, president or other head of state, generally granting an office, right, monopoly, title or status to a person or corporation. Letters patent can be used for the creation of corporations or government offices, or for granting city status or a coat of arms. Letters patent are issued for the appointment of representatives of the Crown, such as governors and governors-general of Commonwealth realms, as well as appointing a Royal Commission. In the United Kingdom, they are also issued for the creation of peers of the realm.

<span class="mw-page-title-main">Executive Council of New Zealand</span>

The Executive Council of New Zealand is the full group of "responsible advisers" to the governor-general, who advise on state and constitutional affairs. All government ministers must be appointed as executive councillors before they are appointed as ministers; therefore all members of Cabinet are also executive councillors. The governor-general signs a warrant of appointment for each member of the Executive Council, and separate warrants for each ministerial portfolio.

<span class="mw-page-title-main">Dominion of New Zealand</span> Period of New Zealands history from 1907 to 1947

The Dominion of New Zealand was the historical successor to the Colony of New Zealand. It was a constitutional monarchy with a high level of self-government within the British Empire.

<span class="mw-page-title-main">Monarchy of New Zealand</span> Function and history of the New Zealand monarchy

The monarchy of New Zealand is the constitutional system of government in which a hereditary monarch is the sovereign and head of state of New Zealand. The current monarch, King Charles III, acceded to the throne following the death of his mother, Queen Elizabeth II, on 8 September 2022 in the United Kingdom. The King's elder son, William, Prince of Wales, is the heir apparent.

<span class="mw-page-title-main">Republicanism in New Zealand</span> Political movement in New Zealand

Republicanism in New Zealand is the political position that New Zealand's system of government should be changed from a constitutional monarchy to a republic.

<span class="mw-page-title-main">Realm of New Zealand</span> Entire area (or realm) in which the King of New Zealand is head of state

The Realm of New Zealand consists of the entire area in which the monarch of New Zealand functions as head of state. The realm is not a federation; it is a collection of states and territories united under its monarch. New Zealand is an independent and sovereign state. It has one Antarctic territorial claim, one dependent territory (Tokelau), and two associated states. The Realm of New Zealand encompasses the three autonomous jurisdictions of New Zealand, the Cook Islands, and Niue.

<span class="mw-page-title-main">Constitution of New Zealand</span> Uncodified national constitution

The constitution of New Zealand is the sum of laws and principles that determine the political governance of New Zealand. Unlike many other nations, New Zealand has no single constitutional document. It is an uncodified constitution, sometimes referred to as an "unwritten constitution", although the New Zealand constitution is in fact an amalgamation of written and unwritten sources. The Constitution Act 1986 has a central role, alongside a collection of other statutes, orders in Council, letters patent, decisions of the courts, principles of the Treaty of Waitangi, and unwritten traditions and conventions. There is no technical difference between ordinary statutes and law considered "constitutional law"; no law is accorded higher status. In most cases the New Zealand Parliament can perform "constitutional reform" simply by passing acts of Parliament, and thus has the power to change or abolish elements of the constitution. There are some exceptions to this though – the Electoral Act 1993 requires certain provisions can only be amended following a referendum.

<span class="mw-page-title-main">Governor-General of New Zealand</span> Representative of the monarch of New Zealand

The governor-general of New Zealand is the viceregal representative of the monarch of New Zealand, currently King Charles III. As the King is concurrently the monarch of 14 other Commonwealth realms and lives in the United Kingdom, he, on the advice of his New Zealand prime minister, appoints a governor-general to carry out his constitutional and ceremonial duties within the Realm of New Zealand.

<span class="mw-page-title-main">Monarchy of Australia</span> Australian monarchy

The monarchy of Australia is Australia's form of government, embodied by the Australian sovereign and head of state. The Australian monarchy is a constitutional one, modelled on the Westminster system of parliamentary government, while incorporating features unique to the constitution of Australia.

<span class="mw-page-title-main">Monarchy in the Cook Islands</span>

The Cook Islands are a constitutional monarchy within the Realm of New Zealand. Under the Cook Islands Constitution, the Sovereign in Right of New Zealand has been Head of State of the Cook Islands since 4 August 1965. The Sovereign is represented by the King's Representative; as such, the King is the de jure head of state, holding several powers that are his alone, while the King's Representative is sometimes referred to as the de facto head of state. The viceregal position is currently held by Tom Marsters.

<span class="mw-page-title-main">New Zealand Government</span> Central government of New Zealand

The New Zealand Government is the central government through which political authority is exercised in New Zealand. As in most other parliamentary democracies, the term "Government" refers chiefly to the executive branch, and more specifically to the collective ministry directing the executive. Based on the principle of responsible government, it operates within the framework that "the [King] reigns, but the government rules, so long as it has the support of the House of Representatives". The Cabinet Manual describes the main laws, rules and conventions affecting the conduct and operation of the Government.

<span class="mw-page-title-main">Monarchy of Grenada</span> Constitutional monarchy as a system of government in Grenada

The monarchy of Grenada is a system of government in which a hereditary monarch is the sovereign and head of state of Grenada. The current Grenadian monarch and head of state, since 8 September 2022, is King Charles III. As sovereign, he is the personal embodiment of the Grenadian Crown. Although the person of the sovereign is equally shared with 14 other independent countries within the Commonwealth of Nations, each country's monarchy is separate and legally distinct. As a result, the current monarch is officially titled King of Grenada and, in this capacity, he and other members of the royal family undertake public and private functions domestically and abroad as representatives of Grenada. However, the King is the only member of the royal family with any constitutional role.

<span class="mw-page-title-main">Monarchy of Saint Kitts and Nevis</span> Constitutional monarchy as a system of government in Saint Kitts and Nevis

The monarchy of Saint Kitts and Nevis is a system of government in which a hereditary monarch is the sovereign and head of state of Saint Kitts and Nevis. The current monarch of Saint Kitts and Nevis, since 8 September 2022, is King Charles III. As sovereign, he is the personal embodiment of the Crown of Saint Kitts and Nevis. Although the person of the sovereign is equally shared with 14 other independent countries within the Commonwealth of Nations, each country's monarchy is separate and legally distinct. As a result, the current monarch is officially titled King of Saint Christopher and Nevis and, in this capacity, he and other members of the royal family undertake public and private functions domestically and abroad as representatives of Saint Kitts and Nevis. However, the King is the only member of the royal family with any constitutional role.

The royal prerogative is a body of customary authority, privilege, and immunity recognized in common law as belonging to the sovereign, and which have become widely vested in the government. It is the means by which some of the executive powers of government, possessed by and vested in a monarch with regard to the process of governance of the state, are carried out.

<span class="mw-page-title-main">Alison Quentin-Baxter</span> New Zealand constitutional lawyer

Dame Alison Burns Quentin-Baxter is a retired New Zealand constitutional lawyer. She advised a number of small island states on the drafting of their constitutional documents.

<span class="mw-page-title-main">Defence Act 1990</span> Act of Parliament in New Zealand

The Defence Act 1990 is an Act of Parliament in New Zealand which establishes the New Zealand Defence Force (NZDF) and defines the respective roles of, and relationships between, the minister of defence, the chief of defence force and the secretary of defence.

References

Citations

  1. 1 2 Gavin McLean (20 June 2012). "Letters patent, 1983". Te Ara: The Encyclopedia of New Zealand . Retrieved 4 October 2019.
  2. 1 2 3 4 5 6 7 Quentin-Baxter & McLean 2017, p. 99.
  3. ↑ Quentin-Baxter & McLean 2017, p. 96.
  4. 1 2 Quentin-Baxter & McLean 2017, p. 98.
  5. 1 2 McLean 2006, p. 288.
  6. ↑ McLean 2006, p. 277.
  7. ↑ Quentin-Baxter & McLean 2017, p. 97.
  8. ↑ Chris Ryan (20 August 2015). "Dame Alison Quentin-Baxter looks back". New Zealand Law Society . Retrieved 4 October 2019.
  9. ↑ "Making Constitutions, from the perspective of a constitutional adviser". Victoria University of Wellington Law Review. 2002. Retrieved 4 October 2019.
  10. 1 2 "History of the Governor-General Page 7 – Patriated". Ministry for Culture and Heritage. 14 July 2014. Retrieved 4 October 2019.
  11. ↑ McLean 2006, p. 289.
  12. 1 2 3 McLean 2006, p. 290.
  13. 1 2 Quentin-Baxter & McLean 2017, p. 100.
  14. ↑ Letters Patent 1983, Clause XIX.
  15. ↑ Quentin-Baxter & McLean 2017, p. 101.
  16. ↑ Tony Angelo (2007). "The Letters Patent". New Zealand Law Journal. 5: 6.
  17. 1 2 Letters Patent 1983, Clause I.
  18. ↑ Andrew Townend (2003). "The Strange Death of the Realm of New Zealand: The Implications of a New Zealand Republic for the Cook Islands and Niue" (34(3) ed.). Victoria University of Wellington Law Review.
  19. ↑ Quentin-Baxter & McLean 2017, p. 117.
  20. ↑ Letters Patent 1983, Clause II.
  21. 1 2 Quentin-Baxter & McLean 2017, p. 118.
  22. ↑ Quentin-Baxter & McLean 2017, p. 124.
  23. ↑ Quentin-Baxter & McLean 2017, p. 132.
  24. ↑ Letters Patent 1983, Clause IV(b).
  25. 1 2 Quentin-Baxter & McLean 2017, p. 143.
  26. ↑ Letters Patent 1983, Clause VII-X.
  27. 1 2 Quentin-Baxter & McLean 2017, p. 160.
  28. ↑ Letters Patent 1983, Clause XI.
  29. ↑ "Royal prerogative of mercy - miscarriages of justice" (PDF). Government House. December 2009. Retrieved 12 October 2019.
  30. ↑ "McLay: My plan to replace Muldoon". New Zealand Herald . 28 August 2012. Retrieved 4 October 2019.
  31. ↑ McLean 2006, p. 291.
  32. ↑ "Constitution Act 1986, Part 2 - The Executive". Parliamentary Counsel Office. 1986. Retrieved 4 October 2019.
  33. ↑ Letters Patent 1983, Clause VIII.
  34. 1 2 "Letters Patent Amending Letters Patent Constituting the Office of Governor-General of New Zealand" (PDF). New Zealand Legal Information Institute. 15 December 1986. Retrieved 4 October 2019.
  35. 1 2 "Letters Patent (2006) Amending Letters Patent Constituting the Office of Governor-General of New Zealand". Parliamentary Counsel Office. 2006. Retrieved 4 October 2019.
  36. ↑ Letters Patent 1983, Clause XV.
  37. ↑ Yang, Unity Elias (2014). Last Great Queen?: Elizabeth II, Mother of leadership, Seen from the crowd. AuthorHouse. p. 189. ISBN   9781491895160.

Bibliography

This page is based on this Wikipedia article
Text is available under the CC BY-SA 4.0 license; additional terms may apply.
Images, videos and audio are available under their respective licenses.