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The Letters Patent Constituting the Office of Governor-General of New Zealand is a
royal decree A decree is a legal proclamation, usually issued by a head of state (such as the president of a republic or a monarch), according to certain procedures (usually established in a constitution). It has the force of law. The particular term used for ...
and a part of the uncodified
New Zealand 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 r ...
. Sometimes known as the Letters Patent 1983, the instrument has been amended twice (in 1987 and 2006) since its original issue in 1983. The
letters patent Letters patent ( la, litterae patentes) ( always in the plural) 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, tit ...
—essentially an open letter from the
monarch A monarch is a head of stateWebster's II New College DictionarMonarch Houghton Mifflin. Boston. 2001. p. 707. Life tenure, for life or until abdication, and therefore the head of state of a monarchy. A monarch may exercise the highest authority ...
(in this case, Queen
Elizabeth II Elizabeth II (Elizabeth Alexandra Mary; 21 April 1926 – 8 September 2022) was Queen of the United Kingdom and other Commonwealth realms from 6 February 1952 until her death in 2022. She was queen regnant of 32 sovereign states durin ...
) that is a
legal instrument Legal instrument is a legal term of art that is used for any formally executed written document that can be formally attributed to its author, records and formally expresses a legally enforceable act, process, or contractual duty, obligation, or ...
—constitutes the office of
governor-general Governor-general (plural ''governors-general''), or governor general (plural ''governors general''), is the title of an office-holder. In the context of governors-general and former British colonies, governors-general are appointed as viceroy t ...
as the monarch's representative in the
Realm of New Zealand 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 indep ...
, vests
executive authority The Executive, also referred as the Executive branch or Executive power, is the term commonly used to describe that part of government which enforces the law, and has overall responsibility for the governance of a state. In political systems ba ...
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.


Background

The 1917 Letters Patent was issued by King
George V George V (George Frederick Ernest Albert; 3 June 1865 – 20 January 1936) was King of the United Kingdom and the British Dominions, and Emperor of India, from 6 May 1910 until his death in 1936. Born during the reign of his grandmother ...
and counter-signed by the British
Secretary of State for the Colonies The secretary of state for the colonies or colonial secretary was the British Cabinet minister in charge of managing the United Kingdom's various colonial dependencies. History The position was first created in 1768 to deal with the increas ...
, Sir George Shuster, and sealed by the Great Seal of the United Kingdom. The 1917 Letters Patent were issued following the proclamation of the
Dominion of New Zealand 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. New Zealand became a separate British Crown colony in 18 ...
in 1907, renaming the office of "governor" to "governor-general". 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 A prime minister, premier or chief of cabinet is the head of the cabinet and the leader of the ministers in the executive branch of government, often in a parliamentary or semi-presidential system. Under those systems, a prime minister is ...
Keith Holyoake Sir Keith Jacka Holyoake, (; 11 February 1904 – 8 December 1983) was the 26th prime minister of New Zealand, serving for a brief period in 1957 and then from 1960 to 1972, and also the 13th governor-general of New Zealand, serving from 197 ...
, that the New Zealand Government decided that the 1917 Letters Patent needed updating. Following
1975 Australian constitutional crisis The 1975 Australian constitutional crisis, also known simply as the Dismissal, culminated on 11 November 1975 with the dismissal from office of the prime minister, Gough Whitlam of the Australian Labor Party (ALP), by Governor-General Sir ...
(where a governor-general dismissed a serving prime minister), greater urgency was given to reviewing the governor-general's powers. In 1976, the Prime Minister's Department asked lawyer (now Dame)
Alison Quentin-Baxter Dame Alison Burns Quentin-Baxter (''née'' Souter, born 28 December 1929) is a retired New Zealand constitutional lawyer. She advised a number of small island states on the drafting of their constitutional documents. Early life Quentin-Baxte ...
and her husband Professor Robert Quentin-Baxter to review the Letters Patent 1917. In anticipation of new letters patent being issued,
Parliament In modern politics, and history, a parliament is a legislative body of government. Generally, a modern parliament has three functions: representing the electorate, making laws, and overseeing the government via hearings and inquiries. Th ...
passed the Seal of New Zealand Act 1977. The review of the 1917 Letters Patent was completed in 1980. The Cabinet Office published the review, recommending new letters patent be issued. Following the report, draft Letters Patent were circulated with the governments of
Niue Niue (, ; niu, Niuē) is an island country in the South Pacific Ocean, northeast of New Zealand. Niue's land area is about and its population, predominantly Polynesian, was about 1,600 in 2016. Niue is located in a triangle between T ...
and the
Cook Islands ) , image_map = Cook Islands on the globe (small islands magnified) (Polynesia centered).svg , capital = Avarua , coordinates = , largest_city = Avarua , official_languages = , lan ...
, who gave their informal approval. Prime Minister
Robert Muldoon Sir Robert David Muldoon (; 25 September 19215 August 1992) was a New Zealand politician who served as the 31st Prime Minister of New Zealand, from 1975 to 1984, while leader of the National Party. Serving as a corporal and sergeant in th ...
wanted the Queen to sign the Letters Patent during her 1981 Royal Tour of New Zealand. 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 general election (Labour's front bench, including party leader
Bill Rowling Sir Wallace Edward Rowling (; 15 November 1927 – 31 October 1995), commonly known as Bill Rowling, was a New Zealand politician who was the 30th prime minister of New Zealand from 1974 to 1975. He held office as the parliamentary leader of t ...
,
David Lange David Russell Lange ( ; 4 August 1942 – 13 August 2005) was a New Zealand politician who served as the 32nd prime minister of New Zealand from 1984 to 1989. Lange was born and brought up in Otahuhu, the son of a medical doctor. He became ...
and Geoffrey Palmer, all supported the Queen signing during the Royal Tour). It was not until 26 September 1983 that an Order-in-Council was issued requesting the Queen's signature. The Queen signed the Letters Patent on 28 October 1983, and soon after the new letters patent were counter-signed by Prime Minister Robert Muldoon, and sealed by the Seal of New Zealand. 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. The new Letters Patent came into force on 1 November 1983.


Style

The Letters Patent are written as though they are an open letter from the Queen, although they are in fact a legal instrument (specifically, a
royal decree A decree is a legal proclamation, usually issued by a head of state (such as the president of a republic or a monarch), according to certain procedures (usually established in a constitution). It has the force of law. The particular term used for ...
) made under the
Royal Prerogative The royal prerogative is a body of customary authority, privilege and immunity, recognized in common law and, sometimes, in civil law jurisdictions possessing a monarchy, as belonging to the sovereign and which have become widely vested in th ...
, and are treated as statute law. The 1980 review of the 1917 Letters Patent drew on the experience from the Canadian
Letters Patent, 1947 The ''Letters Patent, 1947'' (more formally, the Letters Patent Constituting the Office of Governor General and Commander-in-Chief of Canada) are letters patent signed by George VI as King of Canada which reconstituted the office of Governor Ge ...
created after Canada adopted the
Statute of Westminster 1931 The Statute of Westminster 1931 is an act of the Parliament of the United Kingdom that sets the basis for the relationship between the Commonwealth realms and the Crown. Passed on 11 December 1931, the statute increased the sovereignty of the ...
. The style was criticised as "quaint, and certainly belonging to a century other than the 21st." Nonetheless the style is consistent with patents issued for other purposes in the United Kingdom, and those used to erect vice-regal offices in other parts of the former British Empire.


Realm of New Zealand

Clause I of the Letters Patent defines the
Realm of New Zealand 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 indep ...
as consisting of New Zealand, the Cook Islands, Niue,
Tokelau Tokelau (; ; known previously as the Union Islands, and, until 1976, known officially as the Tokelau Islands) is a dependent territory of New Zealand in the southern Pacific Ocean. It consists of three tropical coral atolls: Atafu, Nukunonu, a ...
and the
Ross Dependency The Ross Dependency is a region of Antarctica defined by a circular sector, sector originating at the South Pole, passing along longitudes 160th meridian east, 160° east to 150th meridian west, 150° west, and terminating at latitude 60th para ...
. (The governor-general of New Zealand is also separately titled the Governor of the Ross Dependency). This definition of the Realm of New Zealand recognised the new constitutions of the Cook Islands and Niue granted
self-government __NOTOC__ Self-governance, self-government, or self-rule is the ability of a person or group to exercise all necessary functions of regulation without intervention from an external authority. It may refer to personal conduct or to any form of ...
.


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". The full title is rarely used, and usually "Governor-General" is used because the commander-in-chief role is largely ceremonial also. Clause II of the Letters Patent states that the governor-general is appointed by the
sovereign ''Sovereign'' is a title which can be applied to the highest leader in various categories. The word is borrowed from Old French , which is ultimately derived from the Latin , meaning 'above'. The roles of a sovereign vary from monarch, ruler or ...
, and serves "... during Our pleasure." Clause II does not spell out that the sovereign makes the appointment on the sole
advice Advice (noun) or advise (verb) may refer to: * Advice (opinion), an opinion or recommendation offered as a guide to action, conduct * Advice (constitutional law) a frequently binding instruction issued to a constitutional office-holder * Advice (p ...
of the New Zealand prime minister, 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, 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. The governor-general is commander-in-chief of the
New Zealand Defence Force The New Zealand Defence Force (NZDF; mi, Te Ope Kātua o Aotearoa, "Line of Defence of New Zealand") are the armed forces of New Zealand. The NZDF is responsible for the protection of the national security of New Zealand and her realm, prom ...
, but the Letters Patent does not further elaborate on this. The
Defence Act 1990 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 secreta ...
further defines the role of commander-in-chief. The Letters Patent delegates the sovereign's
executive authority The Executive, also referred as the Executive branch or Executive power, is the term commonly used to describe that part of government which enforces the law, and has overall responsibility for the governance of a state. In political systems ba ...
in the governor-general, and adds: This is a requirement that the governor-general act within
statute A statute is a formal written enactment of a legislative authority that governs the legal entities of a city, state, or country by way of consent. Typically, statutes command or prohibit something, or declare policy. Statutes are rules made by ...
law in force.


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. 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. Following a
general election A general election is a political voting election where generally all or most members of a given political body are chosen. These are usually held for a nation, state, or territory's primary legislative body, and are different from by-elections ( ...
, the governor-general exercises his or her
reserve power 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 ...
s to appoint a party leader as a member of the Executive Council and prime minister. Then, on the prime minister's advice, the governor-general appoints the remaining members of the Executive Council (whether inside or outside
Cabinet Cabinet or The Cabinet may refer to: Furniture * Cabinetry, a box-shaped piece of furniture with doors and/or drawers * Display cabinet, a piece of furniture with one or more transparent glass sheets or transparent polycarbonate sheets * Filin ...
).


Royal prerogative of mercy

Clause XI of the Letters Patent defines the exercise of prerogative of mercy in New Zealand. 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 A justice ministry, ministry of justice, or department of justice is a ministry or other government agency in charge of the administration of justice. The ministry or department is often headed by a minister of justice (minister for justice in a ...
. The governor-general has the power to grant a pardon, reduce a sentence, or refer a case back to the courts for reconsideration.


Amendments


1987

Following the 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 Sir James Kenneth McLay (born 21 February 1945) is a New Zealand diplomat and former politician. He served as the ninth deputy prime minister of New Zealand from 15 March to 26 July 1984. McLay was also Leader of the National Party and Leader ...
, was the replacement of Muldoon as party leader and therefore prime minister by the governor-general, following a
vote of no-confidence A motion of no confidence, also variously called a vote of no confidence, no-confidence motion, motion of confidence, or vote of confidence, is a statement or vote about whether a person in a position of responsibility like in government or mana ...
by caucus. 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. 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. 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. The 1987 amendment was recommended to the Queen by then Prime Minister
David Lange David Russell Lange ( ; 4 August 1942 – 13 August 2005) was a New Zealand politician who served as the 32nd prime minister of New Zealand from 1984 to 1989. Lange was born and brought up in Otahuhu, the son of a medical doctor. He became ...
.


2006

In 2006 a further set of amendments to the Letters Patent were made. The first amendment reflected the recent creation of the
Supreme Court of New Zealand The Supreme Court of New Zealand ( mi, Te Kōti Mana Nui, lit=Court of Great Mana) is the highest court and the court of last resort of New Zealand. It formally came into being on 1 January 2004 and sat for the first time on 1 July 2004. It re ...
: Clause XII specifies that, in the absence of the governor-general, if a
chief justice of New Zealand The chief justice of New Zealand ( mi, Te Kaiwhakawā Tumuaki o Aotearoa) is the head of the New Zealand judiciary, and presides over the Supreme Court of New Zealand. The chief justice of New Zealand is also the chief justice of Tokelau. Befo ...
is not available to become the
administrator of the Government An administrator (administrator of the government or officer administering the government) in the constitutional practice of some countries in the Commonwealth is a person who fulfils a role similar to that of a governor or a governor-general. ...
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 The Court of Appeal of New Zealand is the principal intermediate appellate court of New Zealand. It is also the final appellate court for a number of matters. In practice, most appeals are resolved at this intermediate appellate level, rather t ...
). 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. This recognised the increasing number of times the governor-general was travelling overseas to represent New Zealand. The 2006 amendments were recommended to the Queen by then Prime Minister
Helen Clark Helen Elizabeth Clark (born 26 February 1950) is a New Zealand politician who served as the 37th prime minister of New Zealand from 1999 to 2008, and was the administrator of the United Nations Development Programme from 2009 to 2017. She was ...
.


See also

* Constitution of New Zealand *
Letters Patent, 1947 The ''Letters Patent, 1947'' (more formally, the Letters Patent Constituting the Office of Governor General and Commander-in-Chief of Canada) are letters patent signed by George VI as King of Canada which reconstituted the office of Governor Ge ...
– Canadian equivalent that was the basis for the New Zealand letters patent


References


Citations


Bibliography

* * * *


External links


Department of the Prime Minister and Cabinet - Cabinet Manual - Letters Patent 1983
{{Law of New Zealand Constitution of New Zealand Law of New Zealand