Letters Patent Constituting the Office of Governor-General of New Zealand
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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 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, titl ...
—essentially an open letter from the monarch (in this case, Queen Elizabeth II) that is a legal instrument—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, vests executive authority in the governor-general, establishes the
Executive Council Executive Council may refer to: Government * Executive Council (Commonwealth countries), a constitutional organ that exercises executive power and advises the governor * Executive Council of Bern, the government of the Swiss canton of Bern * Ex ...
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 and counter-signed by the British
Secretary of State for the Colonies The secretary of state for the colonies or colonial secretary was the Cabinet of the United Kingdom, British Cabinet government minister, minister in charge of managing the United Kingdom's various British Empire, colonial dependencies. Histor ...
, 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 184 ...
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 Colonel Arthur Espie Porritt, Baron Porritt, (10 August 1900 – 1 January 1994) was a New Zealand physician, military surgeon, statesman and athlete. He won a bronze medal at the 1924 Summer Olympics in the 100 m sprint. He served as the ...
, on the advice of Prime Minister Keith Holyoake, 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 Jo ...
(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 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 and the Cook Islands, 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 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 Patriation is the political process that led to full Canadian sovereignty, culminating with the Constitution Act, 1982. The process was necessary because under the Statute of Westminster 1931, with Canada's agreement at the time, the British parl ...
"—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) made under the Royal Prerogative, and are treated as statute law. 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 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 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). This definition of the Realm of New Zealand recognised the new constitutions of the Cook Islands and Niue granted self-government.


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 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 Dame Silvia Rose Cartwright (née Poulter; born 7 November 1943) is a New Zealand jurist who served as the 18th Governor-General of New Zealand, from 2001 to 2006. She was the second woman to hold the office, after Dame Catherine Tizard. Early ...
) 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, 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 (New Zealand), minister of defence, the Chie ...
further defines the role of commander-in-chief. The Letters Patent delegates the sovereign's executive authority 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 le ...
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 powers 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 * Filing ...
).


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. 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, was the replacement of Muldoon as party leader and therefore prime minister by the governor-general, following a vote of no-confidence 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.


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 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. 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.


See also

* Constitution of New Zealand * Letters Patent, 1947 – 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