The crown, the Governor-General and the Constitution

Abstract

The status of New Zealand under the Crown has evolved from colony to dominion and now to independent kingdom. In the process the expansion of the capacity and powers of the New Zealand Executive has seen the development of dichotomised channels for the submission of advice to the Crown for the exercise of the Royal Prerogatives. The Governor-General has exercised the prerogatives delegated in the 1917 Letters Patent constituting his office - essentially the prerogative powers pertinent to the internal government of the country - while the submission of advice for the exercise of the non-delegated prerogatives - viz: the royal prerogative in the field of foreign affairs, the war prerogative, the honours prerogative, the power to issue seals and the power to regulate the Office of Governor-General - has gone from the Crown's New Zealand advisers to the Sovereign. Questions have arisen, however, as to the Governor-General's competence to exercise the non-delegated prerogatives on the Queen's behalf. This question is generally discussed in the context of the current constitutional status of New Zealand and the inappropriateness of the 1917 Letters Patent and the Royal Instructions of the same year. Both Instruments are in dire need of revision. The position of the Governor-General himself has also fundamentally altered. No longer the representative of, and appointed on the advice of the British Government, he remains as the resident head of the executive: the representative of the Queen in her capacity of Sovereign of New Zealand. As such he is appointed by the Queen on the advice of her New Zealand Ministers, on whose advice he may also be removed from office. The prospect of an insecure tenure is prejudicial to the position of the Crown and the Constitution, as it stands as threatening both the influence of the Crown in affairs of State and the power of the Crown to call forth the reserve powers (to dismiss ministers, refuse requests for dissolutions of Parliament and refuse the royal assent) in emergencies when the constitution is threatened by the action of ministers. A security of tenure for the Governor-General will in large measure reduce these dangers. It is likely that, notwithstanding his changed status, the law will continue to cast the Governor-General in the role of a special agent of the Crown who is not competent to exercise the full sovereign authority of the country. It may be regarded as unsatisfactory that some executive acts are not exercised by the Crown from within New Zealand and it might be that all royal powers in respect to New Zealand should be exercised within the Country. New Zealand's status can now be seen as justifying the appointment of a Representative of the Crown who enjoys full viceregal rank and who is to exercise the entire Sovereign authority during the Monarch's absence from New Zealand.