Public Law Explainer: Who is in charge?

September 28, 2021

Tuesday 28 September 2021 marks the end of Dame Patsy Reddy’s five year role as Governor-General, New Zealand’s Head of State. The next Governor-General, Dame Cindy Kiro, is scheduled to be sworn in on 21 October.

With three weeks until the office is officially filled, who is our Head of State in the meantime?

That position falls to the Chief Justice of New Zealand, Dame Helen Winkelmann.

 What does the Governor-General do?

The Governor-General is an important part of New Zealand’s constitutional structure, and has a number of functions as the Queen’s representative in New Zealand.

One major function of the Governor-General is as Sovereign in Parliament. Parliament is not just our elected representatives to our country’s legislature. All Acts which are passed by the House of Representative must receive royal assent (approval) from the Head of State. The Governor-General gives assent on the Queen’s behalf.

As head of the Executive branch of government, the Governor-General presides over the Executive Council, the Council of all Ministers of the Crown. In the Executive Council, the Governor makes regulations through Orders in Council when advised by Her Majesty’s Ministers.

The Governor-General also may exercise the royal reserve powers, which are legal powers exclusive to the Crown. These include the Prerogative of Mercy, the ability to appoint the Prime Minister and other Ministers of the Crown, and the ability to form and dissolve Parliament.

The Governor-General exercises a diplomatic function with foreign dignitaries. As New Zealand’s head of state, the Governor-General receives visiting heads of state.

 

Head of State when Office of the Governor-General vacant

New Zealand has an unwritten constitution. This means that the entire constitution cannot be found in any one document, and there are long held conventions (practices) which make up the constitutional framework. However, a major part of our constitution is the Constitution Act 1986. This statute sets out the ordinary proceedings on how the branches of Government operate.

Section 3B of the Constitution Act allows for the “Administrator of the Government” to exercise the functions and duties of the Governor-General when that office is vacant or when the Governor-General is unable to perform the role. “Administrator of Government” is not defined by the Constitution Act. This term comes from another part of New Zealand’s constitutional fabric: the Letters Patent.

The Letters Patent is a royal decree from the Queen establishing and authorizing the office and powers of the Governor-General. Clause 12 of the Letters Patent authorises and commands the Chief Justice to act as the Governor-General where the office is vacant.

In the rare event that the Chief Justice is unable to perform this role, clause 12 states the role then goes to the next most senior judge of New Zealand’s judiciary. The line of succession continues down the judiciary’s seniority.

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