The Governor-General is the officer appointed by the Crown to act as its representative in the Government and administration of New Zealand. The office, under its present title, is, strictly speaking, a comparatively recent event in the history of New Zealand, although its origin is to be traced from 1839. In that year Britain officially extended its administration over New Zealand by proclaiming it part of the Colony of New South Wales, and it provided that the officer to be responsible to the Crown for that purpose was to be the Governor of New South Wales who was to have a deputy stationed in New Zealand, to be known as the Lieutenant-Governor of that part of the colony of New South Wales. In the following year, however, New Zealand was created a separate colony quite distinct from the Australian colonies, and the Crown's representative stationed in New Zealand was henceforth given the style of Governor of these islands. Such remained the position until this century when the colony attained the status of a Dominion (1907), the office of Governor being raised in status to that of Governor-General in 1917.
The appointment of the Governor-General is made formally by the Crown. At first the Crown acted solely upon the advice of its Ministers and the Colonial Office in London, but by this century the practice had developed of permitting New Zealand Ministers to make a selection from a small number of names – usually three – which had been prepared in London by the Dominions Office, and the person so selected would then be recommended to the Crown by the British Ministers. Since the Imperial Conference of 1930, however, the preliminary selection, the final choice, and the recommendation to the Crown, have been made by New Zealand Ministers, usually after informal discussions with the Queen, the current Governor-General, the British Prime Minister, the Secretary of State for Commonwealth Relations, and any other British Ministers and officials who might have some personal knowledge of or acquaintance with the persons whom the New Zealand Ministers are considering.
By the general law both of England and of New Zealand a Governor-General is legally in a position different from that of a Viceroy, so far as his legal authority and functions are concerned, in that his authority derives exclusively from the express or implied terms of the Commission that is issued to him by the Sovereign. Whilst the Courts have held that the office of Viceroy brings with it automatically the powers and prerogatives of the Crown, no such amplitude of power attaches automatically to the office of Governor-General. That officer has only so much authority, or so little, as the terms of his Commission from the Crown allow, and if he does not act in accordance with its terms his actions will be without authority and may well bring him within the jurisdiction of the Courts both of England and of the Dominion. In fact, so far as New Zealand is concerned, there is no recorded instance of a Governor or Governor-General having exceeded the authority of his Commission. To determine the legal authority and the functions of the Governor-General it is therefore necessary to turn to the terms of his Commission. The Commission which is issued nowadays to a person appointed by the Crown as Governor-General of New Zealand is fairly standardised, with a general form of authority to exercise the powers and rights of the office in accordance with the provisions of certain Letters Patent of 1917, together with any Instructions and Orders from the Crown. The Letters Patent is a document in which the Crown permanently established the office of Governor-General for the Dominion of New Zealand, and specifically authorised the holder of that office for the time being to appoint the Executive Council for New Zealand; summon, prorogue or dissolve the Legislature; appoint, suspend or remove Judges, Commissioners and other Ministers and officers; act as Commander-in-Chief of the armed forces of the Dominion; make grants of land; hold the public seal of the Dominion; and carry out such other functions as were prescribed by Instructions from the Crown, or by “such Laws as are now or shall hereafter be in force in New Zealand”. Formal Instructions were issued in 1917. They are of a permanent nature also, applying generally to all holders of the office; they do not add any further functions, merely regulating the manner in which some of the existing functions should be exercised. No further formal or informal Instructions have been issued since that date.
The “Laws … in force in New Zealand” have, however, added considerably to the functions of the Governor-General. Many have merely empowered the Governor-General to do in particular cases what the Letters Patent have authorised him to do in general, e.g., appointments of officials, grants of land. Legislation has, however, conferred at least two additional functions on the Governor-General, and these functions are nowadays amongst the most important of that office: first, the power given by the New Zealand Constitution Act 1852 (U.K.) to grant consent to Bills passed by the Legislature; and, secondly, the power conferred by most principal statutes, nowadays, to issue delegated legislation, in the form of Proclamations, Regulations, Orders-in-Council, to implement the purpose and policy of the statute. In 1964 the Governor-General assented to 152 statutes of a public, private, and local nature, and issued some 221 forms of delegated legislation, all affecting various facets of life in New Zealand.
Three fields in which neither the Letters Patent nor the laws in force in New Zealand have ever authorised the Governor-General to exercise any legal functions are the fields of external affairs, religion, and social customs. Whilst the Governor-General does participate in all three fields, the functions he exercises have no compelling legal sanction and are really functions of a social nature only. Thus he receives and entertains diplomatic representatives, distinguished visitors to the Dominion, and New Zealanders; accepts Letters of Credence from newly appointed heads of diplomatic missions for forwarding to the Crown; attends himself as a guest at religious services and other more important functions in the various facets of community life; and, if requested, bestows his patronage upon worthy organisations.
One important function which the Governor-General once carried out was to act not only as representative of the British Crown but also as the agent in New Zealand for the British Government. Since 1939, however, High Commissioners have been appointed in the United Kingdom and New Zealand by the New Zealand and the British Governments respectively to act as channels of communication between the two Governments, so that now the Governor-General, although he acts as the channel of communication between New Zealand and the Crown, does not act as agent for, or as channel of communication with, the British Government. With this important exception it would be true to say that the functions and authority formally conferred upon the Governor-General have continued to increase over the years. Nevertheless, at the same time there has been a concomitant restriction not upon the scope, but upon the manner of exercise of these functions. Consequently, the personal discretion of the Governor-General has been almost entirely removed by the joint interaction of express legal provisions and conventional practice.
The function of appointing the Executive Council is restricted by the Civil List Act 1950 which requires that only members of the House of Representatives may be appointed to the Council or be Ministers of the Crown, although the actual choice as to which members should be so appointed is not touched by that statute. The function of summoning, proroguing, and dissolving the House of Representatives is now regulated by the Electoral Act 1956, although the decision as to when such action should be taken is still theoretically with the Governor-General. Appointments to office are required by the Instructions of 1917 to be, as a rule, only during pleasure and not for a fixed term, and the procedure for granting land is set out in the Land Transfer Act 1952; but in both cases the Governor-General is not restricted as to whom he should grant appointments or land. The Instructions of 1917, however, contain a general provision that the Governor-General is to be “guided by the advice of his Executive Council” in all matters, although he may refuse to follow that advice provided he informs the Crown promptly of this.
It can be seen that whilst the legal provisions discussed above do regulate the manner in which the Governor-General may exercise his functions they still do leave considerable areas of discretion with him. These areas of nominal discretion have now been largely removed by conventional practice accepted and adhered to by the Crown and Governors-General. Thus it has been an accepted convention since 1856 that the Governor-General appoints as members of the Executive Council and as Ministers only those persons who are proposed to him by the acknowledged leader of the majority party in the House of Representatives; it is only if there is no party with a clear majority in the House, or if it has no acknowledged leader, that there is now any room for personal choice on the part of the Governor-General. Under the present circumstances of two-party government and selection of the party leader by caucus, the opportunity for this personal discretion does not arise, and has not arisen since 1928.
It is also an accepted convention that the Governor-General accepts and acts upon the advice of his Ministers in all matters, unless he has substantial reasons for knowing that the advice is not in accord with the majority of the House of Representatives or of the electors. At one time the Governor was loath to accept advice that might be prejudicial to British interests, but, since the Imperial Conference of 1926 at least, it has been accepted that the Governor-General always acts upon the advice of his Ministers except in the one case mentioned above. Since then, there has been no recorded instance of the Governor-General having specifically rejected the advice of his Ministers.
Even with respect to functions of an extra-legal and social nature, a conventional practice has been built up over the years, not so much, however, upon the advice of Ministers as upon the advice of the Governor-General's official staff. In these matters, of course, the Governor-General is freer to indulge his own judgments and tastes more extensively, but there are certain activities in which it is the practice for Governors-General to show their interest by their attendance or, in the case of certain national organisations, by accepting, when invited to do so, the office of patron.
It will be observed that, although the functions of the Governor-General have formally increased in scope, in practice the personal discretion of the Governor-General in respect of these functions has been steadily diminished. At first such restrictions as existed were in the nature of legal ones designed by the British Government in order to enable it to supervise and control the actions of the Governor as its agent; with the passage of years, however, the increasing restrictions arising in particular from conventional practice have had the effect of enabling the exercise of the functions of that office to be controlled and supervised by, and for the benefit of, the leaders of the majority party in the House of Representatives. Thus, although this was not what was originally intended, the Governor-General at the present time bears very much the same relationship to the Government of New Zealand, as does the Crown to the Government of the United Kingdom.
by Donald Edgar Paterson, B.A., LL.M.(N.Z.), LL.M., J.S.D.(YALE), Lecturer in Jurisprudence and Constitutional Law, Victoria University of Wellington.