Chapter 9 Communications with the Crown

The Sovereign and the House of Representatives together constitute the Parliament of New Zealand. There are, however, only a few formal occasions when these constituent elements of Parliament actually meet. Under a system of responsible government, Ministers of the Crown are members of Parliament. They are therefore present in the House to communicate the Crown’s desires to the legislature and to relay the legislature’s views to the Crown. Nevertheless, there are formal methods by which the Crown communicates with the House and the House with the Crown. These formal methods of communication are respectively a message, by means of which the Crown conveys its views to the House, and an address, by which the House expresses its opinions to the Crown.

Direct interaction Direct interaction between the Sovereign or the Sovereign’s representatives and the House takes place at the opening of a new Parliament or a new session of Parliament. The Governor-General does not attend the first meeting of a new Parliament in person but empowers Royal commissioners (who are usually senior judges) to attend on the Governor-General’s behalf and formally declare the opening of Parliament to the assembled members. After the House has elected a Speaker, its members present their choice to the Governor-General at Government House for confirmation. The Governor-General also meets with members in the former Legislative Council Chamber at Parliament House to declare the reasons for the summoning of Parliament by delivering the Speech from the Throne. If there is more than one session of Parliament, the Governor-General will deliver another Speech from the Throne to members. (See Chapter 12.) During the 19th century, the Governor-General met with members in Parliament House at the end of each session in a prorogation ceremony, which involved giving the Royal assent to legislation and then delivering a speech summing up the work of the session. In 2014, the Business Committee was empowered to arrange State occasions.1 Such an occasion may involve the Governor-General, for example for the delivery of a special message from the Sovereign.2 A State occasion may provide a mechanism for the Sovereign to speak to the assembled members of the House without the need for Parliament to be prorogued for a State opening. (See Chapter 12.)

1 SO 82(1). 2 Standing Orders Committee Review of Standing Orders (21 July 2014) [2011–2014] AJHR I.18A at 6–7.

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Messages Messages originated as a means for the Sovereign to draw important matters to the attention of Parliament formally, in addition to the matters raised in the Speech from the Throne. The procedure developed from the growing preference for the Sovereign not to be present in person during debates.3 The announcement of a message is now relatively infrequent in New Zealand, and generally serves to convey the Crown’s consent to the passage of Members’, local and private bills that affect the rights or prerogatives of the Crown.4 For many years, the purpose of most messages was to recommend the passing of bills appropriating public money or imposing a charge on the public revenue. However, the requirement for such a recommendation from the Crown was repealed in 2005 in light of the establishment of the financial veto procedure.5 It was formerly the Crown’s practice to promulgate the fact of the Royal assent to a bill by advising the House of it by message. That practice was discontinued in 1985. The Governor-General also formerly had the power to transmit bills directly to the House for its consideration,6 and this power was also exercised by message. This power, last exercised in 1949,7 was repealed in 1986. Other matters that might occasion a direct communication from the Governor-General to the House and thus give rise to the use of a message include, for example, advice of the suspension of a senior official8 or a reply to an address from the House. Obtaining messages It is the Speaker’s duty to ensure that the proper constitutional forms are observed and that no business that requires the consent of the Crown is transacted unless a message is first obtained.9 But the Speaker has neither the obligation nor the power to obtain a message; this power lies with Ministers, who are the Crown’s responsible advisers and on whose advice the Governor-General sends a message to the House. The premature release of a message before its announcement to the House has been held to be a contempt of the House.10 Following consultation with the Parliamentary Counsel Office, the Office of the Clerk advises the Leader of the House of the bills that require the Crown’s consent so that the Government can consider whether it wishes to facilitate the bills’ progress by obtaining messages. In the absence of a message, a Member’s, local or private bill affecting the rights or prerogatives of the Crown cannot be passed.11 Announcement to the House The Speaker announces messages to the House by reading them out.12 This is done at the first opportunity after receipt of the message. The announcement of a message can interrupt a debate but it cannot interrupt a member’s speech.13 When the Speaker announces the receipt of a message from the Governor- General, members must stand in acknowledgement.14 The Speaker then proceeds to read the communication to the House, starting with the Governor-General’s

3 Sir Thomas Erskine May Treatise on the Law, Privileges and Usage of Parliament (9th ed, Butterworths, London, 1883) at 502–505. 4 SO 313; (1926) 209 NZPD 917–918 Statham. 5 Constitution Amendment Act 2005, s 5; Standing Orders Committee Review of Standing Orders (11 December 2003) [2002–2005] AJHR I.18B at 67; Standing Orders Committee Review of Standing Orders (23 June 2005) [2002–2005] AJHR I.18C at 14. 6 New Zealand Constitution Act 1852 (UK), s 55. 7 (18 October 1949) [1949] JHR 240–243. 8 State Sector Act 1988, s 16 (State Services Commissioner and Deputy Commissioner). 9 (1909) 148 NZPD 1452 Guinness. 10 (1955) 307 NZPD 2532–2539. 11 (1930) 225 NZPD 584 Statham; SO 313. 12 SO 167(1). 13 SOs 167(2) and 132(d). 14 SO 167(3).

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name. Members may resume their seats as soon as the Governor-General’s name has been read.15 The original copies of messages are retained by the Clerk among the records of the House. Under current arrangements they are transferred to Archives New Zealand after approximately six years.

Addresses One of the privileges claimed by the Speaker on behalf of the House at the opening of each new Parliament is the right to free access to the Governor-General whenever occasion may require it.16 This is a right of the House in its corporate capacity, led by the Speaker, to address the Governor-General whenever necessary, and this right cannot be asserted by individual members. The privilege is exercised by the presentation of addresses from time to time. An address may be presented to the Crown on any topic on which the House wishes to communicate its views. In the early Parliaments in New Zealand, frequent addresses put before the Governor the House’s arguments on constitutional arrangements and government policy. With the advent of full responsible government, addresses of this kind ceased to be employed, as the Ministers responsible for policy can be addressed directly in the House. However, the House communicates or may communicate with the Crown by a number of other types of addresses. Address in Reply The best-known type of address is the Address in Reply, which is the House’s response to the Speech from the Throne at the beginning of each session of Parliament. The form of the Address in Reply must itself be uncontroversial,17 but it can be the subject of a “no confidence” amendment which, if carried, must be added to the text of the address.18 The last time that a no-confidence amendment was carried was in the Address in Reply debate in 1928.19 The Address in Reply debate is technically about whether an address should be presented to the Governor-General in reply to the Speech from the Throne. It is not about the text of the address. The actual text of the Address in Reply is prepared by the Speaker while the debate is in progress so that (on the assumption that no amendment to it is carried) it can be read to the House and adopted immediately at the conclusion of the debate. Commending appropriations for Offices of Parliament For many years the Address in Reply was the only common form of address made by the House to the Crown. Since 1989, however, addresses have been used to recommend appropriations for Offices of Parliament. In respect of Offices of Parliament (the Auditor-General, the Office of the Ombudsmen, and the Parliamentary Commissioner for the Environment), the House approves Estimates of appropriations before the Government’s Estimates are prepared and presented to the House. The method by which the House expresses its approval of proposed Estimates for the Offices of Parliament is by commending them to the Crown by means of an address. The address goes on to request that the appropriations be included as a vote in an Appropriation Bill for

15 (1991) 521 NZPD 5913 Gerard (Deputy Speaker). 16 SO 23. 17 SO 168(2). 18 SOs 168(2) and 352. 19 (7 December 1928) [1928] 2 JHR 8.

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that year.20 Any alteration to appropriations for an Office of Parliament during the financial year is handled in the same fashion.21 The detailed work of considering appropriations for Offices of Parliament is carried out for the House by the Officers of Parliament Committee.22 Addresses embodying the committee’s recommendations are then adopted by the House. Royal occasions The House adopts addresses from time to time to mark particular Royal occasions. A special address was adopted on the occasion of Her Majesty’s presence in New Zealand in 1990, for example.23 Addresses have also been adopted on the occasion of Royal births and deaths, and on the succession of a new Sovereign. Rather than adopting an address, the House may content itself with passing a congratulatory resolution.24 Parliamentary occasions An address was adopted at the special sitting held on 24 May 2004 to commemorate the 150th anniversary of the first sitting of the House.25 Removal of office-holders The presentation of an address is an essential prerequisite to the removal of certain office-holders. By law it is prescribed that superior court judges and the holders of a number of other important offices, such as the Clerk of the House and Officers of Parliament, can be removed by the Crown only if an address from the House seeking the office-holder’s removal has been presented first. This ensures the office-holder’s formal independence from the Crown, because the Crown cannot of its own volition remove him or her from office. The requirement that the House adopt an address and then present it to the Governor-General for action also ensures that the extreme step of removal is taken only in a case of the utmost gravity. No one has been removed from office under these provisions in New Zealand. (See pp 508–509.) Returns Where the House wishes to obtain papers or documents that are in the Governor- General’s hands, the presentation of an address is the appropriate way to seek them. In practice, however, this method is no longer used, since members can question Ministers directly in the House about documents they wish to obtain. Procedure for adopting an address A motion that an address be presented may be moved after notice of it is given. The terms of the motion for an Address in Reply are specified in the Standing Orders;26 otherwise a form of words appropriate to the subject-matter of the proposed address is devised. Most motions for addresses are proposed by Ministers as Government motions and dealt with as Government orders of the day. The motion for an Address in Reply is deemed to be a Government order of the day.27 Notices of motion for addresses by other members are Members’ orders of the day. Like any Member’s notice of motion, they lapse one week after their first appearance on the Order Paper.28

20 Public Finance Act 1989, s 26E(4). 21 Public Finance Act 1989, s 26E(6). 22 SO 395(1)(a). 23 (14 February 1990) [1990] JHR 10–11. 24 For example: (7 February 2012) [2011–2014] 1 JHR 25 (diamond jubilee of Her Majesty the Queen). 25 (24 May 2004) 617 NZPD 13179–13213. 26 SO 351(1). 27 SO 67. 28 SO 100.

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A motion for an address (other than the Address in Reply) is debatable in the same way as any other motion, with each member allowed to speak for up to 10 minutes. The motion is open to amendment. Preparation of an address The motion for an address asks the House to agree, in principle, to present an address to the Sovereign or the Governor-General. It may describe in detail or only in outline the content of the intended address. But it is not the address itself. The address must still be prepared and endorsed by the House. It is the Speaker’s duty to prepare an address whenever the House has agreed to present one.29 The address as prepared by the Speaker must include any words that the House has indicated it has agreed to in the resolution concerning the address.30 Otherwise, as long as the wording of the address is consistent with the authorising resolution, the terms of the address are for the Speaker to determine. Apart from any words that the House specifically orders to be part of the address, an Address in Reply must not be controversial.31 The chief opportunity for inserting controversial words into an Address in Reply arises on a no confidence amendment. Most other addresses are also framed in non-controversial terms, but they do not have to be—for example, an address for the removal of an office-holder may be highly controversial. Immediately or as soon as possible after a motion for an address has been agreed to, the Speaker reads the address that has been prepared to the House and puts the question for its adoption. There is no amendment or debate on this question.32 Presentation or transmission of an address Addresses are presented or transmitted to the Governor-General by the Speaker on behalf of the House as part of the Speaker’s representational role.33 Strictly it is not necessary for the House to direct the Speaker by motion to present an address, but this may be done. The Address in Reply is always presented by the Speaker in person, with some formality. For this purpose the Speaker goes to Government House, accompanied by the Serjeant-at-Arms, with the Mace, the Clerk, the Deputy Clerk, the mover and seconder of the motion, and any other members who wish to be present. In being presented, an address is read by the Speaker and then handed to the Governor- General, while the mover and seconder of the motion for the address stand at the Speaker’s left hand. The Governor-General then makes a short formal reply to the address. In the case of the presentation of the address adopted by the House to mark the 150th anniversary of the first sitting of the House, the Speaker presented the address at a special function held in the Banquet Hall in the Executive Wing of the Parliament Buildings.34 Personal presentation by the Speaker is the formal way of presenting any address to the Governor-General. However, an address may be transmitted in a less formal way with the Governor-General’s approval.35 For addresses relating to Estimates for Offices of Parliament, less formal presentation has been agreed between the Governor-General and the Speaker. Such addresses are transmitted to the Governor-General privately on behalf of the Speaker. If the address is to the Sovereign and the Sovereign is present in New Zealand, the address is presented to the Sovereign in person.36 Otherwise the address is

29 SO 168(1). 30 SO 168(2). 31 SO 168(2). 32 SO 168(3). 33 SO 169(1). 34 (24 May 2004) 617 NZPD 13213. 35 SO 169(2). 36 (14 February 1990) [1990] JHR 11.

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presented or transmitted to the Governor-General for communication to the Sovereign.37 Reply to an address Any answer made by the Sovereign or the Governor-General to an address is reported to the House by the Speaker,38 or it may itself be the subject of a message to the House. The Governor-General conveys any answer from the Sovereign to the House. Any reply is entered in the Journals of the House.

37 SO 169(4). 38 SO 169(3).

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