8VW^cZiBVcjVa'%%- Summary of Contents Foreword xv Preface xvii On the Constitution of New Zealand: An Introduction to the Foundations of the Current Form of Government 1 1 Governor-General and Executive Council 7 2 Ministers of the Crown: Appointment and Role 17 3 Ministers of the Crown and the State Sector 35 4 Ministers and the Law 48 5 Cabinet Decision Making 62 6 Elections, Transitions, and Government Formation 75 7 The Executive, Legislation, and the House 86 8 Official Information 107 Appendices Appendix A: Letters Patent Constituting the Office of Governor-General of New Zealand 1983 127 Appendix B: Guidelines for Government Advertising 137 Appendix C: Cabinet Directions for the Conduct of Crown Legal Business 1993 140 Index 143 Summary of Contents iii HjbbVgnd[8dciZcih ^^^ 8VW^cZiBVcjVa'%%- Contents Foreword xv Preface xvii On the Constitution of New Zealand: An Introduction to the Foundations of the Current Form of Government 1 1 Governor-General and Executive Council 7 Introduction 7 Governor-General 7 Office of Governor-General 7 Formal powers and functions of office 8 Royal prerogative 8 International role 8 Exercising the powers and functions of office 8 Administrator of the Government 9 Executive Council 9 Powers 9 Membership of Executive Council 10 Resignations and dismissals of Executive Councillors 10 Clerk of the Executive Council 11 Meetings of Executive Council 11 Items for consideration by Executive Council 11 Preparing items for Executive Council 12 Meetings, quorum, and attendance 12 Confidentiality 13 Gazetting and entry into force 13 Announcement 13 New Zealand Royal Honours System 14 General 14 Administration 14 Nominations 14 New Zealand Royal Honours for non-New Zealand citizens 15 “The Honourable” 15 Acceptance of foreign honours by New Zealand citizens 15 Heraldry 16 2 Ministers of the Crown: Appointment and Role 17 Introduction 17 Prime Minister 17 Appointment 17 Role 18 Contents v 8dciZcih k 8VW^cZiBVcjVa'%%- Deputy Prime Minister 19 Ministers 19 Appointment 19 Resignation and dismissal 19 Legal power for Ministers to act for other Ministers 19 Role and powers of Ministers 20 Financial responsibility of Ministers 21 Cabinet Ministers, Ministers outside Cabinet, and Ministers of State 21 Ministerial portfolios 21 Associate Ministers 22 Acting Ministers 23 Duty Ministers 24 Parliamentary Under-Secretaries 24 Parliamentary Private Secretaries 24 Conduct, public duty, and personal interests 25 General 25 Conduct of Ministers 25 Register of Pecuniary Interests of Members of Parliament 25 Ministers’ interests 26 Identifying conflicts of interest 26 Types of conflicts of interest 26 Pecuniary interests 27 Interests of family, whnau, and close associates 27 Association 27 Managing conflicts of interest 28 Conflicts of interest in the House 29 Constituency interests 29 Gifts 30 General 30 Gifts from foreign governments 30 Gifts from non-government or commercial organisations 30 Cultural gifts 30 Political party donations 31 Fees, endorsements, and outside activities 31 Product endorsement 31 Fees and other payments 31 Business and professional activities 32 Government advertising guidelines 32 Ministerial travel 32 Overseas travel 32 Purpose of travel 33 Approval of travel 33 Travel costs 33 Accompanying family members, staff, and officials 34 vi Contents k^ 8dciZcih 8VW^cZiBVcjVa'%%- Reporting on overseas travel 34 Personal travel overseas 34 Visits by Ministers from other countries 34 Travel within New Zealand 34 3 Ministers of the Crown and the State Sector 35 Introduction 35 The public service, the state services, and the state sector 35 Public service 35 State services 36 State sector 36 Ministers and the public service 37 Roles and responsibilities 37 Ministers’ relationships with chief executives 37 Accountability documents 37 Briefing for incoming Ministers 38 Ministers and officials 39 Individual ministerial responsibility for departmental actions 40 Appointment of chief executives 40 Chief executives as employers 41 Ministers and Crown entities 41 General 41 Role of Ministers 42 Whole of government directions under the Crown Entities Act 2004 42 Role of Crown entity boards 43 Role of monitoring departments 43 Ministers and companies in the state sector 43 General principles 43 State-owned enterprises 44 Integrity and conduct across the state sector 44 Principles of public service 44 Processes for upholding the principles of public service 45 Public comment on government policy 46 Public servants’ contact with political parties 46 Select committees 46 Caucus and caucus committees 46 Supporting consultation and negotiation between political parties 47 Private communications with Ministers and members of Parliament 47 4 Ministers and the Law 48 Introduction 48 Attorney-General 48 General 48 Role of Attorney-General 48 Law officer role 48 Contents vii 8dciZcih k^^ 8VW^cZiBVcjVa'%%- Legal proceedings involving the Crown 49 Link between the judiciary and the government 49 Responsibility for agencies 49 Attorney-General’s functions and section 7 of the Constitution Act 1986 49 Comment by Ministers on judicial decisions 49 Crown legal business 50 Litigation involving Ministers 50 Judicial review 50 Appearance in court by Ministers to give evidence and production or discovery of documents 51 Service of court documents 52 Indemnity of Minister as a defendant 52 Proceedings brought against Ministers 52 Proceedings concerning the exercise of ministerial powers 52 Proceedings against a Minister personally 53 Preliminary steps 53 Cabinet consideration 53 Procedure where the Crown undertakes the defence 54 Procedure where private counsel is retained 54 Payment of costs or damages awarded 54 Receipt of costs or damages awarded 55 Indemnity of Minister as plaintiff 55 Legal advice and legal professional privilege 55 General 55 Legal professional privilege 55 Guidelines for the presentation of legal advice 56 Waiver of legal privilege 57 Release of legal advice 57 Public inquiries 58 General 58 Statutory commissions of inquiry 58 Commissions of inquiry 58 Royal commissions of inquiry 58 Powers and privileges of statutory commissions of inquiry 59 Establishing a statutory commission of inquiry 59 Subject of inquiry 59 Purpose of inquiry 59 Terms of reference 60 Appointment of inquirer or commissioner 60 Budget and time frame 60 Ministerial inQuiries 60 Standing bodies with inquiry powers 61 Statutory bodies 61 Select committee inquiries 61 viii Contents k^^^ 8dciZcih 8VW^cZiBVcjVa'%%- 5 Cabinet Decision Making 62 Introduction 62 Cabinet 62 Cabinet committees 62 Principles of Cabinet decision making 63 Items for consideration by Cabinet 63 Consultation 64 Portfolio consultation 64 Political consultation 64 Departmental consultation 65 Statutory consultation processes 65 Confidentiality 65 Collective responsibility 65 Collective responsibility and Ministers 65 Collective decision making and government agencies 66 Exercise of Ministers’ statutory powers and functions in the collective Cabinet context 66 Statutory decisions 66 Statutory decisions and Executive Council 67 Cabinet and Cabinet committee procedures 67 Preparing and submitting Cabinet papers 67 Deadlines and late papers 68 Amendments to papers 68 Withdrawal of papers 68 Agendas 68 Oral items 69 Minutes 69 Meetings 69 Chairs of meetings 69 Attendance of Ministers 69 Quorum 70 Attendance of officials and visiting dignitaries at Cabinet 70 Attendance of officials at Cabinet committee meetings 70 Financial matters and Cabinet 70 Government spending 70 The Budget cycle 71 The Crown’s financial veto 71 Regulatory impact analysis 72 Constitutional issues and Cabinet 72 International treaties and Cabinet 72 Cabinet and the Resource Management Act 1991 72 Referral to Cabinet of decisions taken outside the Cabinet process 72 Secretary of the Cabinet and the Cabinet Office 73 Contents ix 8dciZcih ^m 8VW^cZiBVcjVa'%%- 6 Elections, Transitions, and Government Formation 75 Introduction 75 The electoral cycle 75 General 75 Cabinet and Ministers’ decision making before and after an election 76 Pre-election period 76 Transitions following an election 77 General 77 Outcome of elections 77 Caretaker convention 77 General 77 Principles of the caretaker convention 78 Two arms of the convention 78 Unclear outcome 78 Clear outcome 79 Decision-making process under the caretaker convention 80 Departments and other state sector agencies 80 Day-to-day administration 80 Departments 80 Crown entities, state-owned enterprises, and other state sector agencies 80 Ministerial decisions 80 Coordination and the Prime Minister’s role 81 Guidance on decisions about expenditure and the Official Information Act 1982 81 Government formation 81 General 81 Principles and processes of government formation 81 Outgoing Ministers 82 Appointment of a new government 82 Mid-term transitions 83 General 83 Mid-term change of Prime Minister with no change of government 83 Mid-term change of government 83 Early election 84 Provision of information by the state sector during transitions 84 7 The Executive, Legislation, and the House 86 Introduction 86 Speech from the Throne 87 Prime Minister’s statement 87 Government legislation programme 88 Purpose of the legislation programme 88 Confidentiality 88 Development of the legislation programme 88 Monitoring the legislation programme 88 Legislation Coordinator 89 x Contents m 8dciZcih 8VW^cZiBVcjVa'%%- Law Commission work programme 89 Development and approval of bills 89 From policy to enactment 89 Process for developing bills 90 Assessing the need for