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EXECUTIVE Policy + Source of Power (what gives them the power and whether it is legal). WHO MAKES UP THE EXECUTIVE? 1. 2. 3. 4. 5. Sovereign/ Governor General Executive Council (all ministers of the crown). Cabinet (most ministers of the crown – excludes ministers outside governing party). Prime Min...

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EXECUTIVE Policy + Source of Power (what gives them the power and whether it is legal). WHO MAKES UP THE EXECUTIVE? 1. 2. 3. 4. 5.

Sovereign/ Governor General Executive Council (all ministers of the crown). Cabinet (most ministers of the crown – excludes ministers outside governing party). Prime Minister Bureaucracy that support and implements policies. a. Government departments (reporting to ministers, but headed by CEO’s) b. Crown entities i. Crown agents (ACC, DHB, Housing NZ etc that give effect to govt policy. ii. Autonomous crown entities (Te Papa, Symphony Orchestra – have regard to government policy). iii. Independent (law commission, human rights commission – generally independent from gvot). iv. Unis and polytechs. v. Fully owned crown companies (Radio NZ) c. State-Owned Enterprises (SOE Act 1986) All of the above is the state sector. Including Local Government it is the public sector. ROLE OF THE EXECUTIVE 1 hand develops policy and the other it administers policy and services (wide range: tax, health, armed forces, transport). More and more the government is become involved in private sector and more market focused. State Owned Enterprises: Entities that used to be government departments, then decided it was better for them to be businesses, they’re still providing essential services that the government meant to give. EXECUTIVE COUNCIL:

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The making of regulations (regulations are made by the Governor-General in Council, by Order in Council). The establishment of Royal Commissions and Commissions of Inquiry. The appointment of Chief Executives of Government Departments.

COLLECTIVE & INDIVIDUAL ACCOUNTABILITY (1) COLLECTIVE MINISTERIAL ACCOUNTABILITY All Minister’s of the Crown are collectively responsible for decisions and act with one voice. Allows frank and full discussion inside, while not showing fragmentation.

Cabinet Manual 2008 5.22: “The principle of collective responsibility underpins the system of Cabinet government … In all areas of their work, therefore, Ministers represent and implement government policy.” 5.23: “Once Cabinet makes a decision, Ministers must support it … regardless of their personal views and whether or not they were at the meeting concerned.” Attorney General V Jonathan Cape Ltd (1976)  

Diaries were going to be published, but AG successfully argued doctrine of collective responsibility includes aspect of confidentiality. Thus duty of confidentiality is a common law principle the courts can enforce. MINISTERS FROM DIFFERENT PARTIES IN CABINET

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Coalition governments can establish “agree to disagree” process, which allow Ministers within coalition to maintain, in public, different party positions on particular issues/policies. (5.25) MINISTERS FROM DIFFERENT PARTIES NOT CABINET

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This reflects our current situation: a minority government with confidence and supply agreements. Para 5.27: Ministers outside Cabinet are “bound by collective responsibility only in relation to their particular portfolios.” However, when “Ministers represent the government internationally, they speak for the government on all issues that foreign governments may raise with them in their capacity as Ministers.”

(2) INDIVIDUAL MINISTERIAL RESPONSIBILITY 

Ministers accountable for the proper and efficient functioning of their departments. Responsible for all actions/inactions, even when they have no knowledge. (Cabinet Manual 3.21)

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Cave Creek platform collapse led to resignation of Minister of Conservation (Denis Marshall) in 1996. Pike River Mine = resignation of Minister of Labour (Kate Wilkinson) in 2012.

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When should it lead to a Ministers resignation?    

Gross impropriety Gross incompetence Deliberate misleading of parliament. Major policy failure.

EXECUTIVE ACCOUNTABILITY (1) STRUCTURE OF GOVERNMENT 

Executive Ministers are MP’s and thus face democratic check. This is due to our system of responsible government = Refers to the system when executive is drawn from members of the legislature (stated in s6(1) of The Constitution Act 1986).

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Ministers are insulated from daily decisions – never make specific case decisions. Select committees and question-time in the House of Representatives. Still subject to the rule of law.

(2) CONTROL OF REGULATIONS    

Regulation Review Committee of the House of Representatives (set up in 1985). Investigates complaints about regulations and ensures regulations are subject to parliamentary scrutiny. Legislation Act 2012 – Contains the power of the house to disallow regulations by resolution of the house (power that does not get used). Possibility of seeking judicial review and claim regulations are ultra vires.

(3) STATUTORY LIMITATIONS 

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Ombudsmen Act 1975: Ability to investigate the executive and publish a report detailing any imporpoer behaviour. Investigation on complaint or by ombudsmen’s own notion (reserve power used sparingly). Official Information Act 1982: This Act creates presumption information will be disclosed on request, and that there must be sufficient reasons to displace this. Public Finance Act Provides framework for parliamentary scrutiny of the crowns assets and liability responsibility for the crowns financial resources. Legislature votes on executive expenditure. Public Audit Act 2001: Auditor-General is empowered to investigate misconduct by those exercising control over public funds. Local Government Official Information and Meetings Act 1987 Inquiries Act 2013

(4) JUDICIAL REVIEW IS THE SOURCE OF LAW ROYAL PREROGATIVE? Most of the day to day functioning of the executive is now authorized by statute – Royal Prerogative is slowly being put into statute (i.e. the State Sectors Act 1988).

(A) IS IT A PRE-EXISTING PREROGATIVE NO NEW PREROGATIVES (BBC v Jones (1965) Per Diplock L.J.) – Therefore, if the executive is wanting to use it must point to appropriate existing power.

(B) COMMON LAW DOES NOT LIMIT PREROGATIVE ~

(C) DOES STATUTE LIMIT THE PREROGATIVE? STATUTE OVERIDES PREROGATIVE Dr Keyser’s Royal Hotel Ltd (1920)

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FACTS: Owners sought compensation for the compulsory occupation of parts of their hotel by the War Office during WWI. Statute entitled them to this, but crown claimed they did not have to as they were acting under the prerogative. HELD: A statute will prevail over a prerogative power if the two are inconsistent. The Crown must abide by the terms and conditions of statute even if they restrict/abolish prerogative. Lord Atkinson: It would be “useless and meaningless” for Parliament to legislate restrictions if the prerogative could then overrule them. Lord Dunedin: Both statute and prerogative could coexist, but if the statute covers the whole ground if what can be done by prerogative – statute trumps. BUT THEY CAN RUN PARALLEL Secretary of State for the Home Department, ex parte Northumbria Police Authority (1989)

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FACTS: Central government released circular specifying police could obtain riot gear even if local police authority did no consent. ISSUE: Whether the circular (para. 4) was ultra vires of the Secretary of State power under section 41 of the Police Act 1964. HELD: There was a prerogative power to keep the peace, plus a broad discretion under s41. Prerogative and statute can run parallel as long as the prerogative power in not inconsistent with the statute. If the statute and prerogative are inconsistent, statute will prevail. Reading in words that were not there would be an unreasonable interference.

(C) IS THE PREROGATIVE SUBJECT TO JUDICIAL REVIEW COUNCIL OF CIVIL SERVICE UNIONS (CCSU) V MINISTER FOR THE CIVIL SERVICE (1985) HL      

FACTS: Government banned civil servants from trade unions, but gave no notice. ISSUE: Could their exercise of prerogative be subject to judicial review? HELD: Lord Diplock: prerogative powers can be subject to judicial review, so long as the subject matter is judiciable. Procedural impropriety gave way to national security. Some political issues (like national security) are such that the courts are not in position to evaluate and by nature they’re reserved for the executive to assess. Affirmed in New Zealand = Curtis v Minister of Defence (2002) - Argued minister acting outside his powers by disbanding combat force in RNZAF, but found nonjusticiable whether the AF was left insufficiently armed. BURT V GOVERNOR-GENERAL (1992) NZCA

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Sought review on refusal to grant mercy. Held that while prerogative of mercy was not previously, it may now be judicially reviewable. This would create means of accountability in place to ensure sound decision making. Obiter: Cooke J, duty of the courts in right cases to extend the scope of judicial review. R (BANCOULT) V SECRETARY OF STATE FOR FOREIGN AND COMMONWEALTH AFFAIRS (NO 2) (2009) – HL

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Facts: RP used to expel local islanders. ISSUE : Is prerogative legislation (Order in Council) subject to judicial review? HELD: HL holds the courts can judicially review prerogative legislation. However, having regard to the facts is not unreasonable/abuse of power (due to consideration of resettlement, the security/diplomatic reasons that lie only with exec.)

IS THE EXECUTIVE USING THE THIRD SOURCE? = the power for government to do everything not forbidden/prohibited,

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PROS Enables government to respond fast and flexibly to government’s needs. If we legislated everything we’d often find things that we missed at the end.

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CONS Controversial – should be subject to greater accountability? Does it make sense for them to have this freedom? Can incorporate power to interfere with individual liberty when there is no protected right upon these liberties.

(A) IS THERE A LEGAL RESTRICTION? COMMON LAW Entick v Carrington (1765): The common law restricted the government power under the third source as the law of trespass prevented search and seizure. STATUTE i.e Constitution Act 1986 section 22 prohibits the levying of taxation without authorization from Parliament.

(B) AUTHORITIES PROMOTING THE THIRD SOURCE MALONE V METROPOLITAN POLICE COMMISSIONER (1979)   

FACTS: Mr Malone complained police had exceeded their powers in tapping his telephone. HELD “it can be lawfully done simply because there is nothing to make it unlawful.” RP AND RIGHTS: The government is free to do anything that is not prohibited by law, which includes interfering with the liberties or activities of individuals where those liberties or activities are not protected by legal rights. If there is a prima facie legal right it must point to a specific source in statute or the prerogative. ( R v Secretary of State of Health Ex p. C (2000) Held the government had power under the third source to collect information relating to individuals who might not be suitable to work with children and tell employers whether prospective employees were on that list. SHREWSBURY AND ATCHAM BC V SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT (2008)

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Brought judicial review claim to challenge form of consultation process leading up to the passing of new legislation. All agreed she had third source authority and there was nothing to stop her managing consultation. Carnwath LJ: suggested third source only exercised for ‘public benefit’ and ‘governmental purposes.’

(C) AUTHORITIES AGAINST THE THIRD SOURCE R v Somerset CC Ex. P. Fewings Queen Bench Division (1995) 

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FACTS: Local authorities decision (to ban hunting on the land for moral reasons) was quashed. No statutory authority required them to have regard to moral reasons and thus not entitled under statute. LAWS J: disagreed with idea of the third source. Said positive law must justify any action.

(D) NEW ZEALAND POSITION HAMED V R (2011) NZSC:   

FACTS: Challenge regarding authority to gather covert evidence & thus whether it was admissible. Majority held that the police were trespassing and evidence was obtained without legal authority and couldn’t be used (thus Third Source could be replied on). ELIAS CJ (OBITER): Supported idea there was no third source. QUAKE OUTCASTS (2013) NZCA

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FACTS: Red Zone: Government decided not suitable for habitation Within it they purchased insured land for 100% of value and the government would take the insurance claim. Individuals not insured took actions. COURT OF APPEAL : Confirmed existence of third source, but could not apply as it did not allow Executive to act against legal rights of individuals.

GOVERNOR GENERAL ROLE OF THE GOVERNOR GENERAL Maintain legitimacy and continuity of the government & ensures it is the political party with support of the house that forms the government. (If government does not have confidence of the house do they have mandate?) (+ Ceremonial role). ROLE WITH MINISTERS The GG enjoys the same constitutional rights as the Sovereign, that is:  The right to the full confidence of the Ministry  The right to be informed (clause 16 LP 1983)  The right to advise and warn

SOURCE POWERS OF THE GOVERNOR GENERAL

Clause 2 Letters Patent 1983 provides fro the constitution of the office of the Governor-General of New Zealand. Constitution Act 1986 s 2(2): “The GovernorGeneral appointed by the Sovereign is the Sovereign’s representative in NZ.” POWERS     

Assents legislation (s 16 Constitution Act 1986) Can dissolve, prorogue, or summon Parliament (s 18 Constitution Act 1986) Power to appoint judges to DC and HC Clause 10 of Letters Patent 1983: Power to appoint members of Executive Council, Ministers of the Crown. Royal Prerogative of Mercy.

CONVENTIONS The convention is that the Governor General follows the advice of his or her ministers – Clause 7 of the Latters Patent 1983 constitutes the Executive Council ‘to advise Us and Our Governor-General in the Government of Our Realm of New Zealand.” (Thus does the GG enjoy influence rather than actual power?) Cabinet Office Manual, paragraph 1.12: reflects this convention.

‘RESERVE POWER’ When GG acts without or in contravention of ministerial advice he is said to be exercising his ‘reserve powers’. Still using prerogative or statute, it is just reserve power because it is done without or in contravention of ministerial advice. 

Vital & pivotal function of GG office to ensure we have stable government with majority support – may have to exercise reserve power to protect this.

SITUATIONS WHEN RESERVE POWERS CAN BE USED. (1) APPOINTMENT OF PRIME MINISTER By convention, this is the leader of the party/group of parties that has support of the house. - Has to decide where the balance of confidence lies without ministers. (2) DISMISSAL OF PRIME MINISTER The Prime Minister is under an obligation to resign if they lose the support of the house (lost election/vote of no-confidence/replaced as Party Leader/coalition Government nominates another Party Leader) – but if they refuse the GG may have to dismiss them. (3) REFUSAL OF REQUEST TO DISOLVE PARLIANT Normally if PM advices GG to dissolve Parliament, GG will follow. This depends very closely on whether the Prime Minister’s government has the confidence of the house (normally PM advices this). The Byng/King Controversy (1926, Canada)

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Liberal minority government (PM= King) Opposition Conservative Party leader (Arthur Meighen). PM requested dissolution, but GG refused and appointed Meighen as PM. Meighen lost supported in the house. Fresh elections were held – won by liberals GG may not have taken sufficient steps to confirm that new PM would have confidence. Thus if GG goes against ministerial advice it should be on substantiated grounds. The Bennet/Gray controversy (1989, Tasmania)

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Following the Tasmania election in 1989, Liberal govt had the most seats, but not the majority. Labour Leader wrote to the GG and asked him to form a Labour minority govt with support of the independents. Liberal PM asked him not to, and then suggested he dissolved house. GG asked labour leader to present written assurances from five independents in relation to five major issues that had the potential to destabilise the government. After documents presented Liberal PM presented his resignation. This is an example of the GG taking concrete steps to assure himself of where the balance of support lies in the house in order to ensure a stable government is formed for a reasonable period of time. Kerr – Whitlam controversy (1975, Australia)

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The Australian government is bicameral – the government is drawn from the lower house & needs laws to go through the senate. There is a convention the senate won’t obstruct bills concerning money. Labour Government, but with liberal controlling senate. Mistrust for PM in the house (re: secret deals with the middle east) Opposition announces it would refuse supply in senate and demanded dissolution of the house, PM refused. GG dismissed PM and commissioned leader of opposition with understanding he would pass supply and immediately advise for the dissolution of both houses. Should the GG have taken more time and consulted with the PM and discussed his intentions before dismissing him? (4) FORCING A DISSOLUTION PARLIANT It is considered the GG can through reserve powers dissolve Parliament even where this is not the wishes of the PM – i.e. to prevent major constitutional illegality/preserve rights. (5) REFUSAL OF ASSENT Must disputed – bills have gone through and so clearly have the support of the house. Joseph envisages that this reserve power might be exercised in face of legislation that would usurp representative democracy i.e. bill suspending parliaments elections indefinitely etc)

THE DOCTRINE OF NECCESSITY

Common law doctrine: Exceptional circumstances when the courts may recognise as valid emergency action by the executive government (or armed forces) that would normally be unlawful. Justified in times of extreme crisis to preserve te state. Very limited – but can be used in extreme circumstances. REPUBLIC OF FIJI V PRASAD (2001): FACTS: This is a case to determine the illegality of actions of the Fijian Executive in response to attempted armed military coup. Interim government had declared state of emergency that allowed them to make decision – constitution said this had to be done through advice of cabinet (physically impossible to do this). HELD : Constitution could not be set aside, it remained supreme law. However, the proclamation of the state of emergency was justified by the doctrine of necessity. Doctrine not a blank cheque, but a necessary

DEGROGATION FROM RIGHTS IN TIME OF EMERGENCY A V SECRETARY OF STATE FOR THE HOME DEPARTMENT (2005) HL 

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ISSUE : Whether UK could notify derogation to the European Convention on Human Rights under the Convention’s Article 15 “Public emergency threatening the life of the nation” test. (wanted to detain possible terrorists following 9/11). HELD : Majority held the it was non-judiciable, it was for the executive to decide whether it was public emergency (succeeded on different claim: irrational and discriminatory) LORD HOFFMAN (MINORITY): Real threat to the life of the nation in the sense of people living in accordance with its traditions, laws and policies comes not from terrorism but from laws such as these. If there is a perceived emergency the Courts will be willing to grant the enormous powers to ensure continuity government and preservation of state.

TREATIES & THE PREROGATI...