(4) FAQs

How far back in history does this ‘separation of powers’ idea go?

As far back as Ancient Greece (Aristotle wrote about it) and Ancient Rome. In more ‘modern’ times, the French philosopher Montesquieu (1689-1755) famously set out the case for separated branches of government in his book The Spirit of the Law (beware, a heavy read)

So a Minister from the Executive branch must also be a member of the Parliament branch. I thought the branches were meant to be separate?

Indeed, a good point! The Westminster (British) system that New Zealand inherited is premised on parliamentary government, i.e. the government of the day (ministers) are drawn from, and are accountable back to, the Parliament branch. This does constitute a blurring of the lines insofar as you have some of the same personnel in 2 of the 3 branches of government. 

You say that a Governor-General can, in theory, reject a Prime Minister’s advice on how to exercise their powers, e.g. declining to give the Royal Assent to a law passed by the House of Representatives….but that it’s highly unlikely to happen. Is this how Governor-Generals see it?

The accepted view, even among Governor-General’s that have addressed this topic, is that refusing to follow the advice of a Prime Minister, for example declining to give the Royal Assent to a law (known as a ‘bill’), is a non-starter. Here’s an excerpt from a speech that Governor-General Rt Hon Sir Anand Satyanand gave to Canterbury Law students in 2010 (full speech here).

It would be essentially unthinkable for a Governor-General to refuse to provide assent to legislation that has been passed by a democratically elected Parliament and, in reality, in the United Kingdom no Monarch has refused to give assent to a government bill since 1707, and in New Zealand not since the New Zealand Parliament assumed full law-making authority.

When people talk about New Zealand becoming a ‘republic’ what does that mean exactly?

As we saw in session 1, the current ‘Head of State’ is the Queen in Right of New Zealand (Queen Elizabeth II).

Some people are of the view that we should have a New Zealand citizen as our Head of State, reflecting Aotearoa’s journey from British colony, then to a Dominion, and finally a fully independent country that makes all it own decisions. It’s essentially a ‘coming of age’ argument. The New Zealand Republic group puts forwards the argument in favour of a New Zealand republic.

Equally, some people want things to remain as they are. It’s argued that the system is not broken and therefore doesn’t need fixing. It’s also suggested that because other countries have the same person as their Head of State (e.g. Australia and Canada), the monarchy provides us with an important link with those countries. Monarchy NZ puts forwards the arguments in favour of the status quo.

You said that ministers are always changing. Why?

While the Governor-General formally appoints ministers (remember the photo of the ministers at the long table being sworn in by the current Governor-General?), she appoints and dismisses ministers on the advice of the Prime Minister. So effectively, ministers are only ministers while the Prime Minister wants them to continue in that position. 

The PM might decide a minister isn’t performing and is therefore no longer required as a minister. It can be that brutal.

Or she may dismiss (i.e. sack) a minister for a failure to meet her expectations as a minister. One recent case was when Prime Minister Ardern indicated she would have dismissed her Minister of Health, David Clark, for not following lock-down rules but didn’t because it would have been too disruptive to her government’s COVID-19 response.

The third reason why ministers change is when we have a change of government altogether following an election and all 27 ministers are replaced by ministers from the opposition party/parties.

Remember that even though a person may no longer be a minister (Executive branch), they often continue on as an MP (Parliament branch).

So the State sector is part of the Crown, together with ministers and the Queen. Are all the government agencies that make up the State sector part of the Crown?

No. It only’s the part of the State sector that includes Public Service Departments, for example the Ministry of Health and the Ministry for Pacific Peoples. These departments do not have a separate legal identity - they are simply part of a larger legal entity called the Crown.

The definition of the Crown does not include Crown entities, for example Pharmac or the Financial Markets Authority. Nor does it include any State Owned Enterprises, such as NZ Post. These agencies are not part of the Crown, as shown in this image. Rather they are stand-alone legal entities created by Act of Parliament (e.g. the Financial Markets Authority Act 2011).

Who appoints the judges in the Judicial branch?

The judges that sit in the courts are appointed by the Governor-General. But remember the Governor-General 'acts on the advice'. In this case it’s the advice of the Attorney-General (who is a Minister in Cabinet). All Judges have been lawyers prior to their appointment. The judges are independent of both the Executive and Parliament branches in terms of the decisions they make. There’s more info here.