10 November 2008

Election 08: constitutional tid-bits

"Prime Minister Elect" This is an awkward term that sits awkwardly with our traditions and constitutional process for determining the head of our Executive. In a formal sense, the Prime Minister is appointed by the Governor-General under his or her reserve prerogative powers (see LAWS179: "NineToNoon: The election and government formation"). In a substantive sense, voters do not "elect" a Prime Minister. They do not vote for a Prime Minister, like they do with the President in the United States. Nor do they actually "elect" a government under MMP. Nowadays our system contemplates the indirect election of governments, that is, voters elect parliamentarians who are then charged with the function of determining a government through a process of coalition and confidence-and-supply negotiations (see Joseph, ""MMP and the Constitution: Future Constitutional Challenges"). Perhaps a better term might be "Prime Minister Designate"? Cabinet Collective Responsibility There was a comment made over the weekend that Sir Roger Douglas might not want to sit around the Cabinet table and may prefer to be a Minister Outside Cabinet, because then he would not be bound by Cabinet collective responsibility. This is incorrect. Para 2.27 of the Cabinet Manual provides:
Cabinet Ministers, Ministers outside Cabinet, and Ministers of State 2.26 ... 2.27 Ministers outside Cabinet have full legal powers as Ministers, and may be appointed to full portfolios. They have the same role, duties, and responsibilities as Ministers inside Cabinet, and are also bound by the principle of collective responsibility. (See paragraphs 5.22 - 5.28.) They do not attend Cabinet, but, with the agreement of the Prime Minister, may attend for particular items relating to their portfolio interests. They are usually members of one or more committees, attending other committees where relevant.

And, of course, both Winston Peters and Peter Dunne have been bound by Cabinet collective responsibility during their tenure as ministers outside cabinet, subject only to the "agree to disagree" provisions that their parties have been able to negotiate in confidence and supply agreements.

Constitutional transition I've addressed the timetable for transition and operative caretaker convention in an earlier post: > LAWS179: "Election 08 - the constitutional transition"


Graeme Edgeler said...

Perhaps a better term might be "Prime Minister Designate"?

That's the term Peter Williams used yesterday, and another TV One reporter used "Prime Minister to be".

TV3, however, thought John Key was elected, but then they probably referred to Helen Clark as our first elected woman Prime Minister, so it might be par for the course...

Dean Knight said...


Of course, the first elected woman Prime Minister was adopted principally to distinguish the historical contest. Helen Clark was the first female Prime Minister appointed following an election. Jenny Shipley was the first female Prime Minister, but did not successfully lead her party through an election to obtain that position.

Course Outline

Lord Justice Lawton in Maxwell v Department of Trade and Industry [1974] 2 All ER 122 said:

"From time to time ... lawyers and judges have tried to define what constitutes fairness. Like defining an elephant, it is not easy to do, although fairness in practice has the elephantine quality of being easy to recognise. As a result of these efforts a word in common usage has acquired the trappings of legalism: 'acting fairly' has become 'acting in accordance with the rules of natural justice', and on occasion has been dressed up with Latin tags. This phrase in my opinion serves no useful purpose and in recent years it has encouraged lawyers to try to put those who hold inquiries into legal straitjackets.... For the purposes of my judgment I intend to ask myself this simple question: did the [decision-maker] act fairly towards the plaintiff?"

This course examines the elephantine concept of fairness in the law, along with other contemporary legal issues.

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