17 November 2008

Weir House 75th Reunion

> VicUni: "75 Years of Weir House 1933–2008"

I was asked to give some brief remarks at the International Night diner at the Weir House reunion on Saturday. I've reproduced them below:

- - - - - - - - - - - - - - - - - Weir House 75th Reunion, 15 November 2008

Ngā mihi o te po, talofa lava and good evening.

I understand it is customary at these events to give a brief whakapapa recounting one's connections with the institution being honoured and celebrated tonight.

I happily admit to being one of Jane and Leon Fulcher's cohort, like many here today. I arrived at Weir House in 1992, a skinny, spotty youth from the Manawatu (one of the "country boys" Tim Beaglehole spoke of) and spent my first year resident in room A20 in the Old – now known as William Weir – Wing.

After a year elsewhere, for my sins, I returned in 1994 as Deputy Warden, attending to administrative duties and discharging pastoral care from Room C25.

More recently, I continue to keep an eye on Weir House. As a lecturer in the Law School, I am invited and attend the Faculty dinners, a tradition I am delighted to see continues. And from the groups of students I teach, one occasionally hears words – usually warm words – said about the Weir House experience from those of the current generations of residents.

For the purposes of tonight's event, I have been asked to give a short "resident's perspective" – more a "relatively recent resident's perspective" – on my time at Weir House.

But I fear any anecdotes I might offer may prove to be rather dull. While at the time of being resident in the 1990s we thought we were renegade rascals who got up to much mischief, I must confess the tales of misadventure I overheard today from residents before my time sounded much more exciting and scandalous. (We rarely made Salient, let along the NZ Truth!)

And I suspect many of my anecdotes, such as: - the crusade for cooked Sunday brunch and the revolt against the Burmese Chicken (a dish I am now rather fond of) - the keg and other parties; - the sights one saw as a DW while checking rooms during fire alarms; are all best shared as they have been today amongst close friends and colleagues of that generation.

Instead, I just want to reflect briefly on two basic questions: - What did Weir House represent to me at the time I was a resident, and - What does Weir House represent to me now as an alumnus?

First, what did Weir House represent to me as the time I was a resident?

Two words: stability and discovery.

For me and many others, Weir House represented an anchor or mainstay in a time of great transition.

Relocating from the provinces, we as first year university residents were faced with many new challenges and things to discover. The discovery of an exciting cosmopolitan city, with the new experiences associated with the diversity we were unaccustomed. University education and higher learning – the discovery of new concepts and ideas. The discovery of ourselves, as we transitioned into adult-hood; our identity, our values; what's important to us.

Weir House facilitated these journeys of discovery. But, importantly, Weir House also provided routine, dependable home comforts and certainty during the vicissitudes of early university life.

Secondly, what does Weir represent to me as an alumnus?

Without doubt, it is friendship and rich ongoing relationship.

As solid and charming as the physical structures of Weir House were and are, the buildings are empty shells without the warmth and humanity manifest by the people that occupied them.

As I toured the building this afternoon, it was the holographic faces of my fellow residents generated by my memory that bought the real smile to my face. My friends and neighbours. And it's those relationships that were the greatest gift Weir gave to us. Relationships we continue to enjoy.

Friendships that continue on a daily basis. More distant friendships that get renewed in taverns in London, winebars in Toronto or cafes in Melbourne. Friendships that exists virtually, in the form of an occasional poke on social networking sites like Facebook.

Or friendships that exist as that warm glow when one hears of the different paths people have walked down. Senior partner in a law firm. Mother and homemaker. Professional athlete. Comedian. Old English Scholar. Civil servant. That glows as one thinks, we shared a couple of steps on that journey together.

It was a pleasure to share my time of discovery with such delightful and dependable friends. And it's been a pleasure today renewing and refreshing those acquaintances.

I look forward to doing so again in 25 years at the Centenary!

12 November 2008

A Murky Methodology: Standards of Review in Administrative Law

Below is one of my articles that has just been published in the New Zealand Journal of Public and International Law:

> Dean R Knight, "A Murky Methodology: Standards of Review in Administrative Law" (2008) 6 NZJPIL 117

(Well, it's imprinted with a June 2008 date but, for various reasons - both within and beyond our control, the hard copy just turned up this month!)

Abstract:

The approach the courts should adopt when reviewing the "merits" of an administrative decision continues to be a vexed issue. For many years Wednesbury unreasonableness was regarded as the appropriate monolithic standard for this task. However, dissatisfaction with this standard has led to the development of alternative approaches, most notably the concept of variegated standards of reasonableness. This article explores the methodology adopted by New Zealand courts on this point and concludes that, while the courts have been prepared to adopt a sliding-scale of unreasonableness, the approach is under-developed and inadequate in a number of respects. From the existing experience, a refined five-standard framework is proposed to guide the degree of intensity the courts should adopt in their supervisory judicial review role.

11 November 2008

Election 08: MP free zone

I've been reminded of a little quirk within our constitutional system: for about 19 days, we have no MPs! Let me explain. The term of members of Parliament is set out in section 54 of the Electoral Act 1993:
54 Term of office of member of Parliament
(1) Where an election is held for any electoral district, the person whose name is endorsed on the writ issued for the election as the person declared to be elected shall, subject to this Act,—
(a) come into office as the member of Parliament for that electoral district on the day after the day of the return of that writ; and
(b) vacate that office at the close of polling day at the next general election.
(2) Where any person whose name is entered on a party list submitted pursuant to section 127, is declared by the Chief Electoral Officer to be elected as a member of Parliament, the person shall, subject to this Act,
(a) come into office on the date after the date of the return made by the Chief Electoral Officer pursuant to section 193; and
(b) vacate that office at the close of polling day at the next general election.
MPs reign until the close of polling. But new electorate MPs don't come into office until the day after the writ (the formal advice to Parliament of the outcome of the election by the Chief Electoral Officer) is returned under section 285 of the Electoral Act 1993. That's not scheduled to take place until 27 November (Chief Electoral Officer: "Election date announcement puts Chief Electoral Office in top gear"). And new list MPs don't come into office until the following day, after the Chief Electoral Officer has declared those elected pursuant to the list.
The other consequence of the quirk is that our constitution needs to provide for the temporary tenure of ministers who are not MPs. The most basic feature of our system is that one needs to be an MP in order to be a minister. (In principle, it's not entirely incontrovertible, as some have suggested we could allow non-MP appointments of ministers. But that would require a constitutional change.) The MP-lacuna during the electoral transition period would ordinarily undermine that feature. But the answer - and smooth constitutional transition - is found in section 6(2) of the Constitution Act 1986:
6 Ministers of Crown to be members of Parliament
(1) A person may be appointed and may hold office as a member of the Executive Council or as a Minister of the Crown only if that person is a member of Parliament.
(2) Notwithstanding subsection (1) of this section,—
(a) A person who is not a member of Parliament may be appointed and may hold office as a member of the Executive Council or as a Minister of the Crown if that person was a candidate for election at the general election of members of the House of Representatives held immediately preceding that person's appointment as a member of the Executive Council or as a Minister of the Crown but shall vacate office at the expiration of the period of 40 days beginning with the date of the appointment unless, within that period, that person becomes a member of Parliament; and
(b) Where a person who holds office both as a member of Parliament and as a member of the Executive Council or as a Minister of the Crown ceases to be a member of Parliament, that person may continue to hold office as a member of the Executive Council or as a Minister of the Crown until the expiration of the 28th day after the day on which that person ceases to be a member of Parliament.
Existing ministers can continue as ministers for 28 days after election day. People can be appointed ministers and continue to hold tenure for up to 40 days, if they were a candidate in the election but have not yet formally come into office.
In previous government transitions under MMP, the determination of Prime Minister and new ministerial positions was settled after MPs came into office. However, with the rush to get John Key to APEC, these arrangements are being expedited and he will be appointed before then - perhaps even on the weekend. In a formal sense, that means he will be representing New Zealand as the most senior member of our Executive, but not yet as a member of our Parliament!

10 November 2008

Election 08: executive roles for the Maori Party

There's some talk about Ministerial roles outside Cabinet for the Maori Party. I wonder, though, whether the wiser solution might be to appoint Turia and Sharples as Parliamentary Under-Secretaries. See paras 2.45 - 2.48 of the Cabinet Manual:
Parliamentary Under-Secretaries 2.45 The Governor-General, under section 8 of the Constitution Act 1986, may appoint any member of Parliament to be a Parliamentary Under-Secretary in relation to the ministerial office or offices specified in the warrant of appointment. The Governor-General appoints Parliamentary Under-Secretaries on the advice of the Prime Minister. Although they form part of executive government, Parliamentary Under-Secretaries are not members of the Executive Council, so they are not empowered to act for Ministers under section 7 of the Constitution Act 1986. 2.46 Parliamentary Under-Secretaries are appointed to assist Ministers, and their authority derives solely from the Minister they are assisting. (See section 9 of the Constitution Act 1986.) 2.47 The relevant Minister must provide to the Parliamentary Under-Secretary a formal letter clearly setting out the role of the Parliamentary Under-Secretary in the portfolio, any delegated responsibilities, and relevant working arrangements. The draft letter must be approved by the Prime Minister through the Secretary of the Cabinet, and the Minister should provide copies of the final letter to the Secretary of the Cabinet and the chief executive of the department concerned. As with Associate Ministers, the letter should set out clearly the Parliamentary Under-Secretary's area of responsibility, including any limits on authority, on the ability to make public statements, and on the relationship with the department. Details of delegations to Parliamentary Under-Secretaries may be included in the Schedule of Responsibilities Delegated to Associate Ministers. (See paragraphs 2.32(c) and 2.35.) 2.48 As members of the Executive, Parliamentary Under-Secretaries are bound by the principle of collective responsibility. (See paragraphs 5.22 - 5.28.)

In my view, a better deal to the "unity-distinctiveness" dilemma for both side of the equation.

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"

9 November 2008

Election 08 - the constitutional transition

In the light of last night's results, the transition process - from a constitutional perspective - will be as follows. First, even though the electoral process has delivered a clear verdict, those parties that will form the government will need to complete their (political) coalition negotiations. Secondly, the constitutional role of the Governor-General regarding the appointment of the Prime Minister remains the same: to ascertain where the support of the House lies (see LAWS179: "NineToNoon: The election and government formation"). While it is clear that John Key will lead the next government, the precise nature of the coalition or government arrangements - and parties in any coalition or support arrangements - is yet to be settled. The Governor-General needs to be satisfied that that grouping will be able to survive confidence and supply votes in Parliament. As a guide, the Governor-General has traditionally looked for signed coalition or confidence-and-supply agreements, or similar joint public statements confirming arrangements have been settled to provide that support. Again, it's important to note that this process and its timing will be driven by the political parties. Their obligation is to publicly declare the position once it is reached; once that is done, the Governor-General will execute the constitutional process of appointing and swearing in the Prime Minister and new government. When that formal constitutional transition will take place is not known. From a constitutional perspective, it need not await the final results following the counting of special votes (22 November 2008). Given the relatively clear electoral verdict for the potential coalition government, the Governor-General might be able to be satisfied that this grouping can command the confidence of the House regardless of any possible changes from special votes. (In previous rounds of government formation under MMP, coalition negotiations weren't finalised - and the governments weren't appointed - until after the final confirmation of the various results, in some cases, the outcome of the special votes being material to the garnering of a coalition.) However, the parties or the Governor-General may take a prudent course and the constitutional transfer of power might not be sought or applied until after the official results are known. Thirdly, in the meantime, Helen Clark remains Prime Minister with lawful executive authority, along with her ministers. But their power is entirely circumscribed by the caretaker convention until the new government is sworn in. Before the election, we expected that one particular version of caretaker convention would apply during the period of coalition negotiations, that is, the relatively complex set of provisions in para 6.20 of the Cabinet Manual regulating decision-making where the identity of the incoming government is unclear. However, in this case where there is a clear verdict, the alternative version of the caretaker convention in para 6.24 of the Cabinet Manual applies:
Principles of the caretaker convention Two arms of the convention 6.19 There are two arms to the caretaker convention: a. where it is not clear who will form the next government (see paragraphs 6.20 - 6.23); b. where it is clear who will form the next government, but they have not yet taken office (see paragraphs 6.24 - 6.25). ... Clear outcome 6.24 Where it is clear which party or parties will form the next government but Ministers have not yet been sworn in, the outgoing government should: a. undertake no new policy initiatives; and b. act on the advice of the incoming government on any matter of such constitutional, economic or other significance that it cannot be delayed until the new government formally takes office - even if the outgoing government disagrees with the course of action proposed. 6.25 Situations of this kind are likely to be relatively short-lived, as the Constitution Act 1986 enables a swift transition between administrations once the composition of the new government has been confirmed.

That is, the Prime Minister and her ministers are required to act on the advice of John Key if any matters of significance need to be addressed before his government is sworn in.

5 November 2008

NineToNoon: The election and government formation

> RadioNZ: "NineToNoon - Legal Commentator - Dean Knight (5/11/2008) [or mp3] The post below is an expanded version of some of the things discussed with Kathryn Ryan on NineToNoon.
-------------------

Background As at Saturday approaches, there's really one important matter from a constitutional perspective: the formation of the government following the election. There are four important questions we need to address: - Who is responsible for determining who the next Prime Minister and government is? - How do they determine that? - What process do they undertake when determining that? - What happens after it has been resolved (or not resolved)? The Cabinet Office has helpfully collated lots of useful information about this process, and has made it publicly available on its website: http://www.cabinetoffice.govt.nz/

Who is responsible for selecting the next Prime Minister? It may surprise some people to realise that it is the Queen herself who is ultimately responsible for selecting or appointing the Prime Minister: her most senior responsible adviser. It's one of the (Royal) prerogative powers or powers of the Sovereign.

However, unsurprisingly, the Queen steers well clear of New Zealand during election time!

That responsibility has been formally delegated to the Governor-General, Anand Satyanand, under clause 10 of the Letters Patent (one of the formal legal instruments of the Monarch). But usually the Governor-General simply acts on advice of the government? How does it work in the context where there is no government? Although the Governor-General formally makes many of our most important decisions (signing new laws and regulations, dissolving Parliament, etc), the most important constitutional convention says he must act on the advice on his responsible advisors, that is, the Prime Minister and other Ministers. That ensures decisions made have democratic legitimacy.

But when it comes to forming a new government, the Governor-General must act independently and makes his own judgement – there are no "responsible advisors" with a democratic mandate to advise him. This is what we describe as one of the reserve powers, decisions that are "reserved" to the Sovereign or their local representative to make themselves.

We didn't always think the decision about who is entitled to be Prime Minister was made by the Governor-General themselves. Historically there was some suggestion that the outgoing Prime Minister advised the Governor-General of their replacements. But this view has been properly debunked - an outgoing Prime Minister does not have the confidence necessary to advise the Governor-General on such matter.

If it's the Governor-General who decides who should be appointed Prime Minister, how do they decide who to appoint? As with many decisions in constitutional law, although the Governor-General has the power to appoint the Prime Minister and government, that power is not unfettered. There are important limitations on the exercise of that power.

Here it is fettered by constitutional convention – those fuzzy customs that are so important within our constitutional convention.

What is this the convention? And where do we find it? There's a couple of places where we can find a description of the conventions that apply and must be honoured. - First, there's the handy Cabinet Manual. It describes in summary form the basic nature of the conventions. - Secondly, there's also another quite important constitutional source: notable speeches from former Governors-General. We can add those to our taxonomy or list of sources within our "unwritten" or "customary" convention.

In particular, our first Governor-General to operate in an MMP environment – Sir Michael Hardie Boys – gave a number of speeches on the topic. There speeches are treated as being authoritative on the convention. They're thoroughly researched and carefully worded.

What does the convention say? The central point of the convention is that the selection and appointment of the Prime Minister and government needs to be done consistently with the democratic imperative.

The Governor-General is an unelected official who needs remain neutral and apolitical. The process of forming a government is political and the decision to form a government must be arrived at by politicians, in accordance with the chips dealt to them in the election. Borrowing words from elsewhere, they are "political decisions, politically arrive at".

The Governor-General's sole task is to ascertain the will of Parliament. That is, as Sir Michael Hardie Boys repeatedly put it, "to ascertain where the support of the House lies". That's the crucial phrase, and what gives the process its democratic foundation because it links the appointment of the Prime Minister to the product of the electoral system.

When acting in accordance with that test, a Governor-General can take comfort that they are acting consistently with the democratic imperative. If they deviate from it, we move into the zone of constitution crisis.

What's meant by the phrase "support of the House"? This means the government needs to enjoy the confidence of the House. That's the target for any prospective Prime Minister. With it they are entitled to govern. Without it they're obliged to resign and act in a caretaker capacity until a new government is appointed. It's the lifeblood of a government.

As our parliamentary guru, David McGee, says "strictly speaking, confidence is a negative and somewhat circular concept". A government retains the confidence of the House "for so long as it can avoid defeat on important parliamentary votes – those votes that involve confidence".

What votes involve confidence then? The basic point is that it's not every vote that the government needs to win. They can, and occasionally do, lose some votes on some bills and procedural matters.

Again, the question of what votes are confidence votes involves a degree of political judgement, but we basically know what we're looking for.

First, there might be an express vote of confidence or no confidence in the government or Prime Minister. That is, where the motion says something like "the House has no confidence in the government".

Secondly, there are implied votes of confidence. Those votes which relate to the "supply" of money to fund the operation of government. The Budget and the granting of imprest supply. Without parliamentary authorisation of expenditure, the machinery of government cannot operate. Hence we hear the term "confidence and supply".

Finally, the government can "declare" any vote on any Bill or issue effectively a vote on confidence.

In this context, an express vote of confidence or no-confidence will be one of the first hurdles of any new government.

Historically, no confidence votes were more common. No confidence votes are usually moved as an amendment to another motion before the House. But nowadays, under MMP, its been more common to see a positive motion of confidence in a government being put. There's no real difference between the two (apart from when the vote is tied where the effect of the vote can be a bit more tricky to work out).

Under the standing orders, there are only a few debates which are broad enough to allow for a motion of no confidence: the Address in Reply (the first debate of the Parliament), the debate on the Prime Minister's Statement (the first debate of each year) and the Budget date etc. But the Prime Minister is usually appointed before the House is reconvened? Essentially the Governor-General's task is to ascertain, as conclusively as he can, which parliamentary grouping will survive that vote of confidence. And he will probably be called on to do so before that House reconvenes and the vote actually happens. Subsequently, that first confidence will act as the "check or balance" on the Governor-General's judgement – it should confirm his assessment of where the support of the House lies.

He will be looking for statements from the political parties confirming that they can command the support of the House. Things like signed coalition or confidence and supply agreements. Clear and unequivocal public statements of support, etc.

There are a range of coalition or governance arrangements which can ensure that a grouping can maintain the support of the House. You might think of them in terms of a spectrum: - a formal coalition agreement, like Progressive has, where the support party has a Minister at the Cabinet table; - a confidence and supply agreement, like NZF and United have, with or without Ministerial positions, where the support parties agree to support the government on confidence and supply; - co-operation agreements, like the Greens have now, where the support party agrees to abstain on votes of confidence; - other more innovative arrangements (there's been some speculation that the Maori Party might seek governance arrangements we have not yet seen before).

As we've heard recently, government formation is much more complicated that one main party getting more seats than the other. Being able to construct or garner a coalition that commands the support of the House is more important.

What about this claims circulating that there is a "convention" that the largest party in the House gets first chance to form a government or is legally or morally more legitimate as a government? From a constitutional or legal sense, there's no basis for such claims. This suggestion was specifically rejected in one of the Sir Michael Hardie Boys' early speeches on government formation under MMP (1997 Harkness Henry lecture):

"In a parliamentary democracy, the exercise of my powers must always be governed by the question of where the support of the House lies. It is this simple principle which provides the answer to those who sometimes suggest that in situations like that encountered by New Zealand after the last election, the head of state should simply call on the leader of the largest party to form a government. Size alone provides no reason to prefer a party if its leader does not appear to have the support of a majority of the House. It is better to wait for negotiation among the parties to produce a majority."

Quite simply, there is no such constitutional convention. Quite the opposite. The potential arrangements being queried are consistent with the democratic imperative; they ensure the government reflects the majority of votes expressed in terms of MPs. And, in my view, this claim has no more foundation when expressed in terms of "moral" legitimacy. We know what the ultimate target is: commanding the support of the House. That's just an attempt to influence the nature of government formation by trying to change the terminology.

I sometimes make an analogy between the race for PM and a Ranfurly Shield match. My team, Wellington, would play Canterbury and would often score lots of tries. But in the way they often do, the Canterbury team would convert their pressue into points through lots of penalties, and occasionally a drop-goal or two. And much to my disappointment, they'd get more points on the board at the end of the day.

I know my team, Wellington, was the more enterprising and scored many more tries. But the other team scored more points. A "moral victory" for my team? Not really. And, in any event, that's not going to be enough to bring the Shield home.

Returning to the question of how the Governor-General determines who has the support of House, practically how does this happen? Again, this is governed by the need for the Governor-General to be neutral and apolitical. At least in the first instance, the Governor-General will leave the parties engage in their negotiations. Importantly, the Governor-General does not actively facilitate negotiations. (Unlike, say, Denmark where there's a "Queen's Round" where the parties have an immediate audience before the Queen and negotiations facilitated by a Royal Investigator.)

If the Governor-General does anything on Sunday, it will simply be to reiterate these principles.

Once a party considers they have the necessary support, it is expected that the parties will announce that fact and provide the necessary confirmation. Again, the need to avoid perceptions of bias or interference means the Governor-General has decreed that such announcements should be done publicly.

Following any announcement, there may be a need to the Governor-General to communicate with the party leaders to ensure that he has sufficient information to satisfy himself that he can appoint the Prime Minister. If there is any need for communication, this will be undertaken through the Clerk of the Executive Council (who is also the Secretary of Cabinet), who provides official, independent support for the Governor-General during this time.

If the situation continues to be unclear after negotiations, the Governor-General may need to communicate with the leaders of all political parties; at this point, there may be some need for more active facilitation of negotiations by the Governor-General - but to date this has not been needed.

If it's still not clear, the support of the House may be tested on the floor of the House in votes of confidence. There's no constitutional need for the position to be settled before the Parliament must be reconvene, although it sets an incentive or informal deadline (in 1999, the government wasn't formed until the eve of the opening of Parliament).

And, of course, if the Parliament remains hung and no-one can command support, the House may need to be dissolved by the Governor-General and fresh elections called. What are the key dates? 9 November 2008: Election 22 November 2008: Official results declared 27 November 2008: Return of the writ (Chief Electoral Officer reports the election results back to Parliament) 28 November 2008: Declaration of list members elected 8 January 2009: Parliament must be summonsed (Commission opening of Parliament, followed by state opening of Parliament and Speech from the Throne the following day).

Who is in charge while this all takes place? During this period of government formation, Helen Clark will continue as Prime Minister, along with her Ministers, but subject to the caretaker convention which prevents any significant decision-making without cross-party consultation.

So what happens when the Governor-General has determined who has the support of the House? An announcement will be made by the Governor-General. A formal swearing-in ceremony will follow quite quickly, even if the government is the same as before.

Once the Prime Minister is appointed, the Governor-General once again has a responsible advisor and we revert to the convention where the Governor-General acts on his or her advice. This allows the Prime Minister to then advise the Governor-General about what other Ministers ought to be appointed and to what portfolio.

Can the decision to appoint a Prime Minister be challenged in the courts? The Governor-General's decision is what we describe as being "non-justiciable" and not able to be challenged in the courts.

Here we have some recent authority from the courts. Although the circumstances were a little different, the Fiji High Court considered this very question in a legal challenge to their President's decision to dismiss and appoint a new Prime Minister following the 2006 coup (Qarase v Bainimarama). It ruled that the courts were not entitled to review the decision.

REFERENCES: - Cabinet Office, "Election 2008" - Geoffrey Palmer and Matthew Palmer, Bridled Power: New Zealand's Constitution and Government (2004, OUP, Oxford) - Philip A Joseph, Constitutional and Administrative Law in New Zealand (3 ed, 2007, Brookers, Wellington) - David McGee, Parliamentary Practice in New Zealand (3ed, Dunmore Press, Wellington, 2005) - Sir Michael Hardie Boys, "The Role of the Governor-General under MMP" - Sir Michael Hardie Boys, "The 1997 Harkness Henry Lecture: Continuity and Change" - Sir Michael Hardie Boys, "Governing under MMP: the Constitutional and Policy Challenges"

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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