The Governor General is deep in the DNA of Parliament

RNZ show The House talks about Parliament a lot. Yet, in more than eight years, one crucial part of Parliament has been largely ignored: the role of the Governor General, who is part of both Parliament and the Executive.

To gain insight into the role The House chatted with former Governor General, the Right Honourable Sir Anand Satyanand, who was our Sovereign's official representative for five years from mid-2006.

A quiet power, deep in the DNA

"The Governor General," says Sir Anand, "can be said to be deep in the DNA of Parliament. The definition of Parliament says something like 'the sovereign in right of New Zealand and the members of the House of Representatives.' In other words, the sovereign's representative in New Zealand (the Governor General) and the members of the House."

Sir Anand is correct, and in saying this exposes one of the journalistic shorthands that is, strictly speaking, incorrect. The term Parliament is frequently and widely used as interchangeable with the House of Representatives, possibly because the latter is so cumbersome. They are not actually the same. Parliament is the House plus the Governor General. The MPs alone are not Parliament.

He elaborates: "The public's knowledge is generally confined to the Speaker, and to the members, and the goings on in Parliament. But all of the things they do have a responsibility towards their duties and end up being signed off or approved by the Governor General of the day."

All of the formal outcomes of the House that have a real-world impact (legislation rather than debate or oversight), are just words without effect until they are assented to by the Governor General. At that point they become law.

The same is true of the Orders in Council or other documents agreed to by Ministers or Cabinet. They are just words until made law by the agreement of the Governor General, on behalf of the Sovereign.

Those niceties are often elided by the media in an effort to simplify, but the Sovereign's authority enables the very existence of the House and Government. Elections happen at the Governor General's behest. They sign a writ to command each one. The election results are confirmed by the Governor General, as written out on the back of the same writ, which is charmingly olde worlde.

The election transforms into a government when the Governor General 'chooses' a prime minister. As Dame Catherine Tizzard pithily put it, "The passing of the parcel of power". That choice, recalls Sir Anand "was certainly one of the more weighty things that one would do. In my case, in the 2008 election, it was a straightforward matter because the election had clearly been won by Sir John Key and Sir Bill English and National, and the Labour government, led by Helen Clark and Michael Cullen, had lost."

He says that the transition of power that he presided over was very smooth. "[The Labour government] had resigned their office and everything was done with exemplary good manners."

But there is, regardless, "a judgement required that the [Governor General] can be satisfied about the intended prime minister having a majority in the House".

After the transition, the Governor General bestows delegated authority on the prime minister and their Cabinet. The MPs that make up the House are also sworn in with the delegated authority of the Governor General, but not in person, as the Sovereign cannot enter the House. The role of Speaker is then also confirmed at Government House. All power flows down from the Sovereign.

Governance over the government - Council, counsel, and guardrails

While the power flows down from the Governor General, action flows up from the House and government.

The appointment of a prime minister is, says Sir Anand, "the one time where the Governor General does not have the benefit of prior advice from the prime minister because [they] haven't made one yet."

Once there is a prime minister though, the Governor General uses their power on the advice of the prime minister, other ministers, or the House. Sir Anand outlines, as an example, the process of assenting to legislation.

"Once the legislation has been passed in the House, there's a particular document prepared, which is certified by the Clerk of the House, saying something like, 'This bill has been passed by a majority of members in the House'. There is a statement by the Attorney General saying that there is nothing in the law that stands in the way of this receiving the royal assent. And then the prime minister formally requests that the legislation be signed by way of assent."

That's quite a line-up of signatures.

"So it would be a big ask to refuse to do that," says Sir Anand.

Note that it was the House of Representatives that passed the legislation, not Parliament. It will have been enacted by Parliament once the Governor General adds their own signature. Then it changes from being a Bill to an Act, short for 'an Act of Parliament'.

The House recently interviewed Professor Dean Knight about the guardrails for New Zealand democracy. He had said that one set of guardrails was the Governor General, who had both "theoretical hard power and actual soft power".

The actual soft power is the fact that ministers must bring various legal instruments to the Governor General to sign, and must satisfy them about those instruments. It's an intervening step away from a straight decision from the prime minister without consultation. The theoretical hard power is the fact that, in theory, a Governor General could refuse to assent, although that has never happened in New Zealand.

I asked Sir Anand about that 'hard and soft power' assessment and the possibility of refusing to follow advice.

"Starting my answer at the hard end, if the Governor General found that he or she could not bring themselves to assent to the law or whatever it was, the correct procedure would be for the Governor General to offer their resignation. So that's the hard end."

Practically speaking, a government could still get the thing it wanted, assented to by someone else, but the political aftermath of 'Governor General preferred to resign their post rather than sign' might be devastating to a government.

"The soft end is that we live in a country, fortunately, where things are done in a New Zealand kind of way. There's a lovely informality about our country that enables the Governor General of the day to speak with the prime minister and relevant ministers. And if there is an issue, for that to be spoken about openly, and for things to be resolved if a question meriting an answer has arisen. There are those three famous things. 'The Governor General has the right to advise, to be consulted, and to warn'."

Sir Anand says that Walter Bagehot's nineteenth century phrasing - as learned by constitutional law students - is "never advanced in a formal way in New Zealand, because things are generally done informally; it's one of the guardrails that you speak of."

The advising, being consulted and warning particularly happens on Mondays at Parliament, when the Governor General arrives and the flag changes to acknowledge that. They are there to meet with Ministers from the Executive Council, depending on who has paperwork that needs approving. Sir Anand outlines the specifics.

"There is a specific room set aside for the meetings of the Executive Council. And that, in practice, is a quorum of the cabinet, comprising those ministers who have a stakeholding in the regulations that Cabinet has passed. So that smaller group of people meet, and the Governor General presides. The regulations come forward, they are presented by the [appropriate] minister, and the Governor General satisfies themselves that the appropriate procedures have taken place."

There might also be "other things like orders taking land, warrants for people appointed to positions by the Cabinet. There's quite an agenda of things."

"Sometimes the [legislation enabling a] regulation will require consultation to have been undertaken with parties, and the Governor General might seek assurance that that has been done, and the minister often has a letter to illustrate the fact. So it's a quick process, but the Governor General's mainly involved with monitoring rather than leadership."

Sir Anand describes this as "governance". The Governor General, as the name suggests, undertakes a form of governance over the government.

The role is sometimes described as a 'rubber stamp'. But it's not that automatic: there is a conversation that happens wherein ministers satisfy the Governor with what they're doing, why they're doing it, and why this is the right thing to do.

"It's an easy stone to throw to say that the Governor General is just a rubber stamp, or as it has been put colourfully elsewhere, 'a nodding automaton'. I think in a country like New Zealand, everyone would expect that the Governor General would simply not just sign automatically everything put in front of them. They have a right to expect some examination of 'why'."

Sir Anand agrees that Kiwis aren't predisposed to doing what we're told without asking questions. Australians are similarly testing, but I get the idea that in this regard, things may be done less formally here.

"There was a good statement made by a former Governor General of Australia, Sir William Dean, whose writings I followed keenly when I was in office. And he said, 'the Governor General is entitled to raise concerns and to explore issues of national importance, but not to debate solutions, for solutions are the domain of the politicians'."

"For someone of my legal and judicial background, asking questions came easily, and it was comfortable to leave the solutions to politicians."

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