Placing the monarchy, Stephen Levine

This Realm of New Zealand: The Sovereign, the Governor-General, the Crown
Alison Quentin-Baxter and Janet McLean
Auckland University Press, $65.00,
ISBN 9781869408756

To say that this book adds considerably to the literature about the monarchy in New Zealand would be an understatement. For those interested in the position of the Queen (and her successors) with respect to New Zealand, as well as in possible alternatives, this is an indispensable work. Produced by two distinguished scholars – Janet McLean is a professor of law at the University of Auckland; Dame Alison Quentin-Baxter has had a long career, contributing her expertise to constitutional developments in New Zealand as well as overseas – the book introduces a wealth of information not only about the role of the monarch but also about her/his representative (from 1841 the Governor; since 1917 the Governor-General), a position of significance in its own right. 

For most New Zealanders, the ongoing efficiency and democratic character of the country’s political system ensures that knowledge about its conceptual basis, or detailed information about its actual workings, can be left to others to contemplate. Few New Zealanders think of the country as a “Realm” and a clear understanding of what is meant by “the Crown” is elusive in any case. The absence of clarity in New Zealand’s constitutional arrangements (and in popular understanding of them) forms a backdrop to much of this book’s presentation, as the authors define what is meant by various arcane terms – the “Realm”, the “Crown”, and “Letters Patent” (“literally an open letter”) – seeking to remove some of the mystery around the way in which New Zealand’s governing arrangements have been conceived and described. 

In their attempt to bring greater clarity, the authors put forward various suggestions, recommending a more straightforward setting forth of the principles involved in the appointment of prime ministers, as well as repeal of legislative provisions giving a “false impression” of the governor-general’s powers as Commander-in-Chief of New Zealand’s armed forces. They are also keen to dispel other misconceptions about the governor-general, including the idea that the office serves as an “ultimate constitutional safeguard” – “almost nothing is now left of [this] colonial concept”. The governor-general’s role in giving final assent to legislation is described as the office’s “most well-known, but perhaps least well-understood, role”, with a refusal to do so “unthinkable”. The Queen’s own options are graphically described: “She must sign her own death warrant if the two Houses unanimously send it up to her.”

Written in generally dispassionate and non-judgmental prose (apart from the occasional ironic observation), the authors identify many of the consequences associated with a move towards a republic, a step often described (and not only by its proponents) as “inevitable”. The effort, as described here, is less simple than might seem at first glance. With the Sovereign the “conceptual core” of New Zealand’s current constitutional arrangements, “removing the Sovereign” would involve more thought and effort than might otherwise be appreciated. One of the complicating elements, more or less assumed here, is the view that becoming a republic requires agreement on a republican constitution – this, in a country “renowned” (if that is the right word) for getting on with things without such a document. The authors conclude that, from “the first day of the republic, the constitution must work as well as it did on the last day of the monarchy” – an admirable goal, though one that raises the far-from-original question about the necessity for constitutional change if existing arrangements already work so well. Indeed, the authors note that motivation for change appears principally to involve considerations of “New Zealand identity”. 

Overall, notwithstanding the book’s “what if” consideration of an alternative republican future, this is a work firmly rooted in legal, historical and conceptual scholarship about the world as it was and is, highlighting ways in which the Sovereign and his/her representative have contributed to the governance of New Zealand and the country’s broader development. Not surprisingly, special attention is given to Treaty-related matters, revolving around the Sovereign’s “personal relationship” with Māori, highlighting subtle yet substantial ways in which that “relationship” continues to have profound effects. The implications for Māori of a possible change to a republic – with the Sovereign’s role dissolving further into the mists of history – lead the authors to suggest that a change to a republic might need to require an expression of Māori consent in addition to overall voter support (in a referendum) by more than a simple majority. 

Much of the book is devoted to the position of governor-general – with respect to the executive, parliament and the justice system – with the authors seeing in the position potential to offer “non-partisan but inspirational leadership to the nation”. An annual televised message (analogous to the Queen’s) is envisaged, as is regular communication between the prime minister and the governor-general (comparable to the weekly meetings between British prime ministers and the Queen), premised on a prime minister’s “duty … to keep the Governor-General informed” complemented by a governor-general’s “right to discuss” with a prime minister “any aspect of the government’s policies and actions”. 

The book’s overall purpose, “to make the workings of the New Zealand constitutional monarchy more accessible, and to correct some common misunderstandings about how it works”, is consistent with the image of a New Zealand public unfamiliar with fundamental features of the country’s system of government. The authors observe that few New Zealanders “realise that, as a matter of law, the authority to govern belongs to the Sovereign, and is delegated to the Governor-General, and through the Governor-General to Ministers and their officials”. In this, they are no doubt correct: this is almost certainly not the way most New Zealanders would normally conceive of their country’s system of parliamentary government, renewed (as a kind of warrant of fitness) on a three-yearly elective basis. Elsewhere, the book notes that “the power to appoint a New Zealand Prime Minister is vested in the Sovereign”. How many New Zealanders would describe the appointment of the country’s prime minister in such a manner? 

There is, in the authors’ words, a “chain of constitutional authority”, giving “the government of the day … not only … the authority to govern, but also the duty to do so”. “By the Letters Patent, the Sovereign establishes the executive branch of government. There is no more detailed provision in the written law”. The 1983 Letters Patent are sufficiently central to the New Zealand system as to lead the authors to point out their physical location: 

One copy is held in the Cabinet Room. It is to be wondered, however, whether the Ministers of the Crown, who regularly make their most important decisions there, are aware that the document nearby is the formal source of their authority as Ministers ….

The role of “the Crown” in courtroom drama – familiar from books, television programmes and films – is also noted, with “the Crown”, representing “the common good and the public”, “central to the language and processes of contemporary criminal law”. The nation’s judges, appointed by the governor-general on behalf of the Sovereign, acting on the government’s advice, take an oath “to well and truly serve Her [or His] Majesty”. The authors, in speculating about a republican New Zealand, note that consideration would need to be given as to whom (or what) “allegiance” should be given (by various officials) via a revised statement of loyalty. 

The book also looks at the role of New Zealand’s “Head of State” role beyond New Zealand’s borders, with the governor-general’s visits to other countries bringing “a new dimension” to the office. Less significant today is the responsibility of issuing a formal declaration of war, although it seems rather fanciful to attribute the virtual disappearance of this feature of the Head of State’s role to the United Nations Charter’s requirement for member states to “refrain from the threat or use of force”, as perhaps no feature of that document has been violated more frequently, or more comprehensively, than the one referred to here. 

Overall, the book departs from more popular views of the monarchy, in which attitudes fluctuate in line with the popularity of particular members of the royal family, with interest in matters royal generally confined to life cycle themes: births, deaths and marriages. Indicative of recent scholarly interest – a 2018 book, The Canadian Kingdom: 150 Years of Constitutional Monarchy, considers issues canvassed here in the Canadian context – This Realm of New Zealand provides a thought-provoking guide to the place of the monarchy in New Zealand’s constitutional arrangements. 

Stephen Levine, Professor of Political Science at Victoria University of Wellington, is editor of Stardust and Substance: The New Zealand General Election of 2017, launched by Prime Minister Jacinda Ardern.

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