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The Executive Internal Constraints Notes

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This is an extract of our The Executive Internal Constraints document, which we sell as part of our LAWS204 Public Law Notes collection written by the top tier of Univerity Of Otago students.

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The Executive - Internal Constraints

The New Zealand Crown The Crown: used when referring to virtually every aspect of NZ government Constitution Act 1986 - last step in the constitutional domestication of the UK Crown in NZ Such that the GG does more than just represent Queen - replaces her. e.g. Grenada civil strife, Queen didn't step in even when GG was jailed. Crown = constitutionally significant: e.g. In Treaty of Waitangi. Core convention of crown: the GG acts on the binding advice of the person commanding the confidence of the House of Represent atives. Originally Crown itself was seen as oppresive, Parliament developed to curtail its arbitrary power. Now, GG is a legal, if un conventional safeguard on unconstitutional Parliaments. Governor General Head of state, neutral, non-partisan, non-political actor. Appointed on advice of PM by convention. Power authorised by the Queen through the Letters Patent. Gives power to: Constitute and appoint various officers (e.g. EC, PM, Ministers) Exercise the prerogative of mercy. Signs bills into law and summons, prorogues and dissolves Parliament - Constitution Act Reserve powers: royal powers of government that the GG may exercise other than on the advice of the PM. Either: 1) If there is doubt as to who commands the confidence of the house, or 2) Where the GG is asked to do something in violation of fundamental principles. "A recourse of the last resort, an ultimate weapon which is liable to destroy its user."

Executive Council Governor General + Cabinet. Ministers = executive councillors. Action by GG requires two elements: A recommendation by a Minister/Ministers; and The advice and consent of the EC. The Prime Minister Primus inter pares - first among equals, though perhaps not in the media age - now PM is boss. PM can call elections at any time by dissolving Parliament - can use as a threat. PM is party leader. PM appoints and sacks Ministers PM determines agenda and speaks for Cabinet (and caucus) - chief spokesperson of government. PM maintains and coordinates government. PM is Minister of the SIS by convention PM's office and Dept of the PM and Cabinet allow for feedback to PM, coordination of ministries, etc. Cabinet "A hyphen which joins the legislative part of the State to the Executive part of the state." Cabinet members must become MPs within 40 days of being appointed, must leave office 28 days after ceasing to be MPs. Final decision maker on important matters of policy and government spending, Approves the content of all government bills, regulations Coordinates the public services. Cabinet committees are formed to discuss certain issues in more depth. Cabinet manual = bible, but descriptive, not prescriptive. Ministers Members of Cabinet/EC (usually), heads of ministries/departments (always). Three powers:
? Have to implement the government's preferred policy in the area
? Exercise certain statutory powers and functions
? Oversee overall performance of the executive agencies below them

Legal controls on executive - tort Choudry v A-G Jim Bolger, as Minister of SIS, issued a warrant under the SIS Act 1969 to permit the SIS to search Choudry's house (an APEC protestor). But the SIS Act 1969 didn't give the Minister such power. So SIS committed private tort of trespass on Choudry's property. Just as any citizen would have been, SIS was held liable. SIS agents acted illegally, trespassed. After CA decision, Crown settled outside of court. Parliament then changed the SIS Act to give the SIS this power. Scary.

Constitutional Conventions and the Executive Attorney General v Jonathan Cape Ltd Crossman = minister, kept diaries of his time in cabinet, J Cape wanted to publish them, A -G said this was a breach of cabinet responsibilities so shouldn't be allowed. J Cape: ministerial responsibility = convention, not enforceable in Court. Held: joint responsibility is a convention, and as such is not legally enforceable in court - binding in morality only. But gives rise to an equitable claim preventing a person from publishing that which was received in confidence - binding in law. In this case, enough time had passed that the confidential nature of the information had lapsed. Conventions are: binding, historical rules that have their basis in a principle necessary for constitutional government. Two step test to find a convention: 1) The people governed by the convention in actual fact believe they ought to follow that convention

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