THE EXECUTIVE (LAWS204)

Executive power vs Parliament

Parliament is legally sovereign; executive holds most day-to-day practical power

Why executive is powerful

Control of policy, spending, coercion, bureaucracy, and majority support in Parliament

Role of executive in daily life

Most interaction with state occurs through departments, agencies, police, and services

Functions of executive

Implements law, develops policy, manages state, conducts foreign affairs, enforces law

Public law concern

How to control and structure executive power while allowing effective government

Core public law questions

Source of executive power and limits on that power

What is the executive

Branch of government excluding Parliament and judiciary

Political executive

Ministers and Cabinet who make political decisions

Administrative executive

Public service and agencies implementing decisions

Ministers

Elected officials directing government policy

Cabinet

Central collective decision-making body of executive

Cabinet legal status

Exists by convention, not statute

Executive Council

Formal legal body giving legal effect to executive decisions

Governor-General role

Formal legal actor acting on advice

Government definition (constitutional)

Political executive, often used broadly for governing group

Crown definition

Legal embodiment of the state as a continuing entity

Public service role

Implements policy, advises ministers, administers law

Cabinet vs Executive Council

Cabinet decides policy; Executive Council formalises legally

Cabinet Manual

Key authoritative guide to executive conventions and practice

Collective government principle

Government acts as one unit and stands/falls together

Confidence of House

Government must maintain majority support in Parliament

Cabinet collective responsibility

Ministers publicly support agreed decisions

“Debate in private” rule

Ministers may disagree in Cabinet but unify publicly

Cabinet confidentiality

Cabinet discussions must remain private

“Agree to disagree”

Coalition exception allowing public disagreement while staying in government

Purpose of collective responsibility

Unity, accountability, coherent government

Constitutional conventions

Non-legal but binding constitutional rules

Why conventions matter

Enforced politically through resignation, criticism, elections

Legal vs political constitution

Courts enforce law; politics enforces conventions

Jennings test

Convention exists through precedent, belief in obligation, constitutional reason

Why Cabinet is conventional

No single legal source; developed through practice

Governor-General on advice

GG acts on ministerial advice by convention

Reserve powers

Limited GG discretion in exceptional constitutional uncertainty

Ministerial resignation convention

Officeholders should resign for serious misconduct or loss of confidence

Caretaker convention

Government avoids major decisions during transition periods

Purpose of caretaker convention

Preserve status quo until new government formed

Individual ministerial responsibility

Ministers accountable for portfolio outcomes

Collective responsibility vs individual

Cabinet unity vs personal portfolio accountability

Coalition impact on conventions

Flexibility increases in multi-party government

MPs vs Ministers

Only Ministers are executive; MPs are not automatically government

Government backbench MPs

Support government but remain Parliament members

Whips role

Enforce party voting discipline

Ministers outside Cabinet

Ministers in executive but outside central Cabinet decisions

Cabinet vs non-Cabinet Ministers

Both are executive; only Cabinet joins core decision-making

Government formation principle

Government formed by confidence of House, not election winner

PM appointment principle

PM must command majority confidence

Governor-General appointment role

Formal appointment of PM and ministers on advice

Coalition formation

Political bargaining determines executive composition

Loss of confidence outcome

Government must resign or seek alternative support

Supply vote significance

Loss of supply = loss of confidence

Caretaker after confidence loss

Outgoing government continues limited administration

Rule of law core idea

Government must act under law, not above it

Abuse of power

Misuse of authority for improper purpose

Arbitrary power

Acting without lawful authority or justification

Entick v Carrington principle

State must show legal authority for action

Entick rule

No authority = unlawful state action

Court role in Entick

Courts determine legality, not executive

State equality principle

Government subject to same law as citizens

Webster v Police principle

Statutory powers must meet all conditions strictly

Police authority limit

Entry/search only lawful if statutory threshold met

Otago Proctor principle

Good intentions cannot create legal authority

Private property rule

Entry requires legal justification regardless of motive

Fitzgerald v Muldoon principle

Executive cannot suspend or override legislation

Bill of Rights 1688 s1

Suspending laws without Parliament is illegal

Core Muldoon rule

Only Parliament can change or repeal law

Press release law principle

Executive cannot change law by announcement

Separation of powers

Parliament makes law, executive implements, courts interpret

Executive limitation principle

Political support does not equal legal authority

Sources of executive power

Statute, prerogative, third source

Statute power

Authority granted by Parliament

Prerogative power

Historical Crown powers recognised by common law

Third source power

Ordinary person powers of government

Statute supremacy

Parliament can override prerogative and structure executive power

Statutory interpretation focus

Text, purpose, context, rights

Express statutory limits

Conditions written into legislation that must be met

Implied statutory limits

Reasonableness, fairness, purpose, NZBORA consistency

NZBORA s5

Rights may be limited if justified

NZBORA s6

Prefer rights-consistent interpretation

Borrowdale case principle

Courts upheld broad COVID powers due to statutory safeguards

Emergency powers issue

Balance rights vs necessity of rapid government response

Prerogative definition

Non-statutory Crown powers from historical authority

Prerogative source

Recognised by common law, not created by Parliament

Examples of prerogative

Foreign affairs, defence, appointments, mercy, public service structure

De Keyser principle

Statute displaces prerogative in covered fields

No choice principle

Government cannot choose prerogative over statute

CCSU principle

Prerogative powers are subject to judicial review

Justiciability limit

Courts avoid reviewing political/foreign affairs decisions

Dualism principle

Treaties not domestic law unless incorporated by Parliament

Executive treaty role

Signs international agreements without Parliament initially

Parliament role in treaties

Must legislate for domestic effect

Presumption of consistency

Courts interpret statutes consistently with international law

Mandatory relevant consideration

Decision-makers must consider relevant treaties

Third source definition

Government may act like private individual if not restricted

Third source limit

Cannot affect rights or override statutory regimes

Malone principle

Early acceptance of surveillance without statute

Hamed principle

Surveillance affecting rights requires authority

Quake Outcasts principle

Government cannot use “information” framing to avoid legal limits

Third source trend

Modern courts increasingly restrict its use

Rights threshold rule

If rights affected, statute required

Final executive principle

Government must always identify lawful authority for action