LAWS110: Constitutional Law 4

Introduction

This week focuses on the Tareo workshop and quiz.
The lecture continues on the three branches of government, following last week's discussion on parliament.
Duncan gave a talk on parliament.
His comments on parliamentary sovereignty were more suitable for second-year students.
This lecture will focus on the executive branch, and Wednesday's lecture will focus on the judiciary and its relationship with parliament.

Three Branches of Government

The executive and legislature have a lot of overlap, while the judiciary remains separate.

Terminology

Legislature/Legislative Branch: Also known as Parliament or Paremata.
Executive: Also known as the government or the Crown (Kawanatanga).
Judiciary: Also known as the Courts or the Judges (Nah Courti).
The three branches together are referred to as the government.
It's a common mistake to say, "The government passed the law."
The executive proposes the law, but parliament passes the law.
Example: Recent changes in pay equity legislation were proposed by the government but passed by parliament.
It is important to be precise with terminology in law.

The Executive Branch

The Beehive is the physical home of the executive.
Parliament is open, but the executive is more closed.
The top floor of the Beehive houses the cabinet office, staffed by politically neutral public servants.
The ninth floor of the Beehive is where the prime minister and his/her political staff are located, along with seconded public servants.
Other ministers and their staff occupy the remaining floors.

Key elements of the Executive

Governor General: Technically at the top, with formal power but not much real power (signing regulations, presiding over executive council).
Politicians: Headed by the Prime Minister.
Cabinet: The most powerful decision-making body, but an informal body with no legal standing.
Ministers: E.g., Minister of Foreign Affairs, Minister of Immigration, Minister of Education, Minister of Health.

Ministerial List

There are 28 ministers in the current government, with 20 in cabinet and eight outside cabinet.
Parliamentary undersecretaries are junior ministers.
The list of ministers and their responsibilities can be found on the website of the Department of Prime Minister and Cabinet.
The list includes National Party, ACT, and New Zealand First ministers both inside and outside cabinet, and undersecretaries.
Each minister's responsibilities are described, along with their department, any relevant organizations, the budget (vote), and related statutes.

Examples of Ministerial Portfolios

Prime Minister: Leadership of executive government, chair of cabinet, principal advisor to the sovereign.
- The term "vote" refers to the budget allocated to a specific line item.
Minister for Treaty Negotiations: Oversight of treaty settlements.
Attorney General: Senior law officer of the Crown, head of the legal profession.
- The attorney general oversees the Crown Law Office and the Parliamentary Council Office, which drafts laws.
- The Legislation Act 2019 is used to interpret laws.
Minister for Space: Encourages investment in New Zealand's space industry (Outer Space and High-Altitude Activities Act 2017).
Minister for Regulation: Tasked with reducing regulations, particularly for small businesses.
Minister for Workplace Relations and Safety: Responsible for workplace-related legislation, including the Equal Pay Act 1972 and the Fair Pay Agreements Act.
Minister of Foreign Affairs: Responsible for foreign affairs, while another minister looks after trade.
- Oversees the Ministry of Foreign Affairs and Trade.
Minister for Racing: Regulates horse racing (Racing Industry Act 2020).
- Responsible for decisions like getting rid of Greyhound racing in New Zealand.

Executive Council

The executive council is chaired by the governor general and represents the King.
It is more symbolic, dealing with decisions that need the governor general's signature (regulations, appointment of diplomats).
The decision is made in the morning and simply rubber-stamped in the afternoon.
Only two ministers are needed to attend, on a roster basis.
This is the New Zealand equivalent of The UK Prime Minister meeting the king weekly and giving them a briefing.
Historically the Prime Minister would go to Government House, now the Governor General comes to the Beehive.

Other parts of the Executive

Government departments:
- Ministry of Business Innovation and Employment.
- Ministry of Foreign Affairs and Trade.
- Crown Law Office.
- Department of Conservation.
Local government staff.
State-owned enterprises (e.g., Kiwi Rail, New Zealand Post, Transpower).
- These are profit-making government-owned companies.
Crown entities (e.g., ACC, Health NZ, school boards of trustees, University of Canterbury, Human Rights Commission).
- These deliver services but don't aim to make a profit.
The Army, Navy, Air Force, and the police.

Functions of the Executive

Executes and administers the law: Implements laws passed by parliament.
Formulates policies: Changes policies on issues like pay equity or immigration.
Expenditure: Proposes how taxpayers' money will be used (the budget).
Represents New Zealand internationally: The Minister of Foreign Affairs and Trade represents New Zealand overseas, negotiates international treaties (a type of law).
Proposes new legislation: Most laws passed by parliament are government initiatives.

Unbridled Power

Jeffrey Palmer's book, "Unbridled Power," discusses the excessive power of the executive branch.
Before 1996, there was executive dominance of parliament due to the electoral system.

Electoral System

Before 1996, New Zealand used the First Past the Post (FPP) system, where the party with the most votes/seats wins.
This resulted in single-party majority governments (e.g., Muldoon era).
There was a lack of checks and balances to constrain the executive. Other countries have:
- A supreme court with the power of judicial review to overturn laws.
- A second house (House of Lords, Senate) to review legislation.
- A codified constitution.
- A pure separation of powers between the executive and legislature.
- Federal governments.
Parliament was essentially a rubber stamp, leading to an "executive paradise."
New Zealand had the "fastest legislature in the West," passing numerous laws quickly (50 to 60 statutes annually).
- Fast lawmaking can lead to errors and a lack of public scrutiny.

Royal Commission

In 1984, a royal commission on the electoral system recommended proportional representation based on the German model.
Referendums in 1992 and 1993 led to the adoption of the Mixed Member Proportional (MMP) system.
The first MMP election was held in 1996.
Winston Peters was the "kingmaker" in 1996, with New Zealand First holding the balance of power.
- New Zealand First has been part of government four times, twice with National and twice with Labour.

How MMP works

Voters get two votes: an electorate vote and a party vote.
The electorate vote chooses the member of parliament for a specific electorate.
The party vote chooses the political party that best represents the voter.
Each party has a party list of candidates.
To be elected, a party needs either 5% of the total party vote or to win an electorate seat.
Coat-tailing occurs when a party wins an electorate seat but doesn't reach 5% of the vote, using the seat to bring in more MPs.
Overhang occurs when a party wins more electorate seats than its percentage of the vote justifies.

Seats Calculation

There are 65 electorate seats (17 in the South Island, 7 Maori electorates).
Maori seats were established in 1867.
There are currently 48+ list seats, with extra seats added to address overhang.

Example 2008

ACT: 3.6% of the vote, wins Epsom electorate seat, brings in four MPs on its coattails (5 total).
Te Parti Maori: 2.39% of the vote, wins five electorate seats, results in an overhang.
New Zealand First: 4% of the vote, no seats, misses out altogether.
MMP aims to be proportional, but no voting system is perfect.