The Control of Advice to the Crown and the Development of Executive Independence in New Zealand

Abstract

In the absence of a widespread political and legal consensus about the sources of legislative authority, the traditional Diceyan view of parliamentary sovereignty perhaps fails to adequately explain the political reality of New Zealand's undoubted political independence. A better explanation may be that the Crown, rather than Parliament, and in conjunction with the Treaty of Waitangi, is the source of an autochthonous constitutional order. This is grounded in symbolism and administrative practice, rather than technical rules of sovereignty or authority. Indeed, it was the flexible application of common law principles concerned with the prerogatives of the Crown, and the operation of constitutional conventions relating to responsible government, rather than the establishment of legislatures per se, that led to the development of independent states from colonies. Practical executive or political independence came before formal legislative and judicial independence. This general observation is as true for New Zealand as it is for the other 'old Dominions'. Legal changes tended to follow political changes, and this is seen especially in the considerable distortion which arose between the powers conferred upon the Governor-General by the letters patent constituting the office, and the powers actually exercised. Imperial constitutional law was developed not in the courts so much as in the opinions of the law officers of the Crown. It was the practice that evolved out of these opinions which eventually influenced the courts. They followed, but did not invent, doctrines such as that of colonial legislative territoriality. As a consequence of this process, constitutional writers tended to become distracted by abstract concepts such as the unity of the Crown. This was responsible for what Zines called 'decades of distorted reasoning, intellectual gymnastics and a blindness to reality'.