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The Executive Flashcards

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1
Q

What is the legislative branch?

A

Parliament (HoR + sovereign/GG)

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2
Q

Who is the executive branch?

A

The people responsible for the general administration of the country through law - PM, Ministers, Public service, sovereign, etc.

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3
Q

Who is the judicial branch?

A

The courts.

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4
Q

Which two branches have significant overlap?

A

The executive and legislature.

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5
Q

Who is the governor general (role + person)?

A

The personal representative of the sovereign and head of state. Currently Dame Cindy Kiro.

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6
Q

How is the Governor General (GG) appointed?

A

Appointed by the monarch on the advice of the PM after the PM talks to other political parties about who will be suitable.

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7
Q

On paper, it seems power flows down from the GG to executive/parliament, but what is the reality?

A

Power largely flows the other way - the ministers have the real power.
Constitutional role of GG has been limited in a couple of ways:
1. GG must remain mutual and impartial (Apolitical)
2. Core constitutional conventions:
1. GG must virtually always follow advice of ministers.
2. GG will only appoint someone as PM if they have majority support in the house.
3. Once PM is appointed, ministers will only be appointed on advice of PM.

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8
Q

What ensures that only the person with majority support of the house is appointed PM?

A

Constitutional convention

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9
Q

Is the PM’s role political or constitutional? (explain)

A

Both.
1. Political
- Figure head
- Their policies get enacted
2. Constitutional
- Determining jobs
- Dictates to GG how to use powers

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10
Q

What is the only legal restriction on who the PM can appoint as ministers?

A

S 6 Constitution Act - outlines who can serve as a minister.
- (must be an MP)

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11
Q

What is the general role of a minister?

A

They are thepivotalbosses of all political areas, ministries, agencies etc within a specific area. This is the area they have overall responsibility of and answerable to issues in that area
- e.g.
- Health
- Fisheries
- Broadcasting
- Etc.

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12
Q

What are the three key parts of a minister’s role?

A
  1. Must implement the government policies of that area
  2. Exercise statutory powers and functions within the ambit of their portfolio
  3. Oversee overall performance of servants and agencies that fall within their portfolio
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13
Q

Who is cabinet?

A

The group and place in which ministers come together and figure out how the country will be run. Not all ministers are members of cabinet - comprised of important ministers.

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14
Q

How big is cabinet?

A

About 20 ministers.

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15
Q

Who decides cabinet size and membership?

A

PM

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16
Q

Why is cabinet the size it is?

A

Allows for good discussion with enough people, but not too big that it cannot function easily.

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17
Q

What dictates how cabinet operates?

A

The cabinet manual

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18
Q

Where the law gives a minister individual law making power, how is this minister expected to exercise this power?

A

Within the constraints of cabinet’s decision making as a whole:
- They are to act in the way cabinet decides as a whole
- Political not legal requirement
- Minister has legal power
- But politically, they are expected to work with cabinet

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19
Q

What is the deal with cabinet confidentiality?

A

Discussions and decisions must remain confidential and within cabinet
- Allows govt to operate in a cohesive and cooperative way.
- Ministers are bound to follow decisions of cabinet. there is an expectation of confidentiality.

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20
Q

What do confidentiality and shared cabinet responsibility reflect?

A

They reflect that cabinet cannot work as an institution if its members cannot trust each other. Think Peters and Seymore - hate each other but mist work together under the confidentiality of cabinet (disputes not public).

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21
Q

What happens in the time period between the election and the appointing of a new government?

A

The previous PM and govt remain in a caretaker role.

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22
Q

Examples of constitutional conventions?

A
  • Sovereign willapointthe GG on the advice of the PM after discussion with other parties
  • The GG will appoint the PM based on whocomandsthe support of the house
  • The GG will always act on advice of ministers, as long as the government continues to enjoy the support of the house
  • If the government loses the confidence of the house, it must resign
  • Cabinet confidentiality
  • Collective cabinet responsibility
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23
Q

What are constitutional conventions (CC)?

A

Important, central rules of the way our government runs. They tell us about who has the powers, how they are to be used, how long, when, for what purpose.

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24
Q

Are constitutional conventions law?

A

No, they are soft law constraints. Cannot be looked at by the courts.

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25
What do CCs reflect?
CCs reflect understanding that there are the constitutionally correct ways to do things.
26
Why are CCs followed?
- People follow conventions because they are conventions - But we know they are conventions because people follow them - Government actors believe they ought to follow this convention due to the good constitutional convention which underpins it. - They will follow conventions as it leads to the bet sort of government for us as a whole. Synical idea: - Breaking them could carry serious political cost - Could open them up to ridicule etc - They threaten to undermine the way our govt works and the way our society runs
27
Why don’t we make CC legal rules?
It would invite the courts to become involved with highly political matters - Inappropriate for courts to be involved? Do we really want them meddling?
28
What is the caretaker convention?
When it is unclear who has the confidence of the house, the existing government remains in place as a caretaker government.
29
What can a caretaker government do/not do?
Cannot: - Make any new policies, etc. Must: - Try to avoid big decisions - If a big decision has to be made they will try choose a temporary option that will be the least binding on the next government. - If not possible, they must talk to other parties and get majority support for the decision.
30
Why do we need public sectors?
NZ is a large country geographically speaking, too big for approx 28 people to run. So there are massive public sectors made up of thousands of people who run the country.
31
What are public sectors?
The parts of society funded by public money. - Hospitals - Schools - Tertiary institutions - Police force - Army - Customs - Civil defence - Etc.
32
What percentage (approx) of all NZ workers work for a public sector?
About 20%.
33
What is the public service?
A bit of government that opporates under a close hierarchical structure with ministers.
34
What are public services often called/named?
- Departments - Agencies - Ministries
35
About how many people work for the core public service?
60,000 (at time of lecture). Actual number needed is debated.
36
What is the role of the public service.
1. To serve the government of the day 2. To serve the public good Overall: To support constitutional and democratic government.
37
How does the public service serve the government of the day?
Allows the current and successive governments to implement their policies, even if current policies directly opposed to previous ones.
38
How does the public service serve the public good?
Help the govt to develop the best possible policies for NZ. Obligation to provide ministers with free and frank advice.
39
What makes the advice by public servants carry some weight?
1. If they do there job correctly, the advice carries some weight 2. Advice can be accessed through the OIA and it is a bad look to not comply
40
Who heads each PS agency?
A chief executive.
41
What must a Chief Executive do?
- Make sure PS works efficiently - Make sure agency does its job in terms of what a good agency should look like - Make sure good advice in prompt timely manner - Daly management - Decide: hiring, promotions, firing
42
How is the Chief Executive appointed?
Appointed on merit by the state services commission.
43
Who does the Chief Executive answer to and what must they do?
The minister - Ensure agency is providing the minister with the info they need and work to carry out the minister’s decisions The House of Representatives - Must provide annual report outlining operation, budget, etc. - Must answer questions from select committees - Must answer questions from HoR Public Service Commission (formally State Service Commission) - Ensure the chief executive and the PS are acting as they should.
44
What do the public service commission do?
- In charge of making sure PS act appropriately and as they should be - Establish rules - E.g. Cannot protest as a member of that PS role, only as an individual - Enforces rules where necessary - Carries out investigations where complaints / allegations made - The PSC are the police of the PS agencies
45
What steps do ministers take to get policies implemented?
- Go to cabinet ask for permission to investigate - If yes - Gives to PS to investigate - PS gives advice - If minister wants to go ahead, public service help to implement new policies - Come up with and ensure new procedures etc are carried out
46
Do public servants always follow rules?
No. See smoke free legislation - Number of public servants leaked info - This is dangerous as ministers might stop trusting the PS - Could have harmful long term consequences for the country as a whole
47
What is the Carltona principle?
Public services can exercise powers given to ministers and when they do so, it as if the minister has taken that action. This is because you can't expect ministers to personally do every role appointed to them through legislation.
48
Are ministers responsible for what people do in their name?
Yes. PM decides what will happen. Personal responsibility - Expected to act in a way that uphold the highest ethical standards Primary responsibility - Don’t use office or powers to benefit yourself, friends or family Vicarious responsibility - If something happens on your watch, may be responsible if: 1. Failure due to underlying policies in place 2. Failure so catastrophically bad the minister has to take some responsibiliy.
49
Where is the Carltona principle from
The Carltona case - House of Lords.
50
What is the rule of law?
Everyone is equal under the law and no one is above the law.
51
What does it mean when we say we should have a government of laws, not a government of men?
- You should not be punished unless you break the law - If you have not broken a law the state should not punish you
52
Why to laws need to be clear and accessable?
- Law should be structured so you know what you can and can’t do - This has impacts on how our law is made because we are a rule of law society
53
When may someone in public power be allowed to do things others can't?
- Police can get warrants and search property - In certain circumstances, police can enter and search without warrant - If emergency situations - See a crime taking place - Danger
54
Why must decisions must be made in a  principally  consistent fashion?
- You should know you are being treated in a fair fashion - Should know you are not having decisions made on a whim - Judicial review – courts examining decisions of the courts, stems out of our societal commitment to the rule of law.
55
Why do we want the executive to have the power to make legally binding decisions?
To do things that help us. - Student loan - Building roads, hospitals, cycleways, etc. - Rebuilding and ensuring continuing operation - Police force able to look for evidence and enter property to arest people - Responding to global threats such as covid-19
56
Where does the exec get this legal power to do these things?
- Statute - Prerogative powers of the crown - Residual freedom - 3rd source
57
What is the most important source of power for the executive?
Statute - these are the main source of executive power.
58
If the exec branch tries to use power in a way not permitted by parliament, who can review this?
The Courts
59
Where do Prerogative Powers of the Crown come from?
Residual powers left over from the monarchy. The Kings and Queens in history could exercise certain powers, the common law recognises this power as still existing in the law as nothing has happened to take this power away.
60
What did the letters patent confer upon the GG?
All powers held by the Queen.
61
Who legally vs in reality gets these prerogative powers?
Legally: - GG Reality: - Ministers
62
What is an example of the GG using Prerogative Powers?
Chris Luxon is PM because the GG used her PP to appoint him as such.
63
How are prerogative powers used internationally?
All of NZ's arrangements with other countries are entered into using the prerogative power.
64
Who is the only body that can override prerogative powers?
Parliament?
65
Can the crown create new PP?
No. These powers exist because the sovereign in history had them. This means that the prerogative powers we have are it.
66
What does PP being common law in nature mean?
1. The courts have supervisory function over them - The courts can declare what they can do 2. Courts can decide if a PP has been  overriden  by statute
67
Where does PP still primarily operate?
Entry into international treaties
68
Does NZ have a direct incorperation of international law into domestic law?
International law needs to be directly incorperated into domestic law to be enfearcible in our courts.
69
How does NZ’s international obligation impact how NZ’s domestic law is applied and understood?
The NZ courts will look to and consider international obligations while interpreting law. This is because they assume that ministers take international law seriously when making decisions. While courts cannot directly inforce international obligations, they can indirectly give them effect.
70
What are the two types of treaties?
Bilateral and multilateral.
71
What is the scrutiny process for multilateral treaties?
1. House gets to see ALL multilateral treaties before signing - If NZ had to join really quick as a matter of urgency, the House should still get to see the treaty after it has been joined 2. If NZ wants to leave a multilateral treaty, the House should see before we decide
72
What is the scrutiny process for bilateral treaties?
The House gets to see any major bilateral treaties that are going to have big impact before signing. This is because most of them are minor in comparison to multilateral treaties.
73
What are treaties sent to house for scrutiny accompanied by?
A National Interest Analysis: - Explains why treaty good / not good bargain for NZ - BUT written by department with interest in the treaty - maybe an issue
74
Which select committee are treaties sent to?
Foreign Affairs and Select Trade Committee. - Report to house on treaty and whether we should enter it
75
What is it called when the exec can act without formal legal power?
Residual / 3rd source power
76
What is residual / 3rd source of power’s use?
It is just a kind of catch all allowing exec to do certain small scale things that it would be silly to not let them do.
77
What are some restraints on the crown's use of third law?
BOR, NZBORA, etc.

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