Noel Cox: Governor-General role needs update

Noel Cox

The notion of an elected Governor-General is not as strange as it may at first seem. There are several contemporary examples of elected vice-regal representatives, though none of direct election by the people. In the Solomon Islands the Governor-General is elected by parliament, and in Papua New Guinea they are nominated by parliament. Either model could be followed by New Zealand.

Examples from the past include some of the North American colonies (the so-called chartered colonies), where the governors in the 17th and 18th centuries were elected by the legislature rather than appointed by the Crown.

Whether this led to their having a greater and more effective role is uncertain. In any event, they survived being swept away by the American Revolution.

In the 19th century there were proposals for the election of the Governor-General in parts of the British Empire (what we now call the Commonwealth), but none of these were put into effect. None of this means we can't consider the option for New Zealand, even if we then reject it as unworkable or unnecessary.

The starting point should perhaps be establishing a clear rationale for such an innovation. Clearest may be a desire to remove or limit the Prime Minister's discretion. Current practice leaves the choice of Governor-General largely in the hands of the Prime Minister, though there is a requirement that the Leader of the Opposition is consulted. In the past the Queen also took an active role in the process. She may still do so, but it is not clear whether recent Prime Ministers have allowed her to express her views before they make their own choice of nominee.

If the Governor-General were nominated or elected by Parliament or the electorate, the role of the Prime Minister would be greatly reduced as would, to a lesser extent, that of the Queen.

The effect, as we have seen elsewhere, could extend well beyond the elimination of a Prime Ministerial monopoly. If the choice of Governor-General lay in the hands of Parliament, rather than being an exercise of the royal prerogative on the advice of the Prime Minister, it risks becoming a prize for politicians to fight over.

If election were by the general public, or by some form of electoral college (similar to the way the United States President is elected), then it would do much to increase the independence and authority of the Governor-General.

This in turn could lead to some interesting and important ramifications. The office would potentially becomes politicised (due to its link with a particular party), something which is currently avoided by the twin devices of leaving the Governor-General with primarily ceremonial duties, and taking the appointment process entirely out of the public arena.

Second, and perhaps more significantly, an elected Governor-General (and especially one elected by the people rather than by politicians) would be a potential threat to the status and authority of politicians. Such a Governor-General would have a greater democratic mandate than the politicians, since they would be elected by the people, and not merely exist as the appointee of a political party or the choice of a single electorate. This mandate would entitle the Governor-General to argue they had the support of the people to advocate policies which might be at odds with those of the government. Again, whether this would be desirable or not is a matter for the people to decide, but may not be popular with Ministers, or Members of Parliament.

It suits both for the Governor-General to have a low profile and to be dependent upon them. Currently the Governor-General normally acts only on the formal advice of Ministers of the Crown, and is unwilling to venture into any political controversy.

One might speculate on the real motivation for suggestions that we elect the Governor-General. Could it be a cunning ploy to introduce a republic by stealth? Possibly, though the Governor-General would remain the representative of the Queen, whether they were formally nominated or elected by parliament or by the electorate. Could it be to provide a counterweight to the perceived dominance of the political executive (the Prime Minister and the Cabinet)? Perhaps there are several possible motivations. But whatever they might be, any process by which the appointment of Governor-General passes from the hands of the executive to Parliament or the electorate, raises concerns over the constitutional balance.

Currently the Governor-General is perceived as having a mainly ceremonial function. They do not have an active political role because they are appointed by and responsible to the Queen, on the advice of the Queen's First Minister, the Prime Minister, and, like the Queen, are above party politics. Giving the Governor-General a new and separate source of democratic legitimacy could result in a separation between Ministers and Governor-Generals. Rather than the Governor-General having the right to be consulted, the right to advise, and the right to warn Ministers, the Governor-Generals would have their own independent popular mandate, and become potential political rivals of the Ministers.

Rather than politicising the office of Governor-General by making it an elected office, steps could be taken to raise its profile. Despite some suggestions to the contrary, it is doubtful that the public profile of the Governor-General is higher now than it has been in the past. Indeed it seems likely that the opposite is true. For instance, until a few years ago, the main public exposure the Governor-General received was during annual Waitangi Day events. They were welcomed to Waitangi as the Queen's representative, receiving significant media attention. Yet recently media attention has turned to the Prime Minister. Let attention focus again upon the Governor-General, when she is carrying out the duties for which she was appointed.

The profile and role of the office can be expanded without turning it into an elected position, which would introduce additional uncertainties in a country which relies heavily on a finely-balanced constitutional and political arrangement. Attempts to raise the political profile of the Governor of Tasmania recently showed how dangerous these changes can be. Richard Butler was cast as a US-style state governor, a political figure. This attempt to distort the office led to great embarrassment to all concerned. We don't need to follow this sort of example.

* Noel Cox is Associate Professor of Law at the Auckland University of Technology