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Executive Council and the Governor-General

Sun, 12/20/2009 - 22:22 — Adrian MacGregor
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Information on the Executive Council and the Governor-General
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What is the Executive Council?

All Ministers of the Crown are members of the Executive Council.  The Council is presided over by the Governor-General, who is not a member of the Executive Council.

The Executive Council usually meets every Monday, after Cabinet, if there are items for consideration.   Most Executive Council items are first confirmed by Cabinet after consideration by the Cabinet Legislation Committee (LEG).

Matters that require action by the Executive Council include:

  • regulations (which are made by Order in Council);
  • other Orders in Council;
  • proclamations;
  • warrants setting up Royal Commissions and Orders in Council appointing commissions of inquiry; and
  • various appointments, including chief executives of government departments.

The need for Executive Council action on a particular matter will be indicated in the relevant statutory provision by the words "in Council" (that is, "the Governor-General in Council" or "by Order in Council").

The general term "regulations" used in the CabGuide covers all items listed above, although not all of the following steps may apply in the case of appointments.

Most of the above items are drafted in the Parliamentary Counsel Office (PCO).  PCO certifies draft regulations as fit for submission to Cabinet and also arranges printing.  Most items require the approval of LEG and Cabinet before being submitted to the Executive Council.

There are a few items that are drafted in departments and go directly to the Executive Council without going to Cabinet first.  Such items are published or notified in the New Zealand Gazette in the normal way, but do not appear in the statutory regulations series.

The Minister responsible for an item on the Executive Council agenda must be present at Executive Council to answer any queries from the Governor-General, or must have briefed another Minister who will be present.

Once the Executive Council documents have been signed by the Governor-General, they are returned by the Cabinet Office to the Minister's office.  The Cabinet Office will arrange for the making of regulations or Orders in Council to be notified in the New Zealand Gazette.  Departments need to arrange a separate notice if further details need to be gazetted.

Accompanying documentation for regulations going to the Executive Council

The following documents are prepared by the department and/or Minister's office and must be submitted to the Cabinet Office with the paper seeking approval for the submission of regulations to the Executive Council:

The advice sheet must be signed by the Minister, with the Minister's title typed below the signature.  It cannot be the title of an Associate Minister, even if the Associate Minister has delegated authority.  The advice must come from the Minister provided for in the Act.  Another Minister can sign on behalf of the portfolio Minister, above the portfolio Minister's title.  In such cases, the word "for" should be written next to the Minister's title.

If the Governor-General is overseas, then the Administrator of the Government fulfils the Governor-General's functions.  The Administrator of the Government is the Chief Justice of New Zealand.  In such cases make sure the advice sheet is addressed to the Administrator, rather than the Governor-General.  The Cabinet Office advises Ministers' offices and departments when the Governor-General is going to be overseas.

When both the Governor-General and the Chief Justice are overseas, the next most senior member of the judiciary acts as the Administrator of the Government.

The following documents are prepared by PCO and ideally should be submitted to the Cabinet Office with the paper.  PCO endeavours to provide these documents to departments or the Minister's office prior to the deadline, but this is often not possible - for example, because of last minute drafting issues.  In such cases, PCO will forward the documents directly to the Cabinet Office.  Copies of regulations arriving after the deadline mean that the Cabinet Office may be unable to process and distribute the paper to Ministers on time.  Where the copies of the regulations arrive after the deadline, the paper will be counted as being late.

  • Signature copy of regulations - if the item was drafted by PCO, the signature copy will be printed on buff coloured, high-grade paper.  It is not a requirement that buff coloured paper be used but the paper must be high-grade.
  • Certified copy of item - if the item was drafted by PCO, they will stamp a copy of it with "Certified in order for submission to Cabinet" and it will be signed by a parliamentary counsel.  The PCO file number at the top of the certified copy must match the file number written on the back of the signature copy with the PCO stamp. If the item was drafted by a department, the office solicitor must certify it as being in order for submission to Cabinet.
  • Copies of the regulations - the Cabinet Office requires 50 copies plus the certified copy for the LEG meeting. In the rare case where the regulations are to be submitted direct to Cabinet, 35 copies plus the certified copy are required.

Items direct to Executive Council

There are very few items that go directly to the Executive Council without first being approved by Cabinet.  These items are usually drafted in a department and:

  • will not be included in the statutory regulations series; and/or
  • affect only particular local districts rather than the country as a whole; and/or
  • are required by law to give effect to a determination of a statutory body (for example, a determination of the Local Government Commission under the Local Government Act 1974).

Since these items are not checked and certified by the Parliamentary Counsel Office and are not considered by Cabinet, they must be submitted to the Cabinet Office with a covering memorandum signed by the department's office solicitor.  The memorandum must state that the item is to be submitted directly to the Executive Council, certify that the item is ready for signature and note any other relevant information.  These documents must be delivered to the Cabinet Office by 10.00am on the preceding Thursday for a Monday Executive Council meeting.

Other documents for the Governor-General's signature

The Cabinet Office provides a collection/dispatch service for Ministers' offices for delivering documents to the Governor-General.

A regular delivery takes place between Government House and the Cabinet Office at 2.00pm each day.  Documents to go to the Governor-General are to be hand-delivered to the Cabinet Office reception on the 10th floor of the Beehive.

The function of the Cabinet Office is limited to relaying the documents to Government House and keeping a record of them.  Responsibility for the accuracy of the documents lies with the Minister's office.

To avoid the risk of documents being damaged in the post, Government House has emphasised that documents should be sent through the Cabinet Office, not by mail.

Documents for the Governor-General must be of a high standard.  Some points to check are:

  • Check the spelling thoroughly, especially names, including the names of appointees, the Governor-General and/or the Administrator of the Government.
  • Fill in the date in the top right hand corner when the Minister signs the advice sheet.
  • The Minister must sign the advice sheet with the Minister's title typed below.
  • Type the word "Appointed" or "Approved" towards the lower left hand corner with room for the Governor-General to sign and date.
  • The warrants or approvals attached to the advice sheet should be signed by the Governor-General before being counter-signed by the Minister.
  • These documents are to be on good quality paper.  Photocopying paper is not acceptable.

See the Tools > Examples section of the CabGuide for sample advice sheets for appointments made outside of Executive Council.

In exceptional circumstances, if the Governor-General's signature is required urgently, ministerial or departmental staff, subject to prior arrangement with Government House, may take the documents to Government House personally.

See the section of the CabGuide on the procedure for making appointments for details on the process involved in appointments made by the Governor-General.

Documents for the Governor-General's signature must be accompanied by a briefing note signed by the Responsible Minister.  The note should state the action the Governor-General is being advised to take and briefly state the reasons for it. For example, for land proclamations, the note should give information about the intended purpose of the land, a general description of the land location and any other background information it would be useful for the Governor-General to know.  For appointments, a CV should be attached.

The Seal of New Zealand

The Governor-General has delegated responsibility for the custody of the Seal of New Zealand to the Clerk of the Executive Council.  If a document is to be sealed with the Seal of New Zealand, the relevant department must arrange for it to be affixed by the Honours Secretariat, Cabinet Office, Department of the Prime Minister and Cabinet.

Documents that require the Seal of New Zealand to be affixed to them include warrants for the appointment of Ministers of the Crown and members of the Executive Council, warrants for the appointment of judges, commissions of officers of the Armed Forces, and Letters Patent establishing Royal Commissions.  All documents to be sealed must first be signed by the Governor-General (or the Sovereign), then sealed, and finally countersigned by a Minister of the Crown.

Related pages

The approval process for regulations

The format for a paper seeking approval for the submission of items to the Executive Council

The notification of regulations and Orders in Council in the New Zealand Gazette