Issues concerning the appointment of the head of state

Emeritus Professor Les Holborow accepts the case for New Zealand becoming a republic, but suggests a measured process for appointment of the head of state.

Appointment and removal

I begin by noting that the method of appointment of a Head of State is important not just as a question of effective process, but because disagreements about it can prove vital in determining whether any proposed change to a republic is supported at all.

Events in Australia in 1999 provide a salutary lesson that if the proposed process is seen as unduly controlled by politicians it can undermine the case for a change that otherwise appears to have public support. This extends to the issue of dismissal as well as the appointment of the Head of State.

Apparently, in Australia, the power given to the Prime Minister to dismiss a President who had been appointed by a parliamentary process was seen to be particularly objectionable. No doubt the fact that the appointment was to be made after nominations were sifted by a Presidential Nominations Committee, appointed by the Prime Minister, added to this perception of undue executive influence.

The Palmer/Butler proposal for appointment of the Head of State gives the role to Parliament, with MPs having a free vote. Nothing stronger than a majority of votes cast appears to be required. Dismissal can occur only by an address to Parliament, and is confined to the grounds of “misbehaviour or incapacity to discharge the functions of office”.

The appointment process seems to me to require some further elaboration. I would suggest for discussion a provision for a nominating committee chaired by the Speaker on which at least the Government and Opposition and possibly any other party meeting the MMP quota for list seats in Parliament is represented.

This would provide for the prior vetting of record and reputation, and the obtaining of consent from a favoured nominee which appear to be highly desirable for an appointment of such symbolic significance. Potential issues of suitability could then be discussed in circumstances of confidentiality rather than being debated in the House in the first instance.

I also suggest some debate about how far such a process should be embodied in legislation.

As for dismissal, I can see the force of specifying the grounds. However the term ” misbehaviour” strikes me as rather wide as a potential ground. I’d have thought that something like ” behaviour seriously inappropriate to the office” would be more precise.

But I’d welcome comment from lawyers about established legal standards in similar contexts.

Nomenclature: the need for a te reo title

I accept the case made in the Palmer/Butler monograph that it is preferable to use the term Head of State rather than President or Governor-General in discussing this topic. I would however add that it is highly desirable to consult Māori to establish what term from the te reo repertoire is best used in conjunction with this expression to fully characterise the role.

Head of State’s functions: overseas representation

One final point. Having travelled to Gallipoli with a Governor-General who was representing New Zealand and heard an account of the successful visit of another, I would suggest that representing the country overseas from time to time be added to the roles of the incumbent. At the moment, the draft gives this role only to the PM.

 


 

Emeritus Professor Les Holborow was Vice-Chancellor of Victoria University of Wellington from 1986 to 1998. He has served as the National President of the New Zealand Institute of International Affairs and was the Queensland State President of the Australian Institute during his previous appointment as Professor of Philosophy at the University of Queensland. His philosophical publications include articles on the theory of justice and human rights. He studied at the Universities of Auckland and Oxford, and has an Hon. LLD from Victoria.

 


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