Reports and Publications

Within this section

Hunn Review: Annexes (30 September 2002)

Contents | Previous | Next

Annex F

Legal Analysis of New Zealand Defence Legislation
(Paper provided by Professor Matthew Palmer, Centre for Public Law, Victoria University of Wellington)

Constitutional and Legal Context

  1. Some rather ancient (and possibly boring) English constitutional history is outlined below, culminating in far more exciting New Zealand developments. This historical context is presented in the conviction that, in order to understand the changes to New Zealand defence legislation since the 1960s, it is important to understand the historical legal and constitutional dynamics that have led to and shaped those rules and structures.
Constitutional and Legal Historical Developments
  1. The early history of the development of English constitutional and legal rules concerning the military are intimately linked to the royal prerogative of the Crown. The successful development of the institution of the monarchy in feudal Europe was directly related to the coercive military power that the monarchy was able to wield. The royal prerogative was implicitly understood to be concerned with the defence of the realm, maintenance and direction of foreign relations and the power to raise an army.
  2. Over time, the British Parliament developed its constitutional role in challenge to the power of the Crown and Executive government. The English civil war of the seventeenth century exacerbated tension between different branches of government over the control and accountability of the military. Articles of War were issued by Charles I in 1639 to discipline the army and by the Long Parliament to control the conduct of the navy. The post-restoration Militia Act 1661 and the Naval Discipline Act 1661 reaffirmed the Crown's control of the militia and sought to regulate discipline in the naval forces.
  3. The Glorious Revolution of 1688-89 effected an important constitutional turning point. The Bill of Rights of 1688 (Eng) (which is still part of New Zealand law by virtue of the first schedule of the Imperial Laws Application Act 1988) sought to impose limits on the Executive's ability to use the coercive force of the military. This was partly achieved by the assertion of parliamentary control over the levying on taxes, thereby attacking the Crown's means of funding military activities. Even more specifically, however, article one of the Bill of Rights Act 1688 provided that Parliamentary authority was required to maintain a standing army in peacetime: "That the raising or keeping a standing army within the Kingdome in time of peace unlesse it be with consent of Parlyament is against law."
  4. A Mutiny Act was passed annually from 1689 in order to provide the legislative authority for the discipline for and maintenance of a standing army. 1 The annual nature of this legislative authority was followed in New Zealand until 1955, with the annual passage of the New Zealand Army and Air Force (Annual) Act.2
  5. Provision for the maintenance of defence forces in New Zealand began early. The royal prerogative was active in this regard. In 1845 an Ordinance was made "for raising a militia within the Colony" (Militia Act 1845). This Act made all men between the ages of 18 and 60 liable to compulsory militia training and conscription, provided they were "not an aboriginal native" (Militia Act 1845, s 7). A Native Force Ordinance followed in 1847.3 The militia was involved, together with imperial troops, in the wars with Maori.
  6. The New Zealand Governor held the title of Commander-in-Chief of the Dominion of New Zealand.4 The constitutional significance of this position had emerged in the United Kingdom in 1793 when a General Commander-in-Chief began to act as the King's delegate, exercising his powers of command over the armed forces.5 Attempts by Governor Grey to take personal command of the Imperial troops stationed in New Zealand included leading the troops into battle against the express wishes of the British General who commanded them in 1847.6 The powers of the Governor as Commander-in-Chief were finally limited to a right of general direction of the troops and no power of directing field operations.7
  7. Matters of war and internal defence continued to be dealt with by the British Government through the Governor until Imperial troops were withdrawn by 1870.8 As late as 1892 the Instructions to the Governor bound him to reserve bills concerning the discipline of royal forces for the Queen's pleasure, rather than assent to them (authorised by section 57 of the New Zealand Constitution Act 1852).9
  8. The royal prerogative continues to constitute the basis for the terms of the relationship between the Crown and the armed forces.10 The armed forces are an instrument of the Crown to which its members swear an oath of allegiance. "The defence prerogative is necessarily broad and unchecked and reserves to the Crown an unreviewable discretion as to what the national interest requires." 11 This prerogative is exercised by the Governor-General as the Crown's representative in New Zealand. The Governor-General is still Commander in Chief, as set out in the 1983 Letters Patent.12 This title is symbolic of the relationship between the military and the Crown and does not confer additional powers on the Governor-General. Alison Quentin-Baxter, in reviewing the Letters Patent in 1980 described the title as being "devoid of substantive effect".13 The title remains in the 1983 Letters Patent due to "the importance still attached in New Zealand, particularly within the Armed Services, to the naming of the Governor- General as Commander-in-Chief."14
  9. Two factors have dramatically affected the exercise of the prerogative. First, the powers of the Governor-General have come to be required, by strong constitutional convention, to be exercised on the advice of his or her Ministers.15 Ministers, drawn from Parliament, now direct the powers of the Crown. Second, statute has replaced most relevant aspects of the prerogative in relation to defence matters. As a result of these factors the Governor-General's powers are now almost purely ceremonial. The main vestige of the military role of Commander-in-Chief is the Governor- General's ability to hear military complaints and the variety of military inspections he or she undertakes.
  10. Consistent with general constitutional principle, the political responsibility for defence matters lies with the Cabinet as a collective and the Minister of Defence individually. The Minister of Defence has ministerial responsibility for defence matters in New Zealand. He or she is responsible to Parliament for the formulation and implementation of defence policy by Executive government. Except as otherwise required by law, the convention of collective responsibility gives Cabinet as a collective the power to override the Minister. Given the potential significance of military crises the Prime Minister can also become more closely involved in defence matters than in other portfolios.
  11. It is important to note that the precise nature of the accountability relationship between the Minister and the military has been governed in law by a succession of statutes, as examined below. In the ebb and flow of these legislative changes, the key battles for control appear to have been between the military and elected Ministers, between the military and civilian advisers to Ministers, and between the different Services.
Summary of Key Constitutional Principles
  1. The key constitutional principles governing the New Zealand military, as they have evolved through history can be summarised as:
    • The Governor-General still has the ceremonial position of Commander in Chief, reflecting the historical connection of military power with the monarchy;
    • An important aspect of the Bill of Rights of 1688 (Eng) was the assertion by Parliament of its authority to limit the ability of the Crown to control the coercive force of the military;
    • The early establishment of the New Zealand military by statute;
    • Parliament wrested control of Executive Government from the Crown. Executive government is now directed by Cabinet as a collective and by each Minister of the Crown individually. The Minister of Defence is politically responsible for defence matters in New Zealand.
    • The precise accountability relationships in New Zealand between the Minister of Defence and the military, between the military and civilian advisers to Ministers, and between the different Services have been governed by a succession of statutes.

New Zealand Defence Legislation Since 1964

  1. The detailed comparative analysis of the provisions that underlie later discussion of key aspects of the legislative regimes for defence since the mid 1960s is provided in Appendix B to this Annex. Appendix A provides a diagrammatic representation of the organisational structure of accountabilities of defence officials and institutions under each legislative regime as well as diagrammatic representation of the key changes between them.
  2. In summary, three significant changes are apparent in the legislative regimes for New Zealand defence since the mid-1960s:
    • The governance of the Armed Services by different Service Boards was amalgamated into a single Chiefs of Staff Committee in 1971. The legal responsibilities of the (civilian) Secretary of Defence and (military) Chief of Defence Staff became more blurred as they acquired joint functions in relation to policies, planning, coordination of Ministry activities, definition of Ministry organisation and functions, and the execution Defence Council decisions;
    • The Defence Council was abolished in 1990 and the powers and authority of the Minister of Defence were given emphatic legislative emphasis. The Council had been:
      • responsible as a collective body for the administration and command of the Armed Forces and the formulation and recommendation of policy; and
      • composed of Chief of Defence Staff, Secretary of Defence, Chiefs of Staff of the three Services and chaired by the Minister of Defence (who had a veto power over important matters of principle, policy or administration).
    • The single Ministry of Defence was split in 1990 into the (predominantly military) New Zealand Defence Force, headed by the Chief of Defence Force with significant powers and responsibilities, to undertake operational functions; and the (predominantly civilian) Ministry of Defence, headed by the Secretary of Defence, to undertake policy, purchase and review functions.
Defence Act 1964
  1. Appendix B provides a detailed comparative analysis of the provisions of the 1964 Act. In summary the key features of the Act are outlined in the following paragraphs.
  2. Under the 1964 Act, each of the single Services retained its own Service Board that provided a significant part of the command and administration of the Services. The membership of each of these Boards included the Minister of Defence and the Deputy or Associate Secretary of Defence, but not the Chief of Defence Staff.
  3. The Chief of Defence Staff was the principal military adviser to the Minister. He was responsible for convening and chairing a Chiefs of Staff Committee to facilitate cooperation between the individual Service chiefs.
  4. This Act established the Ministry of Defence, comprising the New Zealand Naval Forces, New Zealand Army, Royal New Zealand Air Force, and civilians. It thereby attempted to bring the three single Services together into a more unified structure.
  5. The Secretary of Defence was deemed to be the Permanent Head of the Ministry for the purposes of the State Services Act 1962 and Public Revenues Act 1953. The Secretary was to coordinate the business of the Ministry, including financial planning and expenditure, inspect the administration of the Services and act as principal civilian adviser to the Minister (but was not responsible for the command or administration of the Services).
  6. The Defence Council facilitated cooperation and consultation between the key officials and the Minister. The membership of the Council included each of the Chiefs of Staff, the Chief of Defence Staff, the Secretary of Defence and was chaired by the Minister of Defence. In addition to its role as defence policy adviser to the Minister, the Defence Council was responsible for the administration and command of the Defence Forces.
  7. The Minister of Defence was the chair of the Defence Council and "administered" the Defence Act (section 3). The Minister had a veto power over a decision of the Defence Council to which he or she had not been a party or had not assented in writing if it was "an important matter of principle or policy or administration" (section 12).
  8. The legislation was expressly stated not to derogate from the Governor-General's existing powers, duties and obligations as Commander in Chief of New Zealand.
Defence Act 1971
  1. The main, change effected by the 1971 Act was to abolish the Service Boards in favour of reliance on the Chiefs of Staff Committee. Under the 1971, the Service Boards were abolished. The Chiefs of Staff Committee was given legislative expression, comprising the Chief of Defence Staff and each Chief of Staff, and conveying agreed collective advice to the Minister (with each member having a statutory right to request the CDS to convey a different view to the Minister).
  2. The functions of each Chief of Staff were spelt out in more detail (primarily commanding their respective Service and being responsible to the CDS for the implementation of policies, plans and programmes). Each Chief of Staff had the power to "make such representations as [the Chief of Staff] considers desirable or necessary to the Minister" or in exceptional circumstances to "any higher authority", subject only to a requirement for the Chief to notify the CDS (section 27(4)).
  3. The Chief of Defence Staff retained his or her previous functions and powers as well as acquiring the statutory power, under the Defence Council, to command the Navy, Army and Air Force through the relevant Chiefs of Staff. The CDS's role was blurred with that of Secretary of Defence as they acquired joint functions in relation to:
    • execution of Defence Council decisions,
    • coordination of the Ministry's activities,
    • coordination of the preparation of policies, plans and programmes;
    • reviewing policies, functions, organisation and procedures of the Ministry; and
    • ensuring the organisation and functions of the Ministry are clearly defined and adequately controlled and supervised.
  4. There was little change to the legislative provisions related to the Ministry of Defence. The Secretary of Defence's role was beefed up a bit in legislation but also blurred with that of the Chief of Defence Staff as noted above. The Secretary also became Executive Secretary of the Defence Council. On the passage of the State Sector Act 1988 the Secretary was denoted as Chief Executive rather than Permanent Head and acquired statutory responsibility for "the efficient administration, control and accounting of all expenditure and revenue in the Ministry" as well as other specified responsibilities.
  5. There was little change to the legislative provisions related to the Defence Council, although its 1964 role of "advising the Minister on important matters of policy" was altered to "assisting the Minister in formulating and recommending defence policy".
  6. The Minister of Defence's role was similar to before but more assertive as the Ministry was stated to be "under the control of the Minister of Defence" rather than under the 1964 Act where the Act is merely "administered by the Minister of Defence."
  7. The 1964 legislation had not derogated from the Governor- General's unspecified existing powers, duties and obligations as Commander in Chief of New Zealand. By contrast, in addition to recognising the Governor-General's powers as Commander in Chief, the 1971 legislation noted his or her "power to raise and maintain armed forces to defend or protect the interests of New Zealand, to provide assistance to the civil power in New Zealand or elsewhere in an emergency, to provide any public services required by the Government, and to comply with New Zealand's international treaty obligations" (section 4). We consider that little, if any, substantive effect turned on this codified statement of the prerogative power.
Defence Act 1990
  1. The main changes effected by the 1990 Act were to split the Ministry of Defence into the New Zealand Defence Force and the Ministry of Defence, and to abolish the Defence Council.
  2. The Chiefs of Staff Committee was put under the control of the Chief of Defence Force (CDF) rather than the Defence Council. The CDF was given the power to determine the functions, duties and powers of the Committee. The right of each Chief of Staff to make representations to the Minister is retained, still being subject to the requirement that the Chief notify the CDF (section 28(6)).
  3. The title of Chief of Defence Staff was replaced by Chief of Defence Force (CDF) and the powers of the position beefed up though the Minister was given the express duty of setting terms of reference for the CDF. The CDF became responsible (to the Minister) for functions that effectively constitute him or her as chief executive of the new organisation, the New Zealand Defence Force, with the power to issue "Defence Force Orders". The CDF was given the power to determine the functions, duties and powers of the Chiefs of Staff Committee. The CDF's joint functions with the Secretary of Defence were limited to consultation with each other "on any advice on any major matters of defence policy that is to be given by either to the Minister". The Minister of Defence was given the express duty to set the "terms of reference" for the CDF (these are the terms and conditions of appointment, duties and obligation and the manner in which the Government expects those duties and obligations to be carried out).
  4. Following the orthodoxy of not establishing government departments by statute, the Ministry of Defence was no longer specified in the Defence Act although it became listed in the fIrst schedule to the State Sector Act 1988. The New Zealand Defence Force was stated to comprise the Armed Forces of New Zealand and civil staff. The Armed Forces raised and maintained by the Governor-General are also stated to continue to comprise specified elements of the Naval Forces, Army and Royal New Zealand Air Force. The provisions of the Public Finance Act 1989 are stated to apply to the New Zealand Defence Force as if it were a government department (section 104).
  5. The Secretary of Defence was denoted as a chief executive under the State Sector Act. The Secretary's role as the principal civilian adviser to the Minister (and other Ministers) is preserved but his or her formulation of advice on defence policy and preparation of a defence assessment is to be undertaken in consultation with the CDF. The Secretary is given explicit responsibility for procurement, replacement and repair of military equipment and the conduct of assessments and audits of the Defence Force and Ministry.
  6. The Defence Council was abolished.
  7. Ministerial authority over the Armed Forces is emphatically reaffirmed in the long title of the Act.16 The Minister of Defence's previous power to control the Ministry now becomes the power to control the New Zealand Defence Force through the Chief of Defence Force. The Minister also acquires powers to:
    • determine whether the Armed Forces shall be used in industrial disputes or assist the Police in an emergency;
    • authorise the maximum number of staff in the Armed Forces;
    • require the Secretary of Defence and Chief of Defence Force to consult formally with each other on advice from either to the Minister; 17
    • set the terms of reference for the Chief of Defence Force.
  8. The Governor-General's powers were no longer expressed to include raising and maintaining armed forces to provide any public services required by the Government.
  1. This precedent was also followed with the establishment of the Royal Air Force, with the passage of the Air Force (Constitution) Act 1917.
  2. A separate New Zealand navy was not maintained until the latter part of this period.
  3. Ministry of Defence "A Brief History of New Zealand Service Law" Manual of Anned Forces Law vol 1, ch 1, 22.
  4. Letters Patent 1907.
  5. Ministry of Defence "A Brief History of New Zealand Service Law" Manual of Anned Forces Law, vol 1, ch 1, 1-21.
  6. Directorate of Legal Services The Legal Fundamentals of Armed Forces Operations {Draft} (Ministry of Defence, Unpublished, 2000) para 1.12.
  7. J. Hight and H. D. Bamford The Constitutional History and Law of New Zealand (Whitcombe & Tombs Ltd., Christchurch, 1914) 373-4.
  8. Phillip Joseph Constitutional and Administrative Law in New Zealand (2 ed, Brookers, Wellington, 2001), 104.
  9. Joseph, above, 104.
  10. See in general Halsbury's Laws of England (4 ed, Butterworths, London, 1983) vol 41, Royal Forces, paras 1-4 and 11.
  11. Joseph, above, 629.
  12. Letters Patent Constituting the Office of Governor-General of New Zealand (SR 1983/225,
    amendment SR 1987/8).
  13. Alison Quentin-Baxter Review of the Letters Patent 1917 Constituting the Office of the Governor-General of New Zealand (Cabinet Office, Wellington, 1980) 25.
  14. Alison Quentin-Baxter, above, 25. Quentin-Baxter notes that the title of Commander-in- Chief "is a reflection of the role, if not the actual title, of the Crown in relation to the armed forces." This point is reinforced by the fact that in the Defence Act 1990 section 5 confers the power to raise and maintain the armed forces upon the Governor-General and not on the "Commander-in-Chief' .
  15. Cabinet Manual 2001 (Cabinet Office, Wellington, 2001) 8. In extraordinary circumstances there are acknowledged exceptions to this in the Governor-General's reserve powers. The exercise of these is usually also dictated by convention. The reserve powers would not enable the Governor-General to exercise personal command powers over the military except in the most extreme of cases when constitutional niceties are unlikely to be fully observed.
  16. This was referred to by Justice Heron in striking out the challenge to the abolition of the Skyhawks (Curtis v Minister of Defence (20 November 2001) High Court Wellington, CP253/01,10-11.)
  17. This provision was referred to in the second reading debate on the Bill in 1990 by opposition MP Hon Doug Kidd in the following terms: "When the Government. .has to write law to require two of the most senior people in the service of the Crown to be marked in on a formally organised basis to talk to each other, the question has to be asked whether the Government has it right." (29 March 1990) 506 NZPD 1116).

Top | Previous | Next

Page contents Accessibility (list of Access Keys) Sitemap Homepage About us Defence Policy Acquisition Activities Reports & Publications Links Contact Us Search box New Zealand Government websites homepage