2.15 The Letters Patent (see the appendix), issued under the Sovereign’s prerogative power, empower the Governor-General:
…to constitute and appoint under the Seal of New Zealand, to hold office during pleasure, all such Members of the Executive Council [and] Ministers of the Crown … as may be lawfully constituted or appointed by [the Sovereign].
2.16 In appointing Ministers, the Governor-General acts on the advice of the Prime Minister. Practical and political considerations, such as internal party rules or the terms of a coalition agreement, may affect the process by which the Prime Minister reaches decisions on the advice to be given to the Governor-General. The primary legal restriction, as set out in the Constitution Act 1986, is that all Ministers of the Crown must be members of Parliament (except in some transitional circumstances—see paragraphs 1.31, 6.49, and 6.52).
2.17 All Ministers must be appointed as members of the Executive Council before they are appointed as Ministers. The Governor-General signs a warrant of appointment for each member of the Executive Council, and separate warrants for each ministerial portfolio. Each member of the Executive Council must take the relevant oaths or affirmations set out in legislation.
2.18 The Governor-General formally effects a Minister’s departure from office by accepting the Prime Minister’s advice on the Minister’s resignation or dismissal from, or the revocation of appointment to, both individual portfolios and the Executive Council. As in the appointment of Ministers, it is a constitutional convention that the Governor-General acts on the advice of the Prime Minister in dismissing Ministers, accepting their resignations, or revoking their appointments.
2.19 Prime Ministers have advised the dismissal of Ministers for various reasons. Procedurally, all that is required is for the Governor-General to execute an advice sheet that has been signed by the Prime Minister. The Prime Minister is not legally required to give grounds for dismissing a Minister.
2.20 Following a general election, irrespective of the outcome and even when the composition of the government has not changed greatly, it has been the practice for all Ministers from the outgoing administration to resign as Ministers and from the Executive Council. This formal process, which marks the end of the administration, takes effect at the time of the appointment of the new administration (see paragraph 6.48).
2.21 Section 7 of the Constitution Act provides that any function, duty, or power of any Minister of the Crown may be performed by any member of the Executive Council. (The exception is where the context requires otherwise; for example, see paragraphs 4.10 – 4.11 on the Attorney-General’s law officer functions.) Section 7 of the Act provides flexibility in the way that ministerial functions are carried out. For example:
- if Ministers are overseas, unwell, or temporarily unavailable, other Ministers can act for them (including signing Cabinet papers and other official documents) (see paragraphs 2.41 – 2.45);
- if there is a temporary vacancy in a portfolio, the Prime Minister may ask a Minister to carry out the responsibilities of the portfolio until a formal appointment is made; and
- if a ministerial title (as specified in legislation) is discontinued, the Prime Minister may authorise a Minister with a different title to carry out all the ministerial functions and powers relating to the discontinued title as provided in that legislation (subject to any statutory provision preventing such a change) (see paragraph 2.34(d)).
2.22 Collectively, Ministers direct the executive branch of government. Ministers:
- are members of the Executive Council (see chapter 1);
- formally advise the Governor-General—either individually, or collectively in the context of the Executive Council (see chapter 1);
- take significant decisions and determine government policy collectively, through the Cabinet decision-making process (see chapter 5);
- exercise statutory functions and powers under legislation within their portfolios, in the collective Cabinet decision-making context (see chapter 5);
- determine both the policy direction and the priorities for their departments (see chapter 3);
- in most cases have financial responsibilities (see paragraphs 2.24 – 2.27);
- are supported by and (to varying degrees, depending on the nature of the entities concerned) direct officials in the state services and the wider state sector (see chapter 3);
- are members of Parliament (see section 6(1) of the Constitution Act) and are accountable to the House for their policies, their own performance, public spending, and the performance of entities within their portfolios; and
- have a political role in maintaining government stability, which requires maintaining close working relationships with all other parties as issues arise.
2.23 Ministers' powers are derived both from the common law powers of the Crown (including the prerogative) and from statute. Legislation may confer a power on a specified Minister or on the Minister authorised by the Prime Minister as responsible for administering the Act. See paragraph 2.34(d) for further information about ministerial responsibility for legislation.
2.24 Portfolio Ministers in most cases have responsibility for appropriations in one or more Votes, which are administered on their behalf by their departments. Ministers seek authority from Parliament for their appropriations, each of which is limited by type, amount, scope, and period. Ministers are responsible for decisions on the spending from within these appropriations on:
- outputs provided by their departments, Crown entities, and other bodies;
- other operating expenses, such as social welfare benefits or official development assistance; and
- capital expenditure.
2.26 Under the Public Finance Act 1989, “responsible Ministers” are responsible to Parliament for the financial performance of the departments in their portfolios and for protecting the Crown's interest in those departments. Similarly, under the Crown Entities Act 2004, “responsible Ministers” are responsible for the Crown's interests in, and relationship with, Crown entities in their portfolios (see paragraphs 3.35 – 3.38).
2.27 Some departments administer only one Vote and report to only one Minister. For these departments, the Minister responsible for the appropriations administered by the department and the responsible Minister for the department are likely to be the same Minister. For more information on the public finance system, see A Guide to Appropriations and The Responsibilities of an Appropriation Administrator on the Treasury's website.
2.28 The Prime Minister determines the size and membership of Cabinet. Although all Ministers are members of the Executive Council (see chapter 1), they are not usually all members of Cabinet. Ministers who are members of Cabinet attend Cabinet meetings. They are members of one or more Cabinet committees, and may attend others when relevant.
2.29 Ministers outside Cabinet have full legal powers as Ministers, and may be appointed to full portfolios. They have the same role, duties, and responsibilities as Ministers inside Cabinet, and are also bound by the principle of collective responsibility (see paragraphs 5.24 – 5.31). They do not attend Cabinet, but, with the agreement of the Prime Minister, may attend for particular items relating to their portfolio interests. They are usually members of one or more Cabinet committees, attending other committees where relevant.
2.30 Ministers inside or outside Cabinet may be appointed to full portfolio positions or they may be appointed as Ministers of State without portfolio responsibilities. The Prime Minister may assign Ministers of State a range of roles and responsibilities, which they may carry out as Ministers or Associate Ministers.
2.32 The Prime Minister determines the allocation of portfolios to Ministers, taking into account various matters (including political considerations, particularly in a coalition or support party context). The Prime Minister also decides on portfolio titles. There are no precise rules governing the application of portfolio titles; their use varies between administrations.
2.33 Each Minister generally holds more than one position and may, for example, be the Minister in one portfolio and an Associate Minister in another. Full portfolio appointments are made by warrant signed by the Governor-General. The Prime Minister may allocate other ministerial responsibilities (including those given to Associate Ministers) by letter.
2.34 The Cabinet Office maintains four directories containing information about ministerial portfolios. All four directories are available on the website of the Department of the Prime Minister and Cabinet.
- The Ministerial List issued under the authority of the Prime Minister lists Ministers in order of their rankings and sets out their portfolio and other ministerial responsibilities.
- The Directory of Ministerial Portfolios sets out, for each portfolio, the Minister's title, the relevant departments, Crown entities, and other organisations, the Votes or appropriations within Votes, and the legislation administered within the portfolio.
- The Schedule of Responsibilities Delegated to Associate Ministers is presented to the House from time to time. This schedule sets out defined responsibilities formally delegated to Associate Ministers, and may include responsibilities allocated to Parliamentary Under-Secretaries (see paragraphs 2.37 and 2.50).
- The Register of Assigned Legislation lists various Acts of Parliament and the Ministers (and/or departments) to whom they have been assigned. Modern statutes do not usually specify which Minister may exercise the functions and powers conferred by the Act; instead they define “the Minister” (and/or department) for the purposes of the Act as the Minister (and/or department) authorised by the Prime Minister to be responsible for administering the Act. The Register of Assigned Legislation is not a complete list of the Acts administered in each portfolio or by each department; this is found in the Directory of Ministerial Portfolios.
2.35 The Prime Minister may, by letter, assign responsibilities to Associate Ministers. Associate Ministers assist portfolio Ministers in carrying out tasks relating to their portfolios. Any statutory powers or functions that they exercise on behalf of the portfolio Minister are exercised under the authority of section 7 of the Constitution Act. Associate Ministers are members of the Executive Council and, in most cases, have other ministerial portfolios in their own right. Associate Ministers, whether inside or outside Cabinet, are bound by the principle of collective responsibility (see paragraphs 5.24 – 5.31).
2.36 The control of a portfolio always rests with the “portfolio” or “principal” Minister. When an Associate Minister is appointed to support a portfolio Minister, the principal Minister must provide a formal letter clearly setting out the role of the Associate Minister in the portfolio, any delegated responsibilities, and the relevant working arrangements. The Prime Minister, through the Secretary of the Cabinet, must be consulted on each letter before it is finalised. Once the proposed delegation has been approved by the Prime Minister and the letter has been finalised, the portfolio Minister provides copies to the Secretary of the Cabinet and to the chief executive of the department or departments concerned.
2.37Delegations to Associate Ministers are set out in a schedule of delegations compiled by the Cabinet Office. The schedule is available on the website of the Department of the Prime Minister and Cabinet. The schedule is also presented to the House of Representatives (so that, for example, parliamentary questions can be directed to the appropriate Associate Ministers for answer).
2.38 Associate Ministers should take particular care to avoid making public statements or taking initiatives of any sort without the knowledge and approval of their portfolio Minister. The delegation letter generally sets the parameters of the Associate Minister's communication with departments. Associate Ministers should ensure that the parameters are respected.
2.39 Associate Ministers may submit papers to Cabinet committees or Cabinet within their designated area of responsibility, provided that the paper clearly indicates that the portfolio Minister agrees with the submission of the paper.
2.40 Associate Ministers who are not already members of a Cabinet committee in their own right may attend the committee to take through a paper submitted by the appropriate portfolio Minister, with the approval of that Minister and the committee chair. If a committee is considering an item that is relevant to an Associate Minister’s own responsibilities, the Associate Minister will receive the relevant papers and may attend the meeting.
2.41 Sometimes a Minister will be absent overseas, or otherwise temporarily unavailable to perform official duties. In such a case, the Minister will ask another Minister or Ministers to act in his or her place under the authority of section 7 of the Constitution Act (see paragraph 2.21). The acting Minister will control the portfolio until the portfolio Minister returns to official duties. Special considerations apply in the case of an Acting Prime Minister (see paragraph 2.14)
2.42 Similarly, if an unforeseen temporary vacancy occurs in a portfolio or the Minister is unexpectedly incapacitated, the Prime Minister may appoint a Minister to act in the portfolio until a formal appointment is made, or until the Minister is able to return to ministerial duties.
2.43 In the case of a major portfolio, if an absence of more than a day or so is envisaged, the acting Minister should be a Minister inside Cabinet. There are no other particular requirements to take into account when choosing an acting Minister for a portfolio. Care is needed, however, when temporarily assigning a portfolio from one Minister to another, to ensure that potential conflicts between portfolio responsibilities are avoided.
2.44 If an Associate Minister is absent overseas, or otherwise temporarily unavailable to perform official duties, the portfolio Minister usually takes up any delegated responsibilities during the period of the Associate Minister's absence, unless arrangements have been made for another Minister to act as the Associate Minister during the period of absence.
2.45 Absent Ministers (particularly those travelling overseas) should in general leave the day-to-day management of their portfolios to the Ministers acting for them in their absence. Public statements, in particular, are usually best made by the acting Minister in New Zealand so that due account can be taken of the domestic context. If a significant matter arises during the portfolio Minister’s absence, however, the acting Minister should consult the portfolio Minister if possible before taking ministerial action or making any public comment.
2.46 A “duty Minister” is assigned to deal with urgent issues requiring ministerial involvement during extended holiday periods, most notably Christmas and New Year, when many Ministers may be out of contact. The Prime Minister's Office prepares a roster of duty Ministers for such periods to ensure that a Minister is always available.
2.47 The duty Minister's role is to carry out urgent ministerial functions on behalf of absent colleagues under the authority of section 7 of the Constitution Act (see paragraph 2.21) and to act as the first point of contact for officials. The duty Minister should, where possible, contact the relevant portfolio Minister(s) before making a public statement, making a decision, or issuing instructions to officials. The duty Minister should contact the Prime Minister or Acting Prime Minister if:
- the portfolio Minister cannot be contacted; or
- the portfolio Minister considers that the matter needs consideration by a wider group of Ministers or at the Cabinet level.