1.38 Matters requiring Executive Council action include:
- regulations (which are made by Order in Council);
- other Orders in Council; for example, commencement orders (see paragraph 1.52) and certain local government orders;
- some proclamations;
- establishing a public inquiry under the Inquiries Act 2013; 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”).
1.39 The Parliamentary Counsel Office is responsible for drafting most of the documents for the Executive Council.
1.40 The submission of almost all matters for consideration by the Executive Council must first be approved by Cabinet. Once Cabinet authorises the submission of a proposed item, the item will be submitted to the Governor-General in Executive Council (in most cases on the same day).
1.41 A few items, however, are drafted by the department concerned and are submitted directly to the Executive Council by the relevant Minister. In general, these are items that are not published in the legislative instruments series, items affecting only a particular local district, or items required to give effect to the determinations of statutory bodies. Technical requirements for Orders in Council that are submitted directly to the Executive Council are included in the information on the Executive Council in the CabGuide.
1.42 The Executive Council usually meets with the Governor-General after Cabinet on Monday afternoons in the parliamentary complex. The Clerk sends a notice of meeting to the members of the Executive Council. The agenda is distributed at the meeting.
1.44 The Letters Patent provide that in a situation of emergency or urgency, the Executive Council can meet in any way that allows all members to participate effectively during the whole of the meeting. This provision allows the Executive Council to meet by teleconference or videoconference, if necessary.
1.45The Letters Patent provide that two members of the Executive Council, plus the presiding officer, constitute a quorum. When available to attend, the Governor-General presides over the Executive Council. When the Governor-General is not available, the most senior member of the Executive Council present at the meeting is the presiding officer.
1.46 Section 3A of the Constitution Act provides that the Governor-General may perform a function or a duty, or exercise a power, on the advice and with the consent of the Executive Council, if that advice and consent are given at a meeting that the Governor-General is unable to attend. The performance of the function or duty, or the exercise of the power, takes effect from the date of the meeting, once the Governor-General has signed the documents.
1.47 If the Governor-General is outside New Zealand, the Administrator of the Government presides, if available (see paragraph 1.20). Section 3A of the Constitution Act also applies if the Administrator is unable to attend an Executive Council meeting.
1.48 The Governor-General may wish to ask questions at the Executive Council meeting. For this reason, Ministers with items on the agenda should make a special effort to attend. If they are unable to do so, they must brief another Minister to represent them.
1.49 Executive Council proceedings are confidential. When members of the Executive Council are appointed, they swear or affirm an oath under the Oaths and Declarations Act 1957 that they “will not directly nor indirectly reveal such matters as shall be debated in Council and committed to [their] secrecy”.