De facto head of state vs de jure head of state

We often use the Latin terms “de facto” and “de jure” in our campaign. Every so often we’re challenged on our use of the terms, and why they’re specifically used to describe the Governor-General as New Zealand’s de facto head of state. In a nutshell, de jure literally means “in law” or what is written in law. De facto means “in fact” or what is actually happening in reality. Of course, that reality is exactly at the heart of the republic debate.

Many of us would’ve heard of paper roads. That is, roads that only exist on paper but don’t exist in reality. When I lived in Mt Wellington, there was a paper road at the bottom of the garden. The previous owners had put it in place to provide access to a neighbouring section, probably in anticipation of buying and sub-dividing the property. So on paper, there was a road at the bottom of our garden. In reality there was an old corrugated iron fence and a thorny Bougainvillea. We could’ve marked out a road, ripped down the fence and after much cutting the Bougainvillea, and put down a concrete pad for a road, but in reality, there was no road there.

The same is true when it comes to the Governor-General. On paper, in law, the Governor-General is the Queen’s representative. The Letters Patent 1983, the Royal decree establishing the office (more on this at a later date) states:

We do hereby constitute, order, and declare that there shall be, in and over Our Realm of New Zealand… a Governor-General and Commander-in-Chief who shall be Our representative in Our Realm of New Zealand, and shall have and may exercise the powers and authorities conferred on him by these Our Letters Patent

So it’s clear that, in law, the Governor-General is the Queen’s representative. In addition, the Queen (as Sovereign) is specifically given the title “Head of State” by our Constitution Act 1986, and the fact the Governor-General is the Sovereign’s representative is re-iterated in section 2:

2. Head of State

(1)The Sovereign in right of New Zealand is the head of State of New Zealand, and shall be known by the royal style and titles proclaimed from time to time.

(2)The Governor-General appointed by the Sovereign is the Sovereign's representative in New Zealand.

So, why do we say the Governor-General is de facto our head of state, when legally it’s clear that they aren’t?

First, lets look at the definition of head of state:

…the chief public representative of a country, such as a president or monarch, who may also be the head of government.

(The last bit of the definition isn’t relevant to New Zealand, because our head of government is the Prime Minister, Jacinda Ardern, separate from the head of state). This is where it gets murky: while the Sovereign is our head of state, they clearly aren’t doing the work of the “chief public representative". That work is done by the Governor-General: representing New Zealand to the world on overseas trips (which the Queen confirmed to Dame Cath Tizard she couldn’t do) and within New Zealand.

Second, all the actual work of our head of state is done by the Governor-General. He or she sign signs Acts of Parliament (the Queen has only ever done this once for a New Zealand Act, and even then after some negotiation), regulations etc, and chairs the Executive Council.

Third, and often overlooked, is the fact the Governor-General is the Commander-in-Chief of our armed forces. Not the Sovereign, the Governor-General. In the gradual progression towards New Zealand’s independence, our armed forces came under the Governor-General and not the Sovereign.

The Sovereign does none of these things. In fact, the Sovereign’s only real work when it comes to New Zealand is appointing the Governor-General once every five years, on the exclusive advice of his or her Prime Minister.

So, the Governor-General is de facto our head of state, but de jure the Sovereign is. When it comes to the issue of who our head of state is, that matters: when you’ve got an office that is nearly, sort of head of state and is occupied by a New Zealander, the sensible thing to do is to make that office our head of state.