Legal Beagle by Graeme Edgeler

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Legal Beagle: Bad Law

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  • Graeme Edgeler,

    I'm sorry that it's 3000 words, but it was that much fun...

    [Just wait until my next piece =) ]

    Wellington, New Zealand • Since Nov 2006 • 3207 posts Report Reply

  • Zippy Gonzales,

    Ouch. Succinctly put but ouch nonetheless.

    Wellington • Since Nov 2006 • 186 posts Report Reply

  • Joshua Drummond,

    Do you think Locke knew it was bad law from the get-go? Is it possible he was submitting a bill that was effectively saying "Hey, I think we should have a republic, you know, how's about we talk about it?" Sure, Parliament might not be the best place for that kind of thing, but it's hard to imagine a more visible forum for debate.

    The other scenario - that Locke didn't realise how bad the bill was - kind of worries me.

    Since Nov 2006 • 119 posts Report Reply

  • Graeme Edgeler,

    The other scenario - that Locke didn't realise how bad the bill was - kind of worries me.

    I can't conceive that he'd have known. Problems? Sure. But not these ones.

    The idea that Locke would seek to provoke debate on whether we should have a hereditary monarch, who passes on their status to their eldest son (who must be a Protestant and not marry a Catholic), by advancing a bill that could replace them with an elected Head of State, who - in the event of their untimely death - would probably be replaced for the remainder of their term by their eldest son who must be a Protestant and cannot have married a Catholic is a little out there even for him.

    Wellington, New Zealand • Since Nov 2006 • 3207 posts Report Reply

  • Idiot Savant,

    Which is what happens with member's bills. Unlike the government, opposition MPs don't have a large professional staff of analysts to work out all of what has to be done, or drafters to make sure the law actually does it without perverse consequences. And when you're looking at the sort of job which basically requires a royal commission (oh, the irony), that's a bit difficult.

    Palmerston North • Since Nov 2006 • 1716 posts Report Reply

  • Joshua Drummond,

    If the bill had made it to select committee, wouldn't a lot of the weirder stuff you've mentioned been weeded out, leaving a better framework for constitutional change should someone decide to have another stab further down the line?

    How's about we follow something similar to the Australian process, sans Constitutional Convention - have referendum first, then have a Royal (State?) Commission sort out the details later? Find out if the people, in general terms, want a republic, and then present the available models to Parliament? I suppose there is the problem that people don't know exactly what kind of republic they are voting for, but that could be accomplished by referenda further down the line. At least it would get the ball rolling, so to speak.

    I mean, I'm well out of my depth with the constitutional and legal stuff involved here, but as a layman with a vague preference for a republic, this seems like the most sensible path.

    Since Nov 2006 • 119 posts Report Reply

  • Graeme Edgeler,

    Which is what happens with member's bills. Unlike the government, opposition MPs don't have a large professional staff of analysts to work out all of what has to be done, or drafters to make sure the law actually does it without perverse consequences. And when you're looking at the sort of job which basically requires a royal commission (oh, the irony), that's a bit difficult.

    Yes it is. Thus my quote:

    This does, perhaps unfortunately, show that this debate is not going to be one that an individual MP can thrust onto the stage with a members' bill.

    There are legislative steps an individual member of the Parliament could to move the process forward. A bill setting up a Citizens Assembly to look into it is one. And there are others. I'd have thought that a select committee inquiry would be a good way for an MP to make the first step.

    The Maori Party got a constitutional review as part of it's confidence and supply agreement, I don't see why the Greens shouldn't get an inquiry into a Republic (or in a more closely balanced future Parliament, couldn't force a select committee inquiry of one, as Hone Harawira has into the effects of tobacco on Maori).

    But this big bang route was simply hubris.

    Wellington, New Zealand • Since Nov 2006 • 3207 posts Report Reply

  • Idiot Savant,

    It may have been weeded out, or the select committee may have said "this is too broken to fix". But in the process of the latter, they would have shown everyone part of what needed to be done.

    An indicitive referendum triggering an inquiry is much less ambitious, but also much more legally achievable - bt it does leave the process open to Australian-style sabotage, and there's no guarantee that a future government will implement the identified results - just look at what happened with MMP. OTOH, as that process showed, politicians can eventually be electorally forced to progress things, even when they hate the idea.

    Palmerston North • Since Nov 2006 • 1716 posts Report Reply

  • Idiot Savant,

    A bill setting up a Citizens Assembly to look into it is one.

    Now thats a good idea...

    Palmerston North • Since Nov 2006 • 1716 posts Report Reply

  • Graeme Edgeler,

    If the bill had made it to select committee, wouldn't a lot of the weirder stuff you've mentioned been weeded out, leaving a better framework for constitutional change should someone decide to have another stab further down the line?

    It may have, if the bill had made it out of select committee. But a select committee inquiry - rather than a debate on a bill - would be a better way of doing that.

    But while there were problems with the content of the bill, the funnier - more serious - problems were with what wasn't in the bill.

    Find out if the people, in general terms, want a republic, and then present the available models to Parliament?

    A well-phrased poll will achieve that at a fraction of the cost. We already know how people feel about a republic. A fair proportion think it's a pretty good idea, but it's not a big deal or a pressing need for more than a smallish minority.

    Get a few thousand people marching down Queen Street calling for an indigenous Head of State, like we had calling for Māori seats on the Auckland Super Council, and people might take notice. The Republic Movement mostly has the right idea. Convince people of the need for a republic first, and then go through the formal process.

    Hold debates and public meetings, send out leaflets, call talkback and convince the listening public, sign petitions calling for meaningful steps toward a republic, and when you got a groundswell of support, get back to of us.

    Wellington, New Zealand • Since Nov 2006 • 3207 posts Report Reply

  • dave crampton,

    .. and also discuss ( meaningfully) the relevance of the Declaration of Independence and the role of the Treaty of Waitangi and its principles will have in any new constitutional arrangements. Locke's Bill ignored that discussion.

    welli • Since Jan 2007 • 144 posts Report Reply

  • Matthew Poole,

    Thanks for this post, Graeme. It's nice to have something to throw back at all the people whinging about how Parliament did some terrible thing by voting down the Bill. Admittedly the vote wasn't framed in terms of a Bill that's so structurally flawed as to makes its very presentation a mockery of statutory drafting, but it did at least ensure that the public weren't faced with trying to comment on something so bizarre and unworkable as Locke's law.

    Auckland • Since Mar 2007 • 4097 posts Report Reply

  • Idiot Savant,

    Locke's Bill ignored that discussion.

    That's because it tried to do the minimum change, the twink republic, where the monarchy is removed and everything else continues on as before. The Treaty is its own issue, and we can work that out another day. Trying to do everything - republic, Treaty, entrenched BORA - all at once in one package is setting ourselves up to fail.

    Palmerston North • Since Nov 2006 • 1716 posts Report Reply

  • Lewis Holden,

    Matthew - I never whinge!

    When republicans are serious about having a real debate, they'll come up with a non-stupid process actually worth engaging in. If they're not going to take themselves seriously by pushing a bill that flawed, I don't see why anyone else should take them seriously.

    We are serious about having a debate. The side avoiding the debate here are the monarchists.

    But we've never had a proper discussion about the issues at any level, apart from a few speeches and an odd committee looking at unrelated matters.

    That's the reason why the Republican Movement made the decision to support the Bill to Select Committee. Sure, the Bill was flawed. But even if it was voted down at its second reading because its flaws are highlighted, that is better than parliament simply dumping it at first reading, much like the 99 MP Bill NZ First put forward, which was totally unworkable and thanks to overhangs would've negated its original intent.

    This blog demonstrates the importance of this Bill to the debate. It's clear that the issue requires more thought and a formal consideration by an independent body. That is now the direction we're moving in.

    Auckland • Since Feb 2007 • 21 posts Report Reply

  • Graeme Edgeler,

    We are serious about having a debate. The side avoiding the debate here are the monarchists.

    Why would you want a debate with the Monarchist League, or monarchists generally? We are not going to have a republic when you convince the monarchists it's a good idea, we're going to have a republic when you convince everyone else it's a good idea.

    You need a debate with 'average' New Zealanders: what do you want from your Government? Shouldn't your nation represent you better to the world? How would you like to see New Zealand's advance in the 21st century reflected in the way our society operates at a fundamental level?

    Wellington, New Zealand • Since Nov 2006 • 3207 posts Report Reply

  • Lewis Holden,

    Why would you want a debate with the Monarchist League, or monarchists generally?

    We try and avoid it - but they do represent a legitimate viewpoint nonetheless.

    We are not going to have a republic when you convince the monarchists it's a good idea, we're going to have a republic when you convince everyone else it's a good idea.

    Absolutely. The HoS Bill would've helped in that regard, irrespective of its flaws. That's why the monarchists campaigned to kill it - there was no analysis of the depth you've produced Graeme. Must be a Vic Law School thing eh :-)

    Auckland • Since Feb 2007 • 21 posts Report Reply

  • Rich of Observationz,

    As I/S says, the Green Party doesn't have the resources to pay lawyers to draft bills. Given that Labour and National are both leery of being seen as republican and would inevitably vote against any bill, the energy to create a better draft might not have been there, either.

    I'd agree that a 'twink republic' is a bad idea, mainly because an elected head of state could claim a mandate to try and impose their ideas on the seperately elected government (refusing assent to bills, denying or granting dissolutions, etc).

    It would in many ways be better to codify our constitution first and remove all powers, dormant or otherwise, from the head of state (after the fashion of the Swedish constitution. That would enable a simpler transition to a republic once consent for that existed. (Perhaps after a Windsor behaved in a particularly crass manner, or Britain itself decided to abolish its monarchy, forcing us to follow suit).

    Back in Wellington • Since Nov 2006 • 5550 posts Report Reply

  • Rich of Observationz,

    The Maori Party got a constitutional review as part of it's confidence and supply agreement

    It did? Is it happening? It must be a very quiet one..

    Back in Wellington • Since Nov 2006 • 5550 posts Report Reply

  • giovanni tiso,

    What they mean by "constitutional" is a brisque walk followed by a nap.

    Wellington • Since Jun 2007 • 7473 posts Report Reply

  • Lewis Holden,

    The Maori Party got a constitutional review as part of it's confidence and supply agreement

    It's not started yet.

    Auckland • Since Feb 2007 • 21 posts Report Reply

  • Mrs Skin,

    Trying to do everything - republic, Treaty, entrenched BORA - all at once in one package is setting ourselves up to fail.

    How, exactly, can the Treaty be separated from the republic question? I would say they are inextricably bound.

    ...the Green Party doesn't have the resources to pay lawyers to draft bills.

    No, but some of them are lawyers. It would have been worth it, surely, to run the Bill by someone 2 or 3 offices down who understands how this stuff works...

    the warmest room in the h… • Since Feb 2009 • 168 posts Report Reply

  • Lewis Holden,

    How, exactly, can the Treaty be separated from the republic question? I would say they are inextricably bound.

    But that's just the thing though Mrs Skin - they're not.

    The Crown in 1840 that made the Treaty with Maori iwi was the British Crown. As part of New Zealand's constitutional evolution, the Crown became the Crown in Right of New Zealand with the Statute of Westminster Adoption Act 1947. In other words "the Crown" has actually morphed once before, the obligations that the British Crown had with respect to New Zealand transferred to the new entity.

    The issue Graeme raises is that Keith's Bill appears to not actually enact the handover from the Crown in Right of New Zealand to the new head of state.

    Auckland • Since Feb 2007 • 21 posts Report Reply

  • Sacha,

    Lewis, you may be right legally, but I believe politically Mrs Skin is correct - the issues are inextricable. Mike Moore may be on the right track about conducting the various changes as a long but integrated process.

    Ak • Since May 2008 • 19719 posts Report Reply

  • Lewis Holden,

    Lewis, you may be right legally, but I believe politically Mrs Skin is correct - the issues are inextricable.

    Sure, I freely accept that there's a significant "symbolic" aspect to the monarchy. There will need to be some work done in ensuring the Treaty is untouched. But that's it.

    Mike Moore may be on the right track about conducting the various changes as a long but integrated process.

    But that's the problem. Each of these issues aren't "integrated", they can be dealt with separately.

    Auckland • Since Feb 2007 • 21 posts Report Reply

  • Sacha,

    Good luck getting people to change the way we're governed one piece at a time if you won't acknowledge those pieces are related.

    Ak • Since May 2008 • 19719 posts Report Reply

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