Legal Beagle by Graeme Edgeler


Bad Law

In 1986 Parliament passed the State Owned Enterprises Act. It included a section reportedly described by then Attorney-General Geoffrey Palmer as “window-dressing”:

9 Treaty of Waitangi
Nothing in this Act shall permit the Crown to act in a manner that is inconsistent with the principles of the Treaty of Waitangi.

And until not all that much later most people probably believed him. The 1987 Maori Council Case turned this on its head – the Court read real meaning into the words “the principles of the Treaty of Waitangi” (deciding they took precedence over more specific language in the Act) and our law hasn't looked back. The Court of Appeal found obligations of good faith, the concept of partnership between Maori and the Crown, the need to provide redress for past breaches, and the need to be fair to one another and act honourably. It was controversial, and indeed is controversial still – this case is still occasionally be referenced as a nadir of judicial activism in New Zealand.

It may have been a foreseeable consequence, but it was clearly an unintended one. In its wake, reference to the principles of the Treaty of Waitangi appears in a swathe of legislation – from the Climate Change Response Act, to the Royal New Zealand Foundation of the Blind Act, as well as countless government charters and statements of intent.

The Maori Council Case was a starting point, but even now there isn't a truly definitive statement of what the principles of the Treaty of Waitangi encompass, and there remains the possibility that the Courts could expand upon this in the future. Which some people have a problem with.

There have been attempts in Parliament to wrest control from the Courts. In Early 2006, a Rodney Hide-introduced bill that legislatively defined the principles was debated in Parliament – his Treaty of Waitangi (Principles) Bill declared three principles arose from the Treaty – one for each article: the principle that there is one New Zealand, and that the Crown exercises sovereignty for all; the principle that the Crown has a duty to uphold citizens' property rights; and the principle that all New Zealanders are equal before the law and have the right to things like fair trials, free speech and democracy.

Very different from the principles elucidated by the Court of Appeal, and obviously controversial. The bill wasn't particularly well-drafted. Indeed, on its face, it only defined those as the principles for the Treaty of Waitangi (Principles) Bill itself and wouldn't have affected the meaning of those words in other legislation, but the intent was clear, and the bill could have been the vehicle for debate on the meaning of the Treaty, if Parliament had wanted to allow New Zealanders to have one. They didn't, and the bill failed to reach select committee.

A few months after that attempt, New Zealand First MP Doug Woolerton's Principles of the Treaty of Waitangi Deletion Bill was drawn from the Parliamentary ballot. It took a different route – it proposed to delete every legislative reference to the “principles of the Treaty of Waitangi” – section 9 of the State Owned Enterprises Act would be gone, as would the requirements of University Councils, and the Royal Society of New Zealand et. al. to acknowledge the Treaty, along with several legislative apologies in Treaty settlement legislation. It was an indiscriminate approach – no consideration was given to the reason those words appeared in any particular legislation, and no thought was given to the possibly that removing them from some places might render some bits legislation largely unintelligible.

Labour supported the bill to select committee as part of its confidence and supply agreement with New Zealand First, where it was rightly rubbished. Concerns with the pervasiveness of “the principles of the Treaty of Waitangi” are legitimate. The words have often been added to legislation or other governing documents with little thought for the practical effect. But that scatter-shot approach to legislating – proposing legislation that actively wrecks coherent law, leaving a void for who knows what court to fill at great expense to everyone is abhorrent to democracy. It was an exercise in futility – the Principles of the Treaty of Waitangi Deletion Bill could never be the basis of meaningful law, and could never have achieved what New Zealand First intended it to.

But its idiocy pales in comparison to Keith Locke's Head of State Referenda Bill, which Parliament rightly rejected earlier this week. While New Zealand First's bill had the saving feature that everyone knew it was a joke, Locke's republic referendum bill had the outward appearance of a serious attempt to start the process toward creating an indigenous head of state for New Zealand. And Parliament's debate on its first reading treated it as such.

But the bill was so woeful, so inadequate, that it would have been a travesty of democracy had it ever reached a select committee. David Farrar, and the Republican Movement, and many others, are disappointed that the public of New Zealand didn't get the chance to have their views made known on the prospect of a New Zealand Republic. But that is not what the select committee debate on a bill is for – a select committee looking at a bill, looks at the bill. It would have been a cruel joke to have that public debate occur with this bill. If a select committee inquiry into the general process New Zealanders want to take on deciding whether to ditch the Monarchy, then that is what they should seek. It could be a really valuable process, and it's easy enough to get – a majority vote at a select committee can start one.

Why do I say the bill was appalling? I've a list – but please bear in mind that this is only the highlight reel.

Let us start with the basics. First, of course, was the problem identified by the Attorney-General, in the report he presented to the House stating his opinion that the bill was inconsistent with the New Zealand Bill of Rights Act. The requirement of the bill that not all registered voters could vote in its second referendum was odd, but was a problem that could be fixed in the select committee. Still, an inauspicious start.

Somewhat hilariously, given Green Party views on the conduct of referendums made known in the House just the following day, the bill imposed absolutely no restrictions and no transparency on the conduct of the republican referendum. There were no spending limits, no registration of those undertaking massive publicity campaigns, no requirements to tell us who was funding them, not even a requirement to put a name and address on campaign posters.

The funding rules for the prospective head of state elections were no better: no limit on foreign donations; and no disclosure of donations received by the candidates at all. The Head of State – whose signature would be required on every law before it took effect – wouldn't have to tell us whether they were receiving millions of dollars from foreign multi-national corporations.

There was at least a spending limit for the nationwide Head of State elections: $20,000. But the law, which would have applied some of the rules the Electoral Act to how spending would have operated, adopted the non-existent section 214 to show how these would work.

Far more problematic was that if the bill had passed, and New Zealanders had then voted for a republic, none would actually have been created.

The Head of State – whether elected or appointed – would have been required to appoint a Head a State. Or possibly, the Elizabeth the Second, Head of State of New Zealand would have been required to appoint a head of State. Because, of course, the Letters Patent constituting the Realm of New Zealand, and creating the office of Governor-General, were entirely untouched.

Indeed, pretty much the entire body of New Zealand law – with all its references to the Queen, or the Crown, or the Governor-General-in-Council was left as it was (including the Imperial laws dealing with the succession!). There was a deeming provision:

(3) Every reference in any enactment to the Queen, the Sovereign, or the Governor-General is to be read as a reference to the head of State.
(4) Every reference in any enactment to a Minister of the Crown is to be read as a reference to a Minister.

But that was it. It left the old words, and quite a bit the old meaning too. Most of the phrase “Elizabeth the Second, by the Grace of God Queen of New Zealand and Her Other Realms and Territories, Head of the Commonwealth, Defender of the Faith” in the Letters Patent I mentioned earlier is unaltered in word or meaning. That's one consolation, I suppose, our Head of State would have been implicitly declared the Head of the Commonwealth.

References to the Crown itself? They continued to have the same meaning. Which is just as well, because Keith Locke's bill imposed continuing obligations on it under the New Zealand Republic.

The common assumption among those who've thought about is that should New Zealand becomes a republic, the obligations currently reposing on the Crown under the Treaty of Waitangi would be taken over formally by the Government of New Zealand (where they effectively rest now).

That's not how Keith Locke wanted to do it. The (New Zealand) Crown's obligations under the Treaty of Waitangi wouldn't transfer to the Government of the Republic of New Zealand, or to the Head of State, they'd stay with the Crown, exactly as they are now:

66 Treaty of Waitangi
The rights conferred and obligations imposed by the Treaty of Waitangi continue as if this Act had not been passed.

There were actually a couple of direct amendments to other pieces of legislation. The bits about the Sovereign in the Constitution Act were deleted, and replaced with a statement mentioning that the (elected or appointed) Head of State would be the Head of State. And several oaths in the Oaths and Declaration Act would be updated for the new regime: the Oath of Allegiance for example, would change from its current form:

I, ..., swear that I will be faithful and bear true allegiance to Her [or His] Majesty [Specify the name of the reigning Sovereign, as thus: Queen Elizabeth the Second], Her [or His] heirs and successors, according to law. So help me God.

to the republican:

I, ..., swear that I will be faithful and bear true allegiance to New Zealand, according to law. So help me God.

However, that's only the Oath of Allegiance taken by Judges (who must also swear the Judicial Oath) and Executive Councillors (who also swear the Executive Councillor's Oath). The Oath of Allegiance for new citizens – set out in the Citizenship Act – would stay as:

I, [Full name], swear that I will be faithful and bear true allegiance to Her [or His] Majesty [Specify the name of the reigning Sovereign, as thus: Queen Elizabeth the Second], Her [or His] heirs and successors, according to law. So help me God.

Now whether new citizens would be required to say “Queen Elizabeth the Second”, and have it deemed to mean “the Head of State”, or would instead substitute the name of the “reigning” Head of State isn't clear, but it's nice to know the new Head of State would be addressed as “His Majesty” or “Her Majesty”. And it's interesting to know that citizens will be swearing fealty to them and their heirs and successors, and not New Zealand.

Unfortunately, the deletion of Part 1 of the Constitution Act would also delete the bits which give the temporary Administrator of the Government the power to do anything if the Head of State is absent or non-existent. This is doubly unfortunate, because the Administrator would actually have a fair bit to do: any election for a new Head of State only takes place after the old one's term is up, and they leave office immediately. If they resign – which they can't actually do – or die, we have to wait until their term finishes before electing a new one anyway. But that's okay, while there is a sort of general requirement to hold an election, unlike with parliamentary elections, there's no time-frame imposed for the holding of them, so the Chief Electoral Officer may never have gotten around to it anyway.

Surely these problems have been ironed out in a select committee?

Not really, no - there are simply far far too many of them.

These are just the funny ones, and not even all of those. I haven't touched on the idiocy of operating a voting system for a single office under STV with the requirement to carry over a keep fraction, or the incompatibility of the Referenda (Postal Voting) Act to STV elections, and hundreds of other problems the bill would have created.

The Electoral Finance Act was a problematic law, but a large part of why this was so was that the Electoral Finance Bill was appalling. The Select Committee process is not designed to make the number of changes and corrections that were needed to get that law workable. The debate – not unreasonably – focussed on the bits that were really bad – the unintended banning of a lot of political activity, the state intrusion into the finances of organisations that make political statements, the prohibition on political party press releases, etc. When rules like those are in a bill, submitters, and the select committee itself, are going to fixate on fixing them – to the detriment of also-important-but-somewhat-less-glaring errors.

The scale of change needed for this bill to actually achieve its aim of creating a New Zealand Republic upon the affirmative vote of New Zealanders is massive. The Twink Republic – so-called because of the aim of changing nothing about the New Zealand legal system and constitution but replacing the Governor-General/Sovereign with a New Zealand Head of State – still requires you to go through and change each reference ... just to make sure you don't accidentally change the narrative in the Ngāi Tahu Claims Settlement Act telling of how Matiaha Tiramorehu petitioned Queen Victoria in 1857 into some ludicrous, insulting, reference to a Head of State.

In 2004, New Zealand created civil unions, with the Civil Union Act itself some 30 pages long. But to give civil unions meaningful effect – a massive number of other laws and regulations needed to be updated. A companion bill – the Relationships (Statutory References) Bill – went through the parliamentary process largely concurrently. It changed the pension rules, so that the married rate for the pension became the married or civilly united rate, and made hundreds of other like changes across a broad range of legislation. That bill was over 240 pages, and I imagine it would be dwarfed by the bill needed to really make New Zealand a Republic.

It is a common refrain that New Zealand becoming a republic is inevitable. I agree that it is highly likely. But that process will take time, and it will not begin with the bill that would bring it about (and it had better not begin with one like the Head of State Referenda Bill!). When the National Government wanted to change the Electoral Finance laws, they conducted a three-stage consultation process – two stages of which occurred before legislation was even drafted. How our Head of State is determined is at least as important.

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. 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.

The first step is probably a simple discussion. A select committee inquiry would be just one way someone in Parliament could begin the process: get some discussion going, and ideally some agreement about how the process would happen. Someone outside Parliament could start a petition. Or hold public meetings across the country.

New Zealanders deserve better than this. Republicans deserve better than this.

And not just on the issue of a republic – that a piece of legislation like the Head of State Referenda Bill can get a serious debate in the New Zealand House of Representatives is really somewhat disturbing: the voting should have been drowned out by the laughter.

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