Legal Beagle by Graeme Edgeler

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Legal Beagle: On the Force of Arms

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  • Graeme Edgeler,

    And I only mucked up one piece of HTML...

    Wellington, New Zealand • Since Nov 2006 • 3215 posts Report Reply

  • Raymond A Francis,

    Interesting
    Surely a well written Bill of Rights Act would give us, the citizens basic rights that the parliment would infringe at its own risk
    And that will include a chance to kick the bugers out ever three years
    During the war did the coalition government try to extend the period between elections
    And what would it take to make me attempt to overturn the Government
    Worth thinking about in some depth

    45' South • Since Nov 2006 • 578 posts Report Reply

  • Russell Brown,

    And I only mucked up one piece of HTML...

    You did beautifully. Welcome aboard.

    Auckland • Since Nov 2006 • 22848 posts Report Reply

  • DPF,

    Good piece Graeme. I agree largely on the examples you give of where you might want the GG to intervene.

    What you didn't cover though is that if the PM gets any hint the GG may refuse assent, they can get the GG sacked instantly. A GG involved in day to day NZ issues may decide to refuse assent. The Queen (or Charlie) could never ever refuse the advice of the NZ PM in regards to dismissing and appointing the GG. So the PM could have appointed someone who won't object.

    Unlikely, but not more unlikely than Graeme's original scenarios. This is of course one reason why I support having a NZ Head of State - so that there are some protections against parliamentary supremacy.

    Wellington, New Zealand • Since Nov 2006 • 78 posts Report Reply

  • Eddie Clark,

    Look at your shiny new masthead, Graeme! And to think a few short years ago we were sitting in class together listening to Tony rant about rights. Ah, the nostalgia!

    Anyway, interesting post.

    To address Raymond's point first, we already have a relatively well-written Bill of Rights, but it isn't entrenched, nor is it supreme law - i.e. courts don't have the express power to strike down legislation that infringes rights. Regardless, I'd suggest that a Bill of Rights isn't the correct place to put a parliamentary term limit. A Bill of Rights deals with the rights of individuals vis a vis the state. Parliamentary term should be in the strutural part of a country's constitution, which in NZ's case consists of the Constitution Act and certain parts of the Electoral Act. Graeme, correct me if I'm wrong as I can't recall off the top of my head, but isn't the term limit one of the single or double entrenched parts of the Electoral Act?

    Anyway, when would I rise up? Rather sadly, and selfishly, I think it'd only be if a) the government seriously violated my rights or the rights of people close to me; and b) they restricted freedom of movement. b) is important because my first instinct would just be to leave. If that was removed, the people being persecuted are effectively cornered, in which case an uprising is pretty much the only option left.

    Wellington • Since Nov 2006 • 273 posts Report Reply

  • Eddie Clark,

    DPF:

    There is no necessary link between a NZ head of State and increased independence. There may be between an independently elected president and an appointed Governor-General, but republicanism by no means necessarily involves an elected head of state. It would be perfectly possible to hold an election for Governor-General - one simply needs to pass legislation tying the PM's advice to the sovereign to a popular vote. Equally, it would be perfectly possible to have an appointed republican head of state.

    Wellington • Since Nov 2006 • 273 posts Report Reply

  • Matthew Poole,

    Eddie, the parliamentary term limit as set in the Constitution Act is entrenched by the Electoral Act with a 75% Parliamentary majority or simple electorate majority. Can't remember if that's single- or double-entrenchment.

    Auckland • Since Mar 2007 • 4097 posts Report Reply

  • David Haywood,

    Matthew Poole wrote:

    ... the parliamentary term limit as set in the Constitution Act is entrenched by the Electoral Act with a 75% Parliamentary majority or simple electorate majority. Can't remember if that's single- or double-entrenchment.

    Actually, I don't think the AND/OR parliamentary vs. referendum-type amendment is what is meant by single/double entrenchment (although that would seem a perfectly logical interpretation of the terms).

    I seem to recall that double entrenchment refers to the entrenching legislation being itself entrenched, e.g. legislation that requires a parliamentary super-majority to change the electoral term, also requires a super-majority to change that legislation.

    This has always seemed kind of stupidly obvious to me. On the other hand, I also own an iron with the words 'remove clothing before ironing' emblazoned on the side -- so I guess it's the same principle.

    Dunsandel • Since Nov 2006 • 1156 posts Report Reply

  • Paul Rowe,

    This has always seemed kind of stupidly obvious to me. On the other hand, I also own an iron with the words 'remove clothing before ironing' emblazoned on the side -- so I guess it's the same principle.

    And it goes to show you can't be too careful. I once had a colleague who came to work with a burn on his neck as a result of trying to flatten his collar without removing said clothing. Quite a bright fellow too :)

    Lake Roxburgh, Central Ot… • Since Nov 2006 • 574 posts Report Reply

  • Graeme Edgeler,

    DPF - yes, in all likelihood the Monarch would never fail to follow the advice of the PM regarding the dismissal of a Governor-General, but if a Governor-General was dismissed, then the role would revert temporarily to the Administrator, whom the PM and the Queen cannot dismiss.

    It might only take a few days (or hours), but while the new Governor-General is in the process of being appointed, I'd like to think the Chief Justice would do something if the situation warranted it (perhaps dissolving Parliament and instituting elections, if that's what was needed).

    Eddie - yes, the Parliamentary term is entrenched, and that's one of the reasons why I'd have a pretty big problem with a bare majority amending it. The Parliamentary procedure requiring a super-majority could technically be avoided with a bare-majority, and if that did happen, I'd want someone to stand up.

    Wellington, New Zealand • Since Nov 2006 • 3215 posts Report Reply

  • Emma Hart,

    On the other hand, I also own an iron with the words 'remove clothing before ironing' emblazoned on the side -- so I guess it's the same principle.

    A phrase which can still mean two entirely different things. How entertaining/traumatic is watching you iron?

    Christchurch • Since Nov 2006 • 4651 posts Report Reply

  • Grant Dexter,

    When a nation's authorities are evil it is highly unlikely that any armed takeover from within will be less evil.

    Taipei, Taiwan • Since Mar 2007 • 256 posts Report Reply

  • David Haywood,

    Emma Hart wrote:

    A phrase which can still mean two entirely different things. How entertaining/traumatic is watching you iron?

    It was only a cheap $9.95 iron from the Warehouse. It's amazing to think that for only $9.95 they can afford to sell you an iron AND a piece of hilarious double-entendre. How do they make a profit?

    Dunsandel • Since Nov 2006 • 1156 posts Report Reply

  • Kyle Matthews,

    Graeme,

    Surprised that you didn't mention the Whitlam Govt in Australia (er, wiki entry when it comes to GG using reserve powers to dismiss a government.

    A pretty relevant example, as Australia's setup in this regard is similar to ours.

    Since Nov 2006 • 6243 posts Report Reply

  • Andrew Geddis,

    Hi Graeme,

    The story you recount about the "refusal to sign an Order in Council" is covered in Philip Joseph's text at page 718 - the Gov. Gen. from 1941-46, Sir Cyril Newall, delayed signing a govt. recommendation to commute sentances of flogging, insisting on legislation instead. Apparently he also demurred about signing to authorise a courts martial of soldiers sent back from Africa, as they would have faced the death penalty if convicted. Joseph then says "on both these occasions, it is not known whether the Governor General actually refused his signature or whether the Government, on reconsideration, withdrew its advice."

    I also think that the "what ifs" regarding the Gov. Gen's refusal to assent/attempt to dissolve Parliament/sack the Govt/etc are like speculating about the laws of physics at the moment of the big bang ... the background conditions are so unlike "normal" or "everyday" experience that there is no way to know what would happen ...

    Dunedin • Since Nov 2007 • 206 posts Report Reply

  • Emma Hart,

    It was only a cheap $9.95 iron from the Warehouse. It's amazing to think that for only $9.95 they can afford to sell you an iron AND a piece of hilarious double-entendre. How do they make a profit?

    Heh, well I hear writers get paid shite...

    Christchurch • Since Nov 2006 • 4651 posts Report Reply

  • Michael Homer,

    [...] if a Governor-General was dismissed, then the role would revert temporarily to the Administrator, whom the PM and the Queen cannot dismiss.

    It might only take a few days (or hours), but while the new Governor-General is in the process of being appointed, I'd like to think the Chief Justice would do something if the situation warranted it (perhaps dissolving Parliament [...]

    What is the process? Is there necessarily a gap between the two, or can a new appointment be an instantaneous replacement? Sending "Liz: please appoint me GG" seems like it would be sufficient, and nobody else would need find out until after the fact. All assuming the sovereign doesn't willfully obstruct things, of course.

    Wellington • Since Nov 2006 • 85 posts Report Reply

  • Rich of Observationz,

    I was inspired by listening to Billy Bragg the other week.

    One of his points was that, at the Battle of Naseby, the rights of Parliament versus the English King was settled, but the rights of Parliament versus the people have never been so settled.

    Two things arise from that:
    - the actual royals, as opposed to their viceroys, realise that if they push the envelope too far, the chopping will (metaphorically) restart. (As indeed it did for James II). As a result, they avoid controversy - as evidenced by the fact that no monarch since Queen Anne has refused a Royal Assent.

    - we lack for the means for the people to control and restrain Parliament

    A Governor General is not a suitable form of control and restraint. Their role is not a judicial one (despite our last three having been judges). Any actions they take will inevitably be coloured by their personal politics.

    This was true in the case of Kerr; Australia was not in a state of imminent political collapse, the government having several months left to organise Supply - Kerr's personal belief that the Whitlam government was inimical to the interests of the "Western Alliance" largely dictated his actions.

    I feel that gubernatorial intervention (should it become more popular) will always follow this model: if a G-G agrees with a political act, they will decline to intervene (with impeccable justification). If they disagree, they might be moved to act (to the horror of the proponents of the act).

    An enforceable code of rights has the great advantage of being capable of objective judgment - and tested by those for whom objectivity is a career requirement.

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

  • Susannah Shepherd,

    I can think of another example of bypassing the GG in our history, although I am dredging my memory here and may get some of the details wrong.

    There is some evidence that the invasion of Parihaka was deferred because government had some doubts as to whether the Governor would sign the required paperwork, as he was known to by sympathetic to Maori over raupatu. Cabinet waited until the Governor had headed off to the Pacific Islands and the (in)famous Chief Justice Prendergast was acting as Administrator. Cabinet was pretty sure of their man there, and got his signature on the Proclamations as expected.

    Somehow I doubt that would work on Sian Elias...

    Wellington • Since Jan 2008 • 58 posts Report Reply

  • Lyndon Hood,

    On the question of taking up arms, a question (maybe more ethical than constitutional) that needs to be asked is what outcome you might reasonably expect.

    Will it work? Will you plan succeed, or fail and make things worse? Will a sucessful outcome be worth the messy transition? Some of this depends on how much of a risk-taker you are*, and whether a middling chance of a great gain is worth it.

    Will you really be able to install the style of government you want? It often ends in tears, and I think Machiavelli says something about good governance presupposing a good man and violent revolution presupposing a bad man.

    And I've heard tell the skills required to run a country are not the same as in a military organisation or an insurrection.

    Worrying about this at all makes me suspect I'm not a natural revolutionary.

    * (Hobbes, for example, assumes the revolution = destructive anarchy, therefore tyrannical monarchy is better.)

    Wellington • Since Nov 2006 • 1115 posts Report Reply

  • Lyndon Hood,

    Oh, and then there's the 'Fiji effect'.

    Wellington • Since Nov 2006 • 1115 posts Report Reply

  • Rich of Observationz,

    On Parihaka:

    New Zealand's path to independence has been evolutionary and the nature of its institutions have changed with the years. In 1881 NZ was a (mostly) self-governing colony, not an independent state. Sir Arthur Gordon, the Governor, was an appointed functionary of the British Imperial government and expected to intervene according to that government's policies.

    Hence his actions don't really set any precedents for a modern G-G (between 1926 and 1947, Britain and it's colonies cut sovereign and legislative ties).

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

  • Rochelle Hume,

    What would it take for me to want to rise up? Or you?

    An empty stomach always helps in an uprising...Is that a recession I see around the corner???

    Warkworth • Since Sep 2007 • 34 posts Report Reply

  • Shep Cheyenne,

    Just to quibble ... you talk of the Nuremberg Defense but interestingly you don't question the Nuremberg Prosecution and its legitamcy. Which seems to have a well known detractor.
    Chen of Chen Palmer & Partners a favourite of morning TV a wee while back infamously said something to the effect of "our constitution would make it legal to kill all Maori babies & it would be legal"- hmm.

    Since Oct 2007 • 927 posts Report Reply

  • Graeme Edgeler,

    you talk of the Nuremberg Defense but interestingly you don't question the Nuremberg Prosecution and its legitamcy. Which seems to have a well known detractor.

    Robert Taft?

    Absolutely, but the rejection of the Nuremberg defence applies in domestic law too, irrespective of whether the trials themselves were legitimate.

    We don't just allow military personnel to refuse to follow unlawful orders, we actually require it. I see no reason why this principle can't apply to instructions given by a Prime Minister to a Governor-General to assent to legislation.

    Wellington, New Zealand • Since Nov 2006 • 3215 posts Report Reply

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