Wednesday, October 18, 2006



A monarchical fiction

I'm listening to the House at the moment, and they seem to be involved in a long debate which turns on the claim by the opposition that the Governor-General might realistically refuse assent to a bill. It's a point which has been quite popular of late in opposition circles (see in particular Matthew Hooten's recent call for a constitutional coup), but it is a monarchical fiction. While s16 of the Constitution Act 1986 requires that bills be signed by the Governor-General before becoming law, the last time the Royal Assent was refused was in 1708 - and then on the advice of Ministers. It has never happened under responsible government, and for a Governor-General to refuse assent to a bill when advised by Ministers to sign it is now simply unthinkable. Even those who do not think it is unthinkable (notably Phillip Joseph) view the power as so tightly circumscribed as to be effectively nonexistent; it is patently not the case (as National is currently asserting) that a Governor-General could wake up one morning and say "I don't feel like signing this". To do so would be to break our most fundamental constitutional convention, that

the Queen reigns, but Cabinet rules, so long as it has the support of Parliament

It is not the role of the Governor-General to be an independent actor or act as any sort of right-wing check on our democratically elected Parliament. Instead, their job is to host garden parties and sign whatever is put in front of them. To see a party openly questioning this in Parliament is stunning, and it shows how radical and desperate and contemptuous of our democratic system the National Party has become.

Update: Lewis has an excellent post on a related point which spells it out:

The Governor-General does not have the ability to refuse Royal Assent to legislation; if not because the power was repealed by the Letters Patent 1917 then by the repeal of the relevant provisions New Zealand Constitution Act 1852; if not by implied repeal then because the Governor-General is bound by the convention of responsible government to act on the advice of the government of the day; if not convention then because the Prime Minister may have the Governor-General recalled by the Queen at any time.

(Original emphasis).

That about sums it up. What we have is the atrophied appendix of a once-absolute monarchy. And for the record, I'm all in favour of chopping it out before it turns septic. If we are to have any form of veto power by the Head of State, then it must be codified and brought into law to act on behalf of the people - rather than left as some vestige of "divine right" to be used against them.

25 comments:

Someone on Farrar linked to an online petition to this effect

http://www.petitiononline.com/mod_perl/signed.cgi?nzgg&1

although it would probably be slightly more compelling if it wasn't talking about intent to "retrospectively legalise previous violations of the Electoral Act". Electoral Act.

Interesting times, when all the libertarians in the initial signatures are demanding that the GG override the will of Parliament.

Posted by Lyndon : 10/18/2006 05:11:00 PM

Oh, and signatures on the petition have more than doubled (800 - 1800) since after lunch.

Posted by Lyndon : 10/18/2006 05:14:00 PM

I'm not surprised at all; Libertarians don't care about democracy, instead favouring the tyranny of contract and the absolute power of wealth.

It is however amusing to see a bunch of people who typically express a desire to see the last king hung with the guts of the last priest going grovelling to the representative of an unelected head of state for an expression or arbitrary monarchical power. You could almost call them hypocrites...

Posted by Idiot/Savant : 10/18/2006 05:35:00 PM

I haven't complained about anything to the Governor-General but I can understand why people might want to do that as a last resort in a constitutional wasteland like New Zealand where the government can change the law under an active court case it knows it would lose just to get itself off the hook.

Posted by Bernard Darnton : 10/18/2006 05:59:00 PM

Didn't a minister in the Muldoon govt once say that even if a particular bill was passed by parliament, he'd advise the G-G not to sign it? What would our current conventions do in that case; Parliament passes a bill but the Exce council says don't sign?

M'lud

Posted by Anonymous : 10/18/2006 06:42:00 PM

I'm not sure about Muldoon, but according to Joseph's Constitutional and Adminstrative Law in New Zealand, in 1877 the Premier (George Grey) advised the Governor to refuse assent to a bill which had been passed by both houses of Parliament. The Governor refused the advice, and signed. Parliament trumps the executive, as it damn well should.

Posted by Idiot/Savant : 10/18/2006 06:54:00 PM

I/S,

I had thought that of the left-wing NZ bloggers, you might have the guts to speak out against Labour's (& UF, & NZF) shocking corruption.

But no. You stick up for Labour, defending the indefensible, simply because they're a left-wing party & their opponents on this issue are National & the Libertarianz.

How can you possibly think that what Labour have done - i.e. retroactive legislation to legalise their wrongdoing and quash a lawsuit against them - can be justified?

At least Jordan Carter is honest about the fact he's a Labour party hack.

Posted by Duncan Bayne : 10/18/2006 08:10:00 PM

Muldoon planned not to present the anti-nuclear private members' bill to the GG for signature if it had passed. But it didn't pass so the crisis was averted.

Posted by Anonymous : 10/18/2006 08:23:00 PM

I signed the petition, not because I expect the GG to refuse assent, but because it is an expression of disgust that B1 and B2 cannot 'spin'.

2,972 signatures so far.

Posted by kiwi_donkey : 10/18/2006 08:37:00 PM

I signed the petition, not because I expect the GG to refuse assent, but because it is an expression of disgust that B1 and B2 cannot 'spin'.

2,977 signatures so far.

Posted by kiwi_donkey : 10/18/2006 08:38:00 PM

The victory is HIGHLY unlikely to be the GG not signing the law BUT getting a huge number of signitures is the REAL victory.
making a call to the GG is just a way of doing that.

GNZ

Posted by Anonymous : 10/18/2006 08:41:00 PM

Hmmm, it seems I don't need to repeat myself here.

Posted by Lewis : 10/18/2006 10:49:00 PM

Duncan: There's nothing "corrupt" about it. Retrospective validation of unlawful spending is not an unusual occurance, and is in fact legally required in our constitutional system. Take a look through the various Appropriations (Financial Review) bills on the Parliamentary website; three out of four of them have a section in the explanatory note saying that such and such a clause "validates unappropriated expenses incurred for the [200X/0Y] financial year". This is not "corruption", it is standard procedure.

Normally, such bills are not passed under urgency. However, the second half of this bill, which confirmed existing rules for Parliamentary spending so that Parliament could continue to perform the functions we expect of it, was extremely urgent. The A-G's nonsensical and retrospective ruling simply could not be allowed to stand. The bill could have been split into two, in which case the second part would likely have had another ten votes, but given that Parliament clearly felt the A-G's ruling was (to put it politely) mistaken, and that there was the threat of further politically motivated investigation of all party's spending (and not just on advertising) which would only drag Parliament further into the muck (and believe me, people were very keen to hoist Brash by his own petard), I can well understand their desire for a quick validation and confirmation. Now, perhaps, they can get on with their real job.

Posted by Idiot/Savant : 10/19/2006 12:30:00 AM

"the second half of this bill, which confirmed existing rules for Parliamentary spending so that Parliament could continue to perform the functions we expect of it, was extremely urgent"

Not entirely true, I/S. The interpretations the Auditor-General made were of the words "Parliamentary purposes" an "electioneering" contained within Speaker's directives. If the Parliament was concerned that unworkable rules would apply into the future, the Speaker could simply have adopted appropriate definitions for those words in a new directive. There was no urgent need for legislative clarification because there was no need for legislation at all.

See Dean Knight's comments here:
http://laws179.blogspot.com/2006/10/validating-legislation-necessity.html

Posted by Graeme Edgeler : 10/19/2006 02:02:00 AM

>>>To see a party openly questioning this in Parliament is stunning, and it shows how radical and desperate and contemptuous of our democratic system the National Party has become.<<<

My thoughts exactly. The right has whipped up a mad frenzy in this country by exploiting a huge well ignorance about the actual mechanisms of govt. The more I find out about this Brady report, the more I am convinced that if not actually corrupt himself, that the AG has been grossly incompetent, indulged in a dangerously partisian abuse of his essentially neutral public servant role, and in the long run inflicted heavy damage upon his office.

However our lazy and now deeply anti-govt media is going to play the "theft" and "corruption" nonsense because it is easy sensationalism, and they all personally want to stick it to a govt that has held back on greasing their wallets with tax cuts.

Still if there is one strategy that might work out of all this...there is still time to give Brash plenty of old rope to hang himself with.

Posted by PhilipWilkie : 10/19/2006 04:52:00 AM

"Normally, such bills are not passed under urgency."

Well, urgency is used with gay abandon by governments of all persuasion to avoid debate. Normally I am against it but given outritght lies that National have been spinning I see no reason to give them further weeks and weeks of exposure.

I said a while back that National have been trying the equivalent of a constutional coup. At the time they were picking on Labour Electorate MPs to try and force a by election. Subsequent revelations about the EBs spying efforts would seem to back up this assertion as have National's current attempts to present the election result as illegitamate.

Their cheerleaders in the press continue to get free rein. I see Rosemary McLeod is calling the government vindictive and petty in relationship to the EBs! Those poor innnocent soles who just wanted to help Don Brash form a government by any means fair or foul should, it seems, continue to escape scrutiny and receive favours from the Government that are deprived from the rest of us poor soles who's only sin is that we happen to be voters.

So let's see the ledger:

1. Don Brash forms a close relationship with the richest woman in NZ, also deputy chair of the BRT.

2. Said woman attempts to blackmail the National party into picking DB as their leader ("no Brash No Cash").

3. National caves.

4. DB says he will accept support from "anyone" to help him get to power.

5. DB has meetings with "anyone".

6. One of those "anyone"s spends $1.2million to help get National elected.

7. Same "anyone" gets involved in coalition talks with minor parties to help DB get elected.

8. Same "anyone" spies on DB opponants to try and dig up shit on them.

9. National run with said shit in parliament.

10. Despite the outcry DB continues to hold meetings with these "anyone"s.

11. DBs memory lets him down again. This by the way is at least the third time it has occurred. The first was when he unilaterally gave away our nuclear free status, the second when he met with Rebublicans to discuss support for the election.

shall we go on?

Posted by ald : 10/19/2006 08:43:00 AM

There's several remedies open to those who disagree with this measure:
- persuade the NZF or United Future caucus to withdraw support.
- persuade sufficient Labour MPs to withdraw their support
- in the election that's due no later than 2007, persuade the public to vote against Labour

But no, the loony right (several thousand of them - maybe 0.1% of the electorate) try and convince the unelected representative of an unelected monarch to try and break a 300 year old constitutional convention.

The real back-story to this is that the right believe they have a divine moral right to govern and are increasing upset at being denied this for the last seven years by an unreasonable electorate.

Posted by Rich : 10/19/2006 10:22:00 AM

2008, surely?

Posted by Anonymous : 10/19/2006 11:24:00 AM

ald,

1. A politician didn't tell the whole truth!! Has the world turned upside down??

2. Parties elected the person most likely for them to win the next election! God save us!

3. Politicians meet with people some of whom may have done things that arent illegal but are embarrasing. (Christ - we need a legal form before we can meet MPs where we must declair all our religious affiliations and if any of those groups have done anything that might be considered embarassing!)

politically I think it is a good idea for brash to not met with the EB and it might be a good idea for Helen not to meet with environmentalist groups or anti abortion protesters or womans rights activists or whatever. But It is still wrong to make a blanket rule to do so. In a sense it is an agreement to remove from the political system (the major part of it anyway) a set of people. We should discourage this happening.

Posted by Anonymous : 10/19/2006 02:11:00 PM

yup, '08.

Posted by Rich : 10/19/2006 09:57:00 PM

It is by no means a creature of the National Party. This petition is simply a reflection of how arrogant Labour has become in making itself above the law, how corrupt that actually is, and the dangerous implications that it has for wider NZ society.

Just tell me why it was necessary to
- Make this a confidence and supply measure
- Push it through under urgency.

In the first case, to force the support parties to vote with the government or abstain as appropriate with their C&S agreements.

In the second, to shut down and stifle as quickly as possible the public debate which has cost Labour dearly in the polls. And to also shut down Darnton's court case which would prove to be a further embarrassment to the government, and also to shut down the opportunities for further debate in the House.

In reply to Lyndon's comment about libertarians, I think they all would agree that Parliament should never have the absolute sovereignty that Labour has tried very hard to entrench over the years.

Posted by This Is Christchurch : 10/20/2006 01:37:00 AM

Thankyou Mr Bayne for restoring some sanity in this discussion.

If this event brings about further discussion about the benefits of a US type constitutional arrangement with very real checks on the oligarchical absolutist tyranny of the Cabinet, then it will not be before time.

The gravity of this matter far transcends any temporal issues relating to who is in power and opposition.

Posted by This Is Christchurch : 10/20/2006 01:40:00 AM

Mr I/S. I don't care what constitutional provision is standard procedure. It is a grave abuse of democracy that the much maligned United States of America has far more controls on the tyranny of the government than our supposedly model land.

The only nonsensical thing about the AG's ruling is the largely fictional spin that the ninth floor of the Beehive has generated to justify this ridiculous law.

It is really stretching credibility to see the same tired old anti-National arguments being put up by the hard core of the Labour party in support of this draconian legislation.

The matter of the EBs is pure hypocrisy: as has been well noted, Labour did not care a whit about similar activities by its own supporters until the opportunity has arisen to whitewash over the pledge card misappropriation. In fact this is a good way of describing the whole tissue of mendacity that has been coming out of ninth floor damage control for the past couple of months.

Posted by This Is Christchurch : 10/20/2006 01:47:00 AM

TIC: Just tell me why it was necessary to [m]ake this a confidence and supply measure

Because in our constitutional system, any appropriation bill, or any bill which approves or permits the expenditure of funds, is by definition a confidence measure.

It goes back to the Middle Ages, when the English monarchs first assembled Parliament for the purpose of levying taxation. Parliament, even though unelected, quickly figured out that this gave them serious power, and they've been leveraging their control of the purse strings ever since. Eventually, they used it (and the preference of George I to stay in Hanover) to force the monarch to select their Ministers from Parliament and let them run the country while the monarch saw to their gardening, dogs, mistress, and whatever else it is that monarchs do. This then turned the voting of supply into an effective motion of confidence in the Ministry, with defeat suggesting that the monarch select Ministers with more friends. Add parties, elections, et voila! Responsible government!

You can learn more about how appropriations work in our Parliamentary system (and how government is accountable to the House) here.

Posted by Idiot/Savant : 10/20/2006 02:20:00 AM

TIC: I don't care what constitutional provision is standard procedure.

You don't? So, why are you outraged again?

You can hardly claim that retrospective validation is a "grave abuse" against our constitional structure if you don't actually care what that constitutional structure is, and aren't interested in the facts about how it normally operates.

It is a grave abuse of democracy that the much maligned United States of America has far more controls on the tyranny of the government than our supposedly model land.

That would be the same United States of America where the president is not accountable to the legislature, and therefore not on an everyday basis to the people they represent, where the executive claims the right to unilaterally reinterpret the meaning of laws passed by the legislature, and which has just legalised torture and abolished Habeas Corpus?

Yeah, definitely a model system that.

A question for any American readers: how does the US budgetary system handle this sort of event? What happens if a government department spends money without authorisation from Congress? (say, if the Director of the FBI buys himself a tank without any budgetary authorisation to do so, and outside of his "petty cash" limit)?

Posted by Idiot/Savant : 10/20/2006 03:13:00 AM