Sunday, September 03, 2006

The Fraser/Kerr argument

Last week, we saw political commentator Chris Trotter making the Pinochet argument over Labour's election overspending. This week, his opposite number Matthew Hooten responds with an equally repugnant position: that National should respond to any retrospective validation of past spending by making Parliament unmanageable until the Governor-General either denies the Royal Assent, or calls new elections.

There is a large amount of sheer constitutional illiteracy in Hooten's piece. The Royal Assent was last refused in 1708, back in the age of absolute monarchy, and while the power certainly still exists in New Zealand law (see s16 of the Constitution Act 1986), it is questionable under what circumstances it could ever be used. And the Governor-General is not an independent political actor, and is obliged to act on the advice of the government-of-the-day - there is no "technically" about it. But besides that, Hooten is also floating a very dangerous idea: a constitutional coup, of exactly the sort carried out by Malcolm Fraser and John Kerr in Australia in 1975.

Like Trotter before him, this shows an appalling contempt for democracy. It is not the place of the Governor-General to unseat an elected government which enjoys the confidence of the House, regardless of what the opposition thinks of them. That right, to make or break a government, belongs solely to Parliament. If National thinks the circumstances warrant a fresh election, then they have a clear path available to them: convince enough other parties to join them in defeating the government on a confidence vote. But the fact they are instead openly talking of extra-constitutional action speaks volumes about their chances of success - and their lack of respect for our democratic system.


what if
1) the government wanted to pas a law that 99% of the public thought was abhorent. Or
2) pass a law that involved a EXTREME conflict of interest (for example let's say the cabinet conspired to murder the opposition, then make it legal)
3) had created a stalemate from which it could not otherwise exit (for example two opposition parties both stalling parliment but not wanting an election because htey would loose to a third party).

would the GG have legitimacy if he refused to sign?

I'm not sure but I'd be happy if he took the most extreme of the above to be legitimate.

I dont think this is one of those cases though.

Posted by Genius : 9/03/2006 05:28:00 PM

Genius, the Governor-General simply doesn't have the power to refuse assent. It was removed by the Letters Patent 1983, and was never used.

The system you so often defend is broken.

I/S - my thoughts here.

Posted by Lewis Holden : 9/03/2006 05:35:00 PM

Genius: I'd be happy - but it wouldn't be legal (though not in case 3; ineffectiveness is no reason for toppling a government; only a confidence motion or expiry of term or resignation can do that).

Lewis: interesting; I didn't know the power of assent was explicitly codified, but certainly if it was, then its removal means it is gone forever. Another blow for democracy against the useless appendix of monarchy.

Posted by Idiot/Savant : 9/03/2006 06:05:00 PM

This comment has been removed by a blog administrator. Posted by Aaron Bhatnagar : 9/03/2006 06:26:00 PM

IS - please make it clear that this is not what National is advocating, but what a journalist is advocating.

You might say that Hooten has ties to National, but after the way he attacked Don Brash a few months ago, its pretty clear that Hooten is not a part of the decision-making process in National. That article is solely the opinion of Hooten, and for what its worth, I think its a very poor idea to provoke by-elections in National held seats across NZ to protest Labour's corruption. And again, for what its worth, I do hold a minor post in the party.

Posted by Aaron Bhatnagar : 9/03/2006 06:27:00 PM

Maybe, but it is not as if you are going to fix it.

Posted by Genius : 9/03/2006 06:54:00 PM

As to the legality of the action itself (which seems to be debatable) I think that could well be irrelevant.

1) Just not doing it (legal or not) serves the purpose.
2) Good chance the GG would get fired for it anyway even if legal.

Posted by Genius : 9/03/2006 06:59:00 PM

AB: I think its quite clear inthe above that I'm responding to Hooten's comments, not any official statement from National. OTOH, with Brash channelling the sewer and frothing about "stolen elections", and National seemingly pursuing a deliberate strategy of trying to make the House unmanageable, people could easily draw the conclusion that they were already contemplating such a measure.

Posted by Idiot/Savant : 9/03/2006 07:02:00 PM

Idiot/Savant and lewis. The system you so often promote is broken.

Posted by Anonymous : 9/03/2006 07:21:00 PM

It's not quite correct that the power to deny assent is removed; the Sovereign still has the power regardless of the Letters Patent. The promise to accept the advice of Ministers isn't legally effective, since it could always be revoked anyway, and the Governor-General has all the powers of the Sovereign (excepting the power to overrule themselves within the time limit, obviously).

I do suspect though that in many cases the courts would actually deem the act to be in force anyway, because the power of witholding assent has fallen so far into disuse. It would cause some constitutional issues, so the GG would be advised not to do it, and if it did happen it's probable that the Queen would overturn it anyway. One advantage of a monarchy, actually.

As I recall there was a House of Lords case sometime in the sixties that deemed the enacting passage in legislation to have actual legal effect. That's the "Be it enacted by the Parliament of New Zealand:" part of our laws, but "Be it Enacted by the Queen's Most Excellent Majesty, by and with the Advice and Consent of the Lords Spiritual and Temporal, and the Commons, in Parliament Assembled, as follows:" (quite a mouthful) in British laws. It could well be Parliament that actually puts our laws into effect anyway by this point.

Posted by Anonymous : 9/03/2006 08:08:00 PM

A far better solution would be for National to invoke the "Mallard Doctrine", which holds that a govt can do anything, even terminate legal contracts, provided it gives clear notice of such prior to winning office. National can simply say that when they next win a majority, they will repeal Labour's validating legislation, and retrospectively force Labour to pay up, presumably with interest.


Posted by Anonymous : 9/03/2006 09:13:00 PM

M'Lud: while no Parliament can bind its successor (tm), that would likely run smack into the presumption against retrospective legislation which adversely affects people's rights - just as a bill which raised criminal penalties after the fact would.

Posted by Idiot/Savant : 9/04/2006 12:10:00 AM

I suppose they could pass it as a bill of attainder instead :)

Posted by Graeme Edgeler : 9/04/2006 08:38:00 AM

Anon - Nonsense. The Royal prerogative is fettered by Parliament, as Parliament "sits at the sufferance" of the Sovereign, who is a part of it. Thus, the typical caveat on the Sovereign applies: “The Queen reigns, but Cabinet rules, so long as it has the confidence of Parliament”. Removing the ability of the Governor-General to refuse the advice of their responsible ministers from the Letters’ Patent in 1983 repealed the said power. The Royal prerogative is not some well of mythical powers a sovereign can draw upon. In any case, to claim that the Sovereign would get involved in a constitutional crises belies Commonwealth experience over the last 50 years: Whenever there has been a crises, the Sovereign always states that it is an issue for the country in question. The Queen is smart enough to know that getting involved in, say, dismissing the Whitlam government or helping Mr Bishop in Grenada would bring about the end of the monarchy sooner rather than later.

Posted by Lewis Holden : 9/04/2006 09:39:00 AM

Professor Philip Joseph in "Consitutional and Administrative Law in New Zealand", the leading text, says, at p 677 "No Monarch since Queen Anne has refused the royal assent but there is no doubt that the power in law exists". Prof Joseph also makes clear, at p 678, that other options exist, such as threatening to resign instead of signing an unconsciousable Bill. Lewis is wrong.

Posted by Anonymous : 9/04/2006 12:18:00 PM

Anon: I think what Lewis is saying is that it is the power of the G-G to act against the advice of cabinet, not the Royal Assent itself, which has been removed. But it has the same effect.

Posted by Idiot/Savant : 9/04/2006 12:43:00 PM

Anon - I've read that text too, and I would note that Phillip Joseph is the only law professor I know of to argue that the power still “exists”. If the power has not been fully repealed, it has certainly been atrophied. You forgot to mention that the Constitution Act 1852 actually allowed for the refusal of Assent, whereas the 1986 Act only implies it - further, Joseph himself acknowledges that the refusal of Assent only applies to situations where Parliament passes a law he considers to be "illegal". This is in line with Joseph's view that Parliament is not Sovereign, a view that I do not agree with.

In any case, while the power might "exist", its ability to be used most certainly does not, on the basis on the convention of responsible government: The Queen reigns, Cabinet rules so long as it has the support of Parliament. In order for the Governor-General to refuse the Royal Assent to a Bill, the Governor-General would have to break this crucial fundamental convention. Because that will never happen, (the Prime Minister can have the Governor-General recalled anyhow) the power really doesn't exist.

Sorry Anon, no QED.

Posted by Lewis Holden : 9/04/2006 01:11:00 PM

Anon; for the most part I agree, however you did state, "It's probable the Queen would overturn it anyway". In my opinion the Queen would stay well clear of constitutional crisis abroad.

Lewis; Your first post states; "the GG simply does not have the power to refuse assent". This is inaccurate, it is true that the GG has a 'duty' to assent to legislation (by way of the LP and convention), however, he does have the power to refuse if he wishes, and force the PM to (for example) have him recalled or go the polls. The assent of whomever holds his office is required for the bill to become law, and that is actual power, although refusing duty will often have consequences (in much the same way as criminal omissions, such as, refusal to give a breath sample at a check point).

Your assertion that a GG would never break this convention is also just a guess. Sure, it has never happened, and the examples of when it may be justified seem extreme, but it is not altogether impossible.

Respectfully, james

Posted by james cairney : 9/04/2006 01:40:00 PM

I/S; The Whitlam/Kerr controversy was only possible as Fraser had control of the senate, and thus supply. National have no equivalent power to force the GG here, short of making lots of noise in protest.

Posted by james cairney : 9/04/2006 01:52:00 PM

James: not formal power, no - but Hooten is proposing explicit wrecking behaviour in an effort to force a crisis, in the absence of a majority.

Its a sad example of the Americanisation (or rather, Republicanisation, becuse this is Republican Party tactic) of our politics, and its not good for the stability of our political system.

Posted by Idiot/Savant : 9/04/2006 02:07:00 PM

A republican tactic?

You mean it was republicans who fled Texas(?) to prevent the majority democrats from passing an extraordinary re-districting bill?

And it was Senate republicans who threatened to filibuster [insert something here] earlier in the year.

Posted by Graeme Edgeler : 9/04/2006 03:29:00 PM

Graeme: no, but it was the Republicans who attempted to lock in their majority with an unusual and gerrymandered redistricting, and exploit it by doing [insert something here].

The tactic is to raise the stakes, push politics to the limit, to the utter brink. I don't like it, because That Way Lies Hobbes.

Posted by Idiot/Savant : 9/04/2006 03:45:00 PM

To expand on the above, one of the reasons our political system works is because of a tacit agreement to keep the stakes low. Governments don't as a rule use their temporary majorities to entrench themselves by gerrymandering the political system, or their control of the police and security services to jail ad harass their oppositions. And oppositions don't retailiate in kind when they gain power. And certain things (religion is the classic) are deliberately placed outside the bounds the politics and marked for non-interference. As a result, nobody feels too threatened, nobody is backed into a corner, and so nobody feels they are better off Appealing To God and resorting to arms.

Despite its constitution, this has never been particularly strong in the US. But I'd like to think that it has been strong here (with the obvious exception of Maori; governments have shown no compunction at all about backing them against a wall - but their response has typically been forbearance and patience rather than violence). The tactic on the right at the moment, of raising the stakes and whipping up their base by appealing to extremists (and that is exactly what Brash is doing by channeling the sewer) weakens this tacit agreement. And I do not think that is a Good Thing at all.

Posted by Idiot/Savant : 9/04/2006 03:58:00 PM

Chris Trotter and Matthew Hooden are managing to demonstrate that idiocy sits on both sides of the political fence.

Hooten suggests National walking out of parliament if it doesn't get its way. And then what? Taking out every National and Act MP would not stop parliament having a quorum. The remaining MPs could re-arrange the select committees, have a quick party to celebrate National's absence, and get on with it.

Or take Hooten's winner idea that the National MPs should resign their seats in protest one-by-one "starting with the most marginal seats" to force by-elections. I can just imagine Helen Clark saying "National MPs in marginal seats resigning - BRING IT ON!"

What a twit.

Posted by Icehawk : 9/04/2006 04:30:00 PM

If the GG did refuse the assent against the advice of Ministers, I do think the Sovereign would become involved: she, too, is bound to accept the advice of her Ministers. Involvement here probably means using her power within a few (three?) months to assent anyway, and possibly recalling the GG too if advised (it might actually be a requirement if assent has to be given in person; we can't really have Lords Commissioners).

It is the Sovereign who is required to accept Ministers' advice, and the GG as her representative. I don't see why that would change, especially given the explicit additional power given her, simply because the GG denies (or grants) the assent.

The Whitlam case does not contradict this, since the GG did have the power to do that, and hadn't been advised to do otherwise by Ministers. It may be "an issue for the other country", but she is supposed to accept the advice of her Ministers herself.

Posted by Anonymous : 9/04/2006 04:40:00 PM

Anon: you're forgetting something: If a G-G ever refuses assent, the PM can sack them (sorry - "advise the sovereign to sack them", but as the sovereign is bound to obey such advice on pain of no longer being the sovereign, then its a moot point), and appoint (sorry, "advise the sovereign to appoint" - but again, its a moot point) one who will.

A monarch digging their heels in against a government with the confidence of Parliament is unthinkable (not to mention unprecedented; the last refusal of assent was pre-responsible government). And if it ever happened, you'd see the same solution pursued in the C17th: an assertion of the sovereignty of the elected Parliament over that of the unelected monarch - though likely without the subsequent decapitation.

Posted by Idiot/Savant : 9/04/2006 05:24:00 PM

Anon: What do you base that assumption on? The Sovereign has remained out of other Commonwealth democracies constitutional issues regarding the Gg. Why would this example be different.

Sure, this example regards the refusal of assent, whereas other examples (generally) concern the maintenance of democratic government, but there would need to be pressing reasons for such direct interference with the politics of a foreign nation, and no such reason would exist here. The one thing this Queen has been is politically uncontroversial, to depart from the precedent of non-interference would simply never happen.

The only thing she would do in this instance, is recall the GG, and appoint one that would assent, at the request of the PM. The dear old thing is frightfully concerned with propriety.


Posted by james cairney : 9/04/2006 05:32:00 PM

Sorry to cover same ground as I/S, I hadn't read that post when I began.

Also Anon, I assume you are the same anon as above? any chance of a nickname or the like, you've clearly got some ideas that are worth reading.

Posted by james cairney : 9/04/2006 05:38:00 PM

I'm the same as the one who mentioned the Letters Patent and the Sovereign involving herself; not any of the others.

The Sovereign would involve herself because that's the entire point of that provision of the rules: the Queen has the power, within three months (I think), to overturn the decision re: assent of her Governors-General in the Commonwealth Realms. And it's she who's required to accept the advice of her ministers as stated in the Letters Patent; her Governors-General do that on her behalf. This is different to similar situations elsewhere.

It is of course very likely that in this case the PM would have the GG recalled, if the GG didn't sack her first. My reading of the rules, though, is that the Governor-General (the office, not the individual) can't overrule himself, so the Queen would need to do this herself on the request of the Executive Council. The alternative would be that Parliament pass the bill again, which would need to be by leave to get around the Standing Orders (no bill on same topic in session). It could also be promulgated entirely as an Order-in-Council. I think that either of those is less desirable.

Another possibility is that the courts would rule that the law is in effect anyway, and I don't think that's unlikely, but it would take a considerable amount of time for that to come through. It probably couldn't start going through the system until after the date the law was due to take effect, and that sort of limbo raises all sorts of ex post facto problems.

My personal preference would be for Parliament to be able to override a veto (strictly, a "the Queen will consider it") of this type by majority vote, or even better for the signing of bills into law to be vested in the Speaker or Parliament as a whole and so happen automatically. That would also rule out the possibility of a minority government vetoing legislation.

I'd like to step away a little from the "empty promise" part I mentioned; while it's obviously true in a technical sense, it isn't in a practical one, so I overstepped a little there in my rhetoric.

Posted by Anonymous : 9/04/2006 10:03:00 PM

The Herald reports that Labour has backed away from validating legislation, so the threats from the right have worked in terms of stopping it, and the debate here about constitutional wreakage becomes purely academic.

Posted by Anonymous : 9/05/2006 08:25:00 AM

Anon - where does the three month rule come from?

I think your solution is a practical one, although perhaps we should abolish the Royal Prerogatives altogether...

Posted by Lewis Holden : 9/05/2006 11:03:00 AM

The three-month rule was agreed at the 1926 Imperial Conference. I don't believe the time was stated explicitly; it was meant to be sufficient for a delegation from one of the Realms to reach London to petition the Sovereign in person.

Some states have codified it as a part of the regulation of subnational territories, I think this may have been done in Australia as an aside in setting the rules for the chain of assent in state governments.

I would prefer to abolish the Prerogatives here, and vest them as applicable in the Cabinet, Speaker, or Parliament as a whole.

Posted by Anonymous : 9/05/2006 11:44:00 AM