N.Z. in lock down: DAY 49


Yesterday was DAY 49 of New Zealand in lock down as we fought the COVID19 pandemic. It was also the end of LEVEL 3 lock down. It ended at 2359 hours last night. The LEVEL 2 transition to the post COVID19 future began at 0000 hours 14 May 2020.

The last couple of days in Parliament have been a massive bun fight over the legality of the new COVID19 legislation ensuring that the Government management of it under LEVEL and LEVEL 1 is legal. Without this legislation it would be nearly impossible for the Government to successfully wind up the war on COVID19.

It is legislation with some critical flaws. Some have been repealed to avoid potential legal challenges or because public compliance was going to become an issue. Some are still there:

  1. Initially the Government wanted a 2 year sunset clause that would see the legislation expire at the end of a two year period – National succeeded in getting this amended to a Parliamentary vote every 90 days or so
  2. An enforcement officer may enter, without a warrant, any land, building, craft, vehicle, place, or thing if they have reasonable grounds to believe that a person is failing to comply with any aspect of a section 11 order (S. 20)
  3. The speed with which this has had to go through Parliament means there is no way it can possibly be solidly constructed legislation – in order for the legal basis of LEVEL 2 and LEVEL 1 to exist, the legislation had to pass by 2359 hours, which meant no public input and no select committee stage
  4. Section 11 orders appear to be a watered down version of the provisions of Section 70(1)(m) of the Health Act 1956
  5. Section 24(4) appears to void any legal appeal

The opposition has come from all parts of the spectrum N.G.O.’s such as Amnesty International talked about the concerns that they have for the . Human rights activists have registered their dismay as well, whilst people like Lizzie Marvelly expressed concern that it would unfairly target Maori.

The right have also expressed criticism. National, despite winning some concessions opposes the bill and will not be voting for it in Parliament. Nor will its traditional ally A.C.T. As I cannot recall any other time when legislation was crafted like this and with such haste – the passage of the Canterbury Earthquake Recovery Authority Act was not attempted until late March, 2011, some several weeks after the Christchurch earthquake – I have noted the short time frames that have been provided in the advent of Section 11 orders. These can be made with 48 hours written notice; can if the Director General believes a COVID19 outbreak to be in progress be made in shorter time frames. Notably – and alarmingly – any appeal appears to be effectively void by Section 24(4).

As some kind of legal basis needs to exist to enable LEVEL 2 and LEVEL 1 to have any legal basis, this legislation will invariably pass since the Greens and New Zealand First are voting for it in addition to Labour. However that does not mean it is good legislation – it is crap and when you have both sides of the House attacking it and look at why this was not drafted earlier in the COVID19 emergency, it becomes clear that the Government did not do due diligence.

The only thing that we can hope for is that New Zealanders start to wake up to the fact that our constitutional framework is not adequate for keeping Government in check; that we need to strengthen the checks and balances. And soon. We also need to introduce civics in schools quickly because the longer we do not teach students about how the New Zealand legal system, Government and so forth work, the greater the number that do know understand their rights and responsibilities, will be when we need them the most.

The worrying case of the ousted Auditor General


Over the last two days in The Press, journalists have been retracing the events that lead to the Auditor General being ousted by Parliament in what is potentially one of the most worrying challenges to an official who is supposed to be left alone. They are retracing events that potentially call into question the independence of the most powerful watch people in New Zealand. And which is being called an unprecedented breach of the constitutional framework.

When the Auditor General’s office is tasked with a job, the outcome of it is something New Zealanders – apolitical or not – should pay attention to. It is the work of an office whose primary role is to ensure that New Zealand public entities do their job, are accountable for the work they do and are at their most efficient – so says the official description on the website for the Office of the Auditor General.

Martin Weavers was effectively made to resign to preserve himself after Members of Parliament told him the alternative was to be labelled disabled. It stems from a fraud case that happened at a Government department he had been head of prior to becoming Auditor General, a role which Mr Matthews is meant to act as the chief watch dog for fraud. Parliament thought he was not fit for the role. A hearing where he was not allowed to have any witnesses speak for him was considered hostile and when he was informed the following day that he was not fit for the role and that Parliament wanted him gone, his lawyer challenged the then Speaker of the House David Carter on the grounds. Mr Carter said because he was disabled – which Mr Matthews said is simply not true.

In 2018 Mr Matthews’ legal team consisting of former Prime Minister Sir Geoffrey Palmer, his lawyer Marie Scholtens and former National Party Attorney General Paul East continued fighting for him. Mr Palmer said that in effect the case had led to a “weaponised” environment in the Officers of Parliament Committee.

Current Speaker of the House Trevor Mallard has refused to reopen the case. But Mr Matthews is now petitioning Parliament to reopen his case. National Party Member of Parliament Nicola Willis accepted the case after Labour M.P. Grant Robertson failed to do so.

I believe Parliament have in effect attacked the independence of the watch dog in treating Mr Matthews in the manner that they have. It appears that Members of Parliament seem not to understand this is a matter that might affect Mr Matthews’ rights under the New Zealand Bill of Rights Act, 1990. Furthermore, only four grounds are set out as potential grounds for removal of the Auditor General and none of those were obviously met in making Mr Matthews’ resign in 2017.

This leads to questions which need to be asked of Parliament:

  • Will Parliament account for its actions in an appropriate setting
  • If Parliament is found to be in the wrong for having treated Mr Matthews like that will they accept the findings
  • Will moves be made to strengthen the Office of the Auditor General so that future such attacks cannot happen
  • Who will make sure that this happens

Time for a Constitution Party?


As the Queen begins to wind down her daily activities, and her husband Prince Philip, Duke of Edinburgh enjoys retirement it is time to consider what sort of constitutional arrangement New Zealand wants going forward. New Zealand does not have a formal constitution per se – its current arrangement is a framework of six Acts of Parliament and the Bill of Rights 1990.

I have tried to outline my thoughts on the best process to revisit our arrangements, which I expect will come under scrutiny once the Queen dies. But before then there is considerable work to be done. New Zealand needs to have a debate about our interpretation of our constitutional framework – can we even consider it to be that, and if not what is it?

Whilst I have outlined my ideas, I have wondered about whether or not New Zealand needs a Constitution Party or similar in Parliament to push the issue. Of course, like every other party it needs to be established and needs to get into Parliament. Would someone like Sir Geoffrey Palmer be a suitable person to lead it – an obscure figure from the political wilderness would be meaningless. Colin Craig reckoned he could lead the Conservative Party into Parliament. After spending hundreds of thousands of dollars of his own money he and his party managed 2.2% at the 2011 election.

With only a few years until the Queen either abdicates or dies, New Zealand cannot afford to continue taking a “she’ll be right” approach to our constitutional arrangements. But without some sort of organization or party to turn the spotlight on something many are happy ignoring, the potential for a problematic knee jerk “what do we do now” approach exists.

Answering questions about becoming a Republic


As I watched coverage of the Duke of Edinburgh’s car crash I was reminded that this is a man who is in his late 90’s. I was also reminded that his wife, and New Zealand’s head of state Queen Elizabeth II is also over 90. With their great and advancing age, one must assume that they will be starting to wind down their official engagements.

And as they contemplate whether to, or how to wind down their engagements, New Zealand needs to be stepping up its national conversation about our constitutional arrangements once they depart.

I have never seen the need for a foreigner as New Zealand’s head of state. As a grown up nation that has a degree of civility lacking in many others, I believe New Zealand is more than capable of having its own head of state. However I know many people who do not believe New Zealand is ready to become a Republic, or that it is not needed or welcome.

I have mentioned my reasoning for a Republic, the process I believe would be necessary to achieve it and what it might look like in past articles. This article is more about addressing public concerns about how a Republic might look and function. This is part of the debate that is necessary to have in order to inform public opinion prior to any attempt at changing how New Zealand determines its Head of State.

What will happen to the Treaty of Waitangi and the settlements reached under a Republic?

Under a Republic, New Zealand will transfer responsibility for the Treaty of Waitangi from the Crown to the Head of State. The Treaty itself and the settlements reached with Iwi will not be affected in any way by this change. This is commonly acknowledged by the Monarchist League as well as the Republican Movement.

Will New Zealand be made to leave the Commonwealth should it become a Republic?

No. Most nations in the British Commonwealth are already Republics – India, Pakistan, South Africa, Singapore, Malaysia, Nauru, to name just a few. There are 52 nations in the Commonwealth and 36 of them are Republics.

New Zealand’s heritage is British

This is a fortunately dying tunnel vision argument that ignores the fact that New Zealand is now a multicultural nation with large Pacific Island and Asian communities. Nothing about becoming a Republic will change our culture – we will still play cricket and aspire to one day win the Cricket World Cup; Queen’s English will still be the dominant language and New Zealanders will still be as welcome as they have ever been in the United Kingdom.

Should New Zealand become a Republic, what are the types of Republic?

There are several types of Republic. The one that New Zealand is physically closest to in terms of governance is the Parliamentary Republic. This type means that the President would largely be a figure head with mainly ceremonial but also constitutional powers – greeting Heads of Government and Heads of State, appointing and dismissing Cabinet members and – heaven forbid this happen – enact any necessary declaration of war on a foreign power.

A Presidential Republic is more like the United States, where the President has a large role in the day to day running of the Government and may make key foreign policy decisions. This is in addition to the ceremonial and constitutional roles as mentioned above.

There are other types of Republic including Semi-Presidential Republic, where the Head of State takes responsibility for foreign policy whilst the Head of Government looks after domestic policy. Examples include France and Taiwan.

Other types exist as well, but these are the three types New Zealand would be most likely to vote for a number of simple reasons. New Zealand is not Islamic so therefore we cannot have an Islamic Republic. The best known such example is the Islamic Republic of Iran. The Peoples Republic and Democratic Peoples Republic are typically aligned with Marxist-Leninist politics and with the exception of the Peoples Republic of China and Laos Peoples Democratic Republic, all have failed.

Republics are unstable, so why have one?

So are Monarch’s. Tonga, one of the worlds last Absolute Monarchy’s was plunged into devastating riots in 2006 as a result of widespread anger at the lack of democratic progress in the Government.

Swaziland (now Eswatini) is another. King Mswati III is well known for leading a luxurious lifestyle that is increasingly the cause of internal unrest, as well as international criticism. He holds all the powers of the state, as well as holding control over the legislature and the courts.

 

Winston Peters ignites flag debate


Acting Prime Minister Winston Peters has reignited the flag debate, two years after a national referendum rejected the idea of a new flag. The restarting of the flag debate came after he called on Australia for reasons I am not yet clear on, to change their own flag – imagine that, a(n acting) New Zealand Prime Minister telling Australia to change its flag – because New Zealand had apparently had its flag longer and the Australians had merely copied us.

I actually support changing the flag. There is however a simple reason why I refused to support the referendum in 2016 – it was too sudden for many New Zealanders and raised a bright red flag: why now? What was the then Prime Minister John Key trying to hide or divert our attention from? It just all seemed suspicious.

But also, this is the flag that thousands of New Zealanders fought and died for. This is the flag that my Grandmother’s brother Lance Corporal Eric Dennis Green died for. Whilst the wartime generation is still alive, this is not the time to change that flag.

However, the correct procedures I believe were followed for having a flag referendum. The referendum was to happen in two stages:

  1. Ask whether the public want a flag change or not – this would be a simple YES/NO referendum. It would be binding, meaning whatever outcome would have to be respected and acted on by the Government
  2. ASSUMING the answer is YES, then ask from the two most popular designs, which flag should be our new one

None of the designs in the 2015 competition, or the two that were shortlisted should New Zealand have said yes, were inspiring in the least. In fact Red Fern looked more like a corporate logo than anything else.

I have had thoughts about what a flag could look like. One idea that I have had would be the outline of a Kea (nestor notabilis), New Zealand’s cheeky and inquisitive alpine parrot whose behavioural characteristics I think nicely sum up how New Zealanders aspire to be – social, inquisitive about the world around them and perhaps a tad cheeky.

It will however have to happen at an appropriate time. The earliest such occasion that I can think of would be the death of Queen Elizabeth II, our reigning sovereign. At that point it would be appropriate to go through the full rigarmole – seeing if the people of New Zealand wish to set about overhauling the constitutional arrangements, changing the flag, and then adhering to their wishes, whatever they may be.

So, the day of a new flag is coming. It was a premature dawn on the idea in 2016 and New Zealanders knew and understood it then. But that dawn is coming – it just might be another several years.