A Very Kiwi Coup: Extended Analysis

By Ian Wishart, extracted from Absolute Power

Failings of the existing checks and balances aside, I believe you can pinpoint the wider problem to a constitutional dilemma that has had considerable discussion behind the scenes, but almost none in the daily media. Investigate first raised it all the way back in February 2000 – the theory that New Zealand’s current political system is, to put it bluntly, technically illegal.

Novel and crazy as it sounds, here’s how the argument goes.

Constitutionally, New Zealand was clearly once a lawful British colony – a far-flung suburb of London governed ultimately by Westminster, acting via a colonial government. If you can imagine a picture of a tall tree, with the main trunk representing Great Britain, you’ll follow what I am saying here. One of the major branches of this tree represents the New Zealand colonial government, elected by the Queen’s subjects in New Zealand but ultimately getting its constitutional support and authority from the main trunk: Great Britain.

OK, so what happens when New Zealand declares itself independent from Britain? In legal terms, the colonial politicians sitting on New Zealand’s tree branch begin sawing the branch off that they are perched on. At the moment they finally cut the ties to Britain, the branch drops to the ground, unsupported.

This is because, in constitutional law, the branch (New Zealand) is no longer connected to the tree (Britain).

But here’s where the problem arises. The New Zealand colonial government did not originally gain its absolute authority to rule from New Zealand voters, but from an Act of the British Parliament. It was the British Parliament who created a subordinate parliament for New Zealand. New Zealand voters could choose which politicians sat in it, but they could not choose to make a change in the parliamentary system itself.

So, when the NZ politicians sawed off the tree branch they were sitting on by declaring independence in 1986, they lost their right to govern that very day. In legal terms, the colonial government that finally severed ties with England had no legal powers to continue governing without an immediate fresh election, not just to let voters choose between one party and the other but, more substantially, to get voters to ratify the new constitutional position.

In New Zealand, this was not done at the time of independence from Britain, and has not been done since. Instead, the administration in power the day before independence was the same administration the day after, as if they had miraculously remained sitting in thin air, next to the tree trunk, whilst the branch supporting them crashed to the ground.

If the tree doesn’t do it for you, try an electrical analogy. The New Zealand Government is a giant light bulb whose wires track back to a power supply

396 Unbridled Power, p122

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in England. When the plug is pulled (independence) the lights go out for the Government. To plug the lights back in, the New Zealand Government and political system has to find another power source for its authority to govern – the people.

At the heart of the issue is the essence of independence. The British Crown cannot make a colonial government independent, it can only grant independence to the entire colony. It is then the responsibility of the entire colony to decide how it will handle its newfound independence, what political system it wants and so on. For example, the parliamentary system set up for colonial purposes might not be ideal for an independent nation.

Independence is not a mere rubber stamp in a bureaucrat’s journal – it is a fundamental shift, a constitutional earthquake if you like, that changes the entire power base of a nation.

In most countries – East Timor being a recent example in our neck of the woods – independence is marked by the lowering of the colonial flag, and then a referendum to ratify a new constitution. Such constitutions usually acknowledge the supreme sovereignty of the people, who then delegate certain powers to an elected government to exercise on their behalf.

This is actually a very important point. Such a constitution sets out in legal terms that the “people” call the shots, and “government” is their servant – not the other way around.

What happened in New Zealand’s case was actually quite sinister, in constitutional terms. Instead of the New Zealand people gaining independence, the process was hijacked – the colonial government actually seized for itself the absolute power previously reserved to the British Crown.

One evening, the citizens went to bed acknowledging the King of England as sovereign, and the next morning they awoke to the news that the crown had passed to the Government in Wellington, without a vote. Suddenly, we all woke up with a new master: the Wellington political machine, unleashed for the first time, and hiding behind the mask of “the King of New Zealand”.

Ostensibly, this feat happened in 1947, when New Zealand ratified the British Statute of Westminster Act from 1931 granting the colonies independence, but in truth the stunt was not finalized until the Lange administration introduced the Constitution Act of 1986, and the Imperial Laws Application Act of 1988.

Arguably, 1986 is the year New Zealand finally became independent from Britain. It was this constitutional sleight of hand, successful only because of the political ignorance of most New Zealand citizens, that has turned the New Zealand government into one of the world’s most powerful, in terms of what it is allowed to do to its people.

Former Labour Prime Minister Sir Geoffrey Palmer – the man in fact responsible for the 1986 Constitution Act – laments in his book Unbridled Power the dangers of concentrating so much power in the hands of so few:

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“A concentration of power in one group or one person always presents dangers,” he writes397, citing a passage from judicial icon William Blackstone in 1765:

“In all tyrannical governments, the supreme magistracy, all the right both of making and enforcing the laws is vested in one and the same man, or one and the same body of men; and wherever these two powers are united together, there can be no public liberty.”398

In light of Labour’s apparent control of the police force, there is room for cynicism here in NZ.

“In some other countries,” continues Palmer, “notably the United States, people tend to regard government as a necessary evil, which should use and be invested with powers to the most limited extent possible. New Zealand, almost since its beginning, has never followed that view. To New Zealanders, the government is a friend. It does things for them which they want done.

Governments in most countries look after things like law and order, taxation, the army, navy and air force. The New Zealand government does much more, as do countries which have developed a welfare state. With the demands which have been made upon government in New Zealand, it is hardly surprising that we are a highly regulated and much governed society. In recent years there has been a realisation that we went too far.399

“A British minister, Richard Crossman, once wrote: ‘the modern state, with its huge units of organization, is inherently totalitarian, and its natural tendency is towards despotism. These tendencies can only be held in check if we are determined to build constitutional safeguards of freedom and personal responsibility’.”400

Of course, in New Zealand the government wasted no time in scrapping some of those safeguards, once it had gained legislative independence. One of the first to go was New Zealand’s Upper House, a low-rent equivalent of Britain’s House of Lords. Most western democracies have a second chamber so that massive changes rammed through Parliament can be corrected or even vetoed if necessary. In the US, Congress must get its proposals past the Senate and past the Presidential veto as well. In Australia’s federal system, Parliament likewise reports to a Senate. It is not a perfect system, but it is better than having absolute power hinge on a one vote majority in Parliament.

“New Zealand passes too many laws and passes them too quickly,”401 acknowledges Palmer. “In 1977, B Manning, a respected American authority, wrote ‘hyperlexis is America’s national disease – the pathological condition

397 Unbridled Power, Geoffrey Palmer, Oxford University Press (second ed.) 1987, p5

398 Commentaries on the Laws of England, W Blackstone, reprint of 1st ed, London 1966,

vol 1 p 142

399 Palmer, supra, p7

400 Socialism and the New Despotism, R H Crossman, London 1956, p24

401 Palmer, supra, p139, citing Manning, B, ‘Hyperlexis: Our National Disease’, 1977, 71

Northwestern University Law Review 767

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caused by an overactive lawmaking gland’. But in no United States legislature, and there are 51 of them, is it so easy to pass statutes as in New Zealand. All but one of them have two houses; all have legal restrictions upon what they may pass laws about; and in none does strong party affiliation influence legislation to the extent it does in New Zealand.

“In all the countries mentioned the opportunities for holding up legislation are greater than in New Zealand as, with the exception of the State of Queensland and Nebraska, all have two houses in the legislatures. In all countries, the scrutiny is likely to last longer and be more searching than it is in New Zealand,” warns Palmer.

Parliament’s website actually reveals exactly how the New ZealandGovernment was granted independence, rather than the people, with this sequence of events402:

• In 1857 responsible government was consolidated and more than nominal independence from Britain achieved when the British Parliament passed the New Zealand Constitution Amendment Act. This gave the New Zealand Parliament authority to amend all but a few entrenched sections of the New Zealand Constitution Act 1852.

• Although the change in the designation of New Zealand – from the “Colony of New Zealand” to the “Dominion of New Zealand” – took effect on 26 September, 1907, complete autonomy in New Zealand’s foreign affairs was not obtained.

• The Governor-General continued to: be appointed by Britain; act as both representative of the British Government as well as the sole official representative of New Zealand views to the Imperial government; be the only person to hold the official coding ciphers; exercise sole discretion over which material and despatches were to be passed to the New Zealand government.

• New Zealand acquired the right to conduct its own international trade negotiations independently of Britain in 1923. It exercised this right for the first time in 1928, when it signed a trade treaty with Japan.

• Before the Statute of Westminster Act 1931 – and arguably until the New Zealand Parliament passed the Statute of Westminster Adoption Act in 1947 – the New Zealand Parliament was not a sovereign parliament, it did not have the capacity to make all law, (such as legislating extra-territorially), and there were some laws that it could not unmake.

• Full New Zealand sovereignty can be dated to 1947 – both in terms of gaining formal legal control over the conduct of its foreign policy and the attainment of constitutional and plenary powers by its legislature.

• In passing the Constitution Act 1986 (effective 1 January 1987), New Zealand “unilaterally revoked all residual United Kingdom legislative power.”

402 http://www.parliament.nz/en-NZ/PubRes/Research/Papers/9/1/8/00PLLawRP07041-New-Zealand-sovereignty-1857-1907-1947-or-1987.htm

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New Zealand, as of 1987, is a free-standing constitutional monarchy whose parliament has unlimited sovereign power.

King Charles I was the last British monarch to enjoy “unlimited sovereign power”, yet by some freak constitutional powerplay New Zealand’s politicians have managed to channel the ghost of Charles I, by giving themselves the same unlimited power the former monarch had.

Because of Helen Clark’s supreme position at the top of the political food chain, whilst in office she executes what the New Zealand Government’s own website acknowledges is “unlimited sovereign power”. Critics challenging the title of my book should be realizing the errors of their assumptions by now.

As you can see from the bullet points above, none of this happened in a vacuum. It happened incrementally, each a small step that did not alarm the natives (you and I). Had the NZ Government tried to do all of it at once the public would have recognized it as the declaration of independence it clearly was, with all of the legal implications. Instead, by making a small change here and a small change there, New Zealand’s unwritten constitution underwent death by a thousand cuts, and with it the rights of the people.

Nor am I a lone voice. In an analysis of the incredible powers another strong Prime Minister, Rob Muldoon, gave himself, Victoria University’s Deborah Shelton came to the view in 1980 that an “alarming” chasm was opening up between what governments were allowed to do in theory, and what they were actually doing in practice.403

“The conclusion that cannot be avoided is that the coherence of the constitution is breaking down. There are two possible responses to this collapse of coherence; either to allow the gap between theory and practice to widen even further, paying lip service to the theory when it is convenient, or, as has become more frequent, repudiating the theory because of the divergence in theory and practice.

“The other alternative is to formulate a constitutional theory and practice that reflects the expectations and understandings of New Zealand society and government and that attempts to control these new powers of the executive through the democratic process.”

But such misbehavior is a natural outcome of such a political coup.

To understand my point, look again at the revolution that tipped King Charles Stuart I out of power. The British parliament of the day, representing the wealthy landowners and barons whose tithes kept the King afloat, were getting sick of the King’s actions of absolute power against them. When push came to shove, the Parliament, essentially representing the wider British people, claimed sovereignty itself and executed the King – after a bitter civil war.

This was as close as you were going to get in late Middle Ages Britain to

403 “Government, the Economy and the Constitution” by Deborah Shelton, unpublished

LL.M. thesis, 1980, cited at Unbridled Power, p166

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a referendum. When Parliament later agreed to re-establish the monarchy under Charles II, it was on Parliament’s terms, not the new King’s.

So Britain’s parliamentary system has a clear public mandate, via revolution, from the British people. Where is the clear public mandate for a continuation of the colonial political system in New Zealand, manifested in the absolute power of the New Zealand parliament?

We might not have wanted our government to have “unlimited sovereign power”. Just because the British people gave their parliament tough powers doesn’t automatically mean the NZ people are subject to the same conditions.

Can anybody explain how it is that the British people (the authentic constitutional root of parliament’s power in the UK) can grant “independence” to New Zealand, but essentially dictate the terms by giving the New Zealand government even greater powers over its people than the British government has? In a real sense, the British parliament did not grant the New Zealand people “independence” at all, but merely set up a new monarchy in New Zealand (hence the need for niceties like the Royal Titles Act referred to earlier), with “unlimited sovereign power”, and none of the protections for citizens enjoyed by most modern democracies.

Helen Clark has jokingly been referred to as “Queen Helen”. In truth, she actually is. She has more power than Queen Elizabeth or George Bush have in their own countries – her powers cannot in fact be constrained by the NZ public short of a civil rebellion – unless she and her government voluntarily “assent” to be bound by a referendum. She is the power behind the façade throne of the New Zealand monarchy – Elizabeth II may be monarch in title, but the NZ Prime Minister is monarch in fact.

Twenty-nine years ago, Court of Appeal president Sir Owen Woodhouse made a similar kind of comment, openly comparing New Zealand prime ministers to “the Stuart Royal executive”: “Within a few decades there has been a major movement in the distribution of state power, in favour of the Executive and at the expense of Parliament… As a matter of historical interest, all this may be compared with the effective powers of the Stuart Royal executive…. the nebulous conventions presently relied upon in this country to protect the basic rights of individuals and control an abuse of power are outside the function of the judiciary and have no support other than goodwill and trust.”404

The scrapping of the Privy Council and the introduction of the Electoral Finance Act show that “goodwill and trust” are useless against a rogue Prime Minister.

When have the New Zealand people ever had a proper vote on what kind of political system they want? The politicians argue that by having elections every three years, they removed the need for an independent referendum on

404 “Government Under the Law”, Owen Woodhouse, the 1979 J. C. Beaglehole

Memorial Lecture, Council Brief (Nov. 79) p8

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the political system. But when you look at that claim more closely, you begin to see its weaknesses.

The election we have every three years is limited in scope. You can choose between Tweedle-dum and Tweedle-Dee, but you have no say in the rules that define how these people get elected. You have no ability, for example, to prevent the government from making sweeping constitutional changes without a public referendum. That’s because our “unwritten constitution” does not give you that power.

Yet, if a vote had taken place in 1986, when we finally became independent, it might have been a check and balance that voters supported as part of a new constitutional framework. Instead, Labour, NZ First, the Greens and United Future (Peter Dunne’s volte-face – choosing to vote against the Electoral Finance Act on its final reading – was a cynical stunt, in my view, allowing United Future to have appeared to listen to public anger, yet rest comfortably knowing the Bill would pass) have railroaded the rights of ordinary voters to speak out in election year.

In hindsight, these are the kinds of messes that independence and constitutional referendums are designed to clean up – they set the rules moving forward. In New Zealand, voters were never given that chance.

It is the abuse of this power that has led directly to the kind of governments New Zealand has suffered since the mid 1970s, and the political crisis our country now finds itself in. Queen Elizabeth is used as a kind of political glove-puppet by the New Zealand Government – dragged out here every so often to engender warm fuzzies among her loyal subjects who don’t realize how dangerously powerful Her Majesty’s Government has actually become.

Of course, like much of Investigate magazine’s work as a journalistic canary down the political mineshaft, many of our colleagues in the mainstream media simply looked blankly at us when we broke this constitutional crisis story in February 2000, only three months into Helen Clark’s reign. The media simply didn’t, or couldn’t, understand the significance of the story.

Internationally, it was different. WorldNetDaily – one of the top-ranked news sites in the world – gave it a front page lead on its website, causing a massive traffic spike on the Investigate site. The reason they paid attention was because the same Mickey Mouse constitutional process had been used for Australia and Canada – none of the big-3 former British colonies arguably had a valid government.

All three had been granted “independence” from Britain by what New Zealand constitutional lawyer Philip Joseph describes as “an ongoing gift”. We are the only three countries in the entire world to have utilized the process.

“Unlike all the other more newly emerged Commonwealth countries which have become sovereign,” argues Joseph, “these three old colonies acquired full powers of legal continuity through an ongoing gift of legal powers from Westminster to the countries concerned.”

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Except, of course, for one rather major sticking point: You can cut the ties strand by strand in a long slow process if you like, but the day you cut the final strand is still the day the Parliament in power ceases to be valid and the lights go out.

By definition, there can be no other outcome if you are being given true independence. To his credit, Philip Joseph admits that although his views are shared by mainstream constitutional lawyers in New Zealand, their views may be proven wrong at the end of the day. The reason for the long slow process, he told Investigate, was that it allowed Westminster to grant independence in a “gentle” fashion.

“It never properly tells us when we exactly became an independent sovereign nation,” Professor Joseph says, “and insofar as we trace our powers through this continuity line back to Westminster yes, it is a problem.”

Mark that admission on your calendar – Joseph is widely regarded as one of the top experts in the field.

Tony Angelo, a constitutional law expert at Wellington’s Victoria University, wondered whether the colonial government would have had the power to protect its own claim to sovereignty with some kind of transitional mechanism.

“If you wanted to argue the case, you’d say that on that date [of final independence], when the cut-off comes, that there has been an implicit affirmation or reaffirmation of certain rules as the laws of this ‘newly independent state’.”

Overseas constitutional writers don’t buy the argument. Australian Ian Henke, for example, told the magazine that John Howard’s government slipped a special question into its major referendum on whether Australia should become a republic in 1999.

There were only two questions in the referendum: the first asked whether Australia should become a republic. The second is slam-dunk proof that the Australian politicians were aware their parliamentary system is technically illegal. Specifically, that second question asked Australian voters to ratify a new preamble to the existing Australian constitution. The new preamble would have read: “We the Australian people commit ourselves to this Constitution”.

Those who have followed the past few pages will instantly see the significance of this. John Howard wanted voters to ratify and approve Australia’s existing (illegal) constitution, which would then have given legitimacy to the parliamentary system. The Australian government recognised (but did not and has not admitted so publicly) that “the ongoing gift” from Britain was illegal. There is no other reason for getting voters to agree that “we the…people commit ourselves” to the Constitution.

If some kind of magic “affirmation” of powers from Britain to the Australian federal government had been valid, the referendum question would have been unnecessary.

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However, because Australians did not like the form of the republic being offered to them – the President of Australia would have been “appointed” by Parliament’s existing politicians, not elected by the people – they voted “No” to both questions.

But doesn’t a government have the lawful authority, while it is becoming independent, to simply ignore its population and say, ‘We know what’s best because we’re the Government’?

It is certainly a line that has been used repeatedly by Prime Minister Helen Clark, who once famously declared that her government would never be dictated to by referenda; loosely translated, this means “we don’t give a hoot what the public say”.

Ian Henke rejects the “Government knows best” excuse.

“Of course not, because ‘lawful authority’ in independence, comes from the people. It is the only place lawful authority can come from.”

Canterbury University’s Philip Joseph agrees, saying the Government cannot claim a constitutional mandate simply because it was voted in during an election.

“That’s too mechanistic, in a sense. You’ve actually got to go back to the fundamentals: what gives them the right to be there to begin with, to actually put policies to the people?”

Although this interview with Joseph ran eight years ago, right at the start of the Helen Clark years, the scandal surrounding the passing of the Electoral Finance Act at Christmas 2007 illustrates the dangers of letting a rogue government go unchallenged on seemingly minor points. As the old saying goes, “give ‘em an inch and they’ll take a mile!”.

A constitutionally unlawful government, which has no mandate to make major constitutional changes, goes on to ban free speech for one year out of every three in the face of massive public opposition, giving New Zealand the most draconian gagging laws in the Western world and trying to embed a political system that makes it harder for voters to get rid of the existing politicians. The same constitutionally unlawful government also wants to create taxpayer funding of existing political parties, if it wins this year’s election.

Think how different New Zealand might be today if this issue of the Clark government’s legitimacy had been nipped in the bud way back in 2000?

During our 2000 interview with Philip Joseph, he acknowledged the extremely serious implications of our questions: that what we were challenging was not whether a particular law was constitutional or not (which has been ruled on many times in the past), but a much bigger challenge: if the entire legal and political system has not been lawfully constituted, no national court can possibly rule on it. It becomes an issue only the people can ratify.

“I take your point on what you are saying,” says Joseph, “and at this point you do step beyond the ‘safe’ parameters of constitutional analysis.

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“You are actually asking now: what are the bases of a people, of a state, of a constitution?”

As Investigate magazine reported in 2000, leading British constitutional law expert, Professor D P O’Connell, argues that transfers of sovereignty must be marked by a break in legal continuity. Which never happened in New Zealand or, for that matter, Australia, which had also enacted constitutional change with its 1986 Australia Acts, ending Britain’s ability to pass laws for Australia.

As if on cue, a year after our publication, Australian constitutional scholar Anthony Dillon presented an academic discussion paper405 for lawyers and judges, now posted on Australia’s federal court website. He, too, identifies a matter of hot debate across the Tasman – whether the Australia Acts of 1986 were a declaration of independence, and if so where sovereignty should lie – with the people or with Parliament?

“If one adopts the view that the Australia Acts created a void406 in constitutional authority, it might well be necessary to discern an ‘alternative’… local legal constitutional source.407 After all, it is recognised that our legal system (and arguably constitution) must have a legal fons et origo (source and origin). However, popular sovereignty [vested in the people] is only one possibility, it is not the ‘default setting’,” argues Dillon.

“Others include authority derived from a divine being, or from the State itself, or from indigenous-non-indigenous reconciliation…”408

There are some deeply troubling claims in there – particularly the idea that sovereignty can pass from one master to another, British parliament to NZ or Australian parliament, bypassing the people entirely. Should sovereignty ever vest in “the State”? George Orwell’s Big Brother was an example of State power gone rogue.

Dillon takes a closer look at the popular sovereignty argument in Australia:

“In spite of the Australia Acts’ limited mandate, many sponsors of popular sovereignty have cited their passage as the decisive and defining moment for the ascendancy of popular sovereignty and the acquisition of autochthony [pronounced or-tok-thonnee, it means “true independence”]. Mason CJ [chief justice Sir Anthony]] in ACTV was emphatic that ‘the Australia Act 1986 (UK) marked the end of the legal sovereignty of the Imperial Parliament and recognised that ultimate sovereignty resided in the Australian people’.409

“On one level it is difficult to dispute the first proposition of Mason CJ’s statement. However, does it necessarily follow that the beneficiary of this relinquishing of sovereign power is the Australian populace and not the

405 http://www.austlii.edu.au/au/journals/FedLRev/2001/10.html

406 http://www.austlii.edu.au/au/journals/FedLRev/2001/10.html#fn39

407 http://www.austlii.edu.au/au/journals/FedLRev/2001/10.html#fn40

408 http://www.austlii.edu.au/au/journals/FedLRev/2001/10.html#fn41

409 http://www.austlii.edu.au/au/journals/FedLRev/2001/10.html#fn52

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Australian parliaments? Where is it recognised that this redistribution of Westminster sovereignty should become the property of, and ‘embedded in’410 the Australian people?”

Noting that the Australia Acts make no reference to the people of Australia, Dillon tends to the view that the Australian Parliament had the power to assume sovereignty for itself, without asking the public first.

“….Daley has argued, ‘[t]o the extent that British parliamentary sovereignty impaired popular sovereignty before 1986, s 15 of the Australia Acts appears to have transferred that power not to the people, but to the Commonwealth parliament’.411”

This, naturally, is the default position we find ourselves in here in New Zealand. That the 1986 Constitution Act effectively declared independence from Britain, but that power was seized at that precise moment by the Lange Labour government, aided and abetted by the Bolger-led National opposition which did not truly understand the legal significance of what was taking place, and arguably would have supported the entrenching of political sovereignty anyway.

In both Canberra and Wellington in 1986, the two Labour parliaments were sailing into uncharted waters in the most audacious expedition of political piracy ever carried out in the British Commonwealth. For all of their banana republic appearance, the Fiji coups have nothing on this.

Describing the myth of “continuing sovereignty” as “suspect” and “divorced from reality”, Dillon adds, “As Marshall has noted: ‘[W]e are operating at the untested limits of the traditional doctrine’.412”

Now that’s an understatement!

“According to the strict view,” continues Dillon, “to achieve autochthony [true independence], nothing less than a contrived break in legal continuity will suffice.413 This is usually undertaken by adopting new constitutional arrangements in a manner unauthorised by the pre-existing constitution. When an offspring initiates such a break (no matter what view the traditional theory takes of the parent’s powers), such action may prove to be legally decisive. This is because the offspring has repudiated the very source of its autonomy. A revolutionary shift…occurs and the validity of the new constitutional order cannot be traced by a ‘stream of authority’ back to the parent.”

All of which reinforces the points made by Investigate’s article eight years go. A constitutional change is an earthquake, not a rubber stamp by a bureaucrat and a prime minister.

Dillon adds weight to the belief that New Zealand became independent as recently as 1986.

410 http://www.austlii.edu.au/au/journals/FedLRev/2001/10.html#fn53

411 http://www.austlii.edu.au/au/journals/FedLRev/2001/10.html#fn67

412 http://www.austlii.edu.au/au/journals/FedLRev/2001/10.html#fn91

413 http://www.austlii.edu.au/au/journals/FedLRev/2001/10.html#fn114

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“So too, some New Zealand commentators (but especially F M Brookfield) have been able to discern a discontinuity by ‘disguised revolution’ in New Zealand’s 1986 independence arrangements.”

So there appears little doubt that New Zealand became independent in a “disguised revolution” only 22 years ago, but with no referendum. No one asked the public’s permission. In sharp contrast, Anthony Dillon argues there needs to be a future referendum in Australia to clean up that country’s constitutional shambles.

“If Australians were of a mind to institute a ‘technical’ break in legal continuity, the following course might be undertaken. James Thomson cites Geoffrey Sawer as suggesting:414 ‘Perhaps the best way of dealing with this is to put to the people as a constitutional amendment a declaratory provision stating that the sovereignty of the United Kingdom Parliament ends on a named future date and is replaced by that of the Australian people.’

“This sort of proposal has a great deal to commend it. Had such a proposal been put to the people and accepted to take effect from 3 March 1986, the constitutional arrangements of Australia (in respect of grundnorm and autochthony issues) might no longer be in such hot academic debate. In the end, however, the Australia Acts alone could only achieve so much. By section 1 [of the Australia Acts] the sovereignty of the United Kingdom Parliament was brought to an end, thereby fulfilling the first proposition of Professor Sawer’s proposal … Moreover, the failure to invest legal sovereignty democratically in the Australian people makes contestable the identity of the true beneficiary of the power formerly exercised by the United Kingdom Parliament.”

I want to interrupt here. Note that last comment well – Britain’s failure to expressly vest sovereignty in the people is what allowed the New Zealand and Australian Parliaments to seize it. Dillon, however, still has hope of a democratic solution:

“However, this does not mean that Australia cannot adopt such a course even today. A plebiscite (then referendum) question could include a declaratory provision similar to that suggested by Professor Sawer, along with a Constitution Alteration Bill for Australia to become a republic. The declaratory provision should assert that ‘all the prerogatives of the Crown and the sovereignty of the Queen are transferred to the people’.415”

In other words, Dillon recognises that only a popular vote can ratify what has been done.

Hopefully, if you were labouring under any false illusions that New Zealand’s constitutional crisis was an Investigate “beat-up” (as the Prime Minister is fond of calling our stories in the hope of throwing the public off the scent), the testimony from leading constitutional experts on both sides of the Tasman has put paid to any doubts. If you take nothing else away from

414 http://www.austlii.edu.au/au/journals/FedLRev/2001/10.html#fn132

415 http://www.austlii.edu.au/au/journals/FedLRev/2001/10.html#fn133

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this book, at least go away with the realisation that the absolute power of the Helen Clark years was exercised illegally, and both Clark and Attorney-General Margaret Wilson knew as early as mid-2000 the full extent of their problem.

Every rogue law enacted by the Clark government against the wishes of the public over the past nine years is a further case of the Prime Minister rubbing voters’ noses in her power.

In early 2001, Investigate published its final major story on New Zealand’s constitutional crisis, because we’d reached the limits of trying to get a sensible response out of the government:

Unlike other news media, who have reported frequently on the willingness of the Prime Minister to be interviewed at literally a moment’s notice, Investigate was asked to submit all questions in writing to the PM’s Chief Press Secretary, Mike Munro. The magazine refused to do so, but did provide the generalised questions listed above [the same arguments you’ve just read] in a fax to another of the Prime Minister’s media advisors, David Lewis, who also asked for printouts of all the articles that Investigate has published on the issue. Two days after receiving that information, Lewis advised that “the Prime Minister will not be making any comment on New Zealand’s constitutional position, so there will not be an interview.”

If the Government has evidence that it is constitutionally lawful, it apparently is not able to share that evidence with the public.

The Prime Minister and Attorney-General did not opt to clarify the country’s constitutional problem. If Investigate’s research had been demonstrably wrong, don’t you think they would have done so? The evasiveness did not sit well with former Governor-General Sir Paul Reeves either, who after reviewing the points made by the magazine, said it was time for the Government to come clean.

Former Governor-General Sir Paul Reeves says it’s time for the Government to come clean on New Zealand’s constitutional position, following a refusal by the Prime Minister to deny that her Government may be illegal. The question of whether New Zealand has an unconstitutional Government, unable to enforce laws or collect taxes, has taken an intriguing new turn with the Prime Minister’s reluctance to clarify the issue, and it is a debate that is giving the former Governor-General cause for concern.

“Ultimately any Government needs to have the assurance that it has a mandate from the people to do whatever it is doing,” Sir Paul Reeves told Investigate. “I’m not in a position to say whether New Zealand is legitimate or illegitimate, but what I am wanting to say though is New Zealand bloody-well ought to be legitimate, if we ain’t!”

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In a move reminiscent of equestrian Mark Todd’s handling of the drug scandal, the New Zealand Government has taken a similar “neither confirm nor deny” stance on questions of its own lawfulness…

The allegation against the Government is relatively simple to understand: it is legally impossible for sovereignty to pass from the King or Queen of England to the New Zealand Government: the Government is not the Queen’s “subjects”, the people are, and only subjects could be given independence.

Yet the New Zealand Parliament, in the 1986 Constitution Act, now claims to hold absolute sovereignty over all New Zealanders.

“You end up with the Government saying ‘We are the Crown’,” says Sir Paul Reeves, “and that’s a very interesting development, I think…how did that happen?”

In a report that even the Listener admits could equally refer to the New Zealand situation, British constitutional expert Jonathan Freedland writes:

“The British system is the very opposite of the Americans’: power flows from the top down, not the bottom up. The Government is in charge, and the people are its servant.

“A Prime Minister can act like a king because (s)he has inherited a king’s powers. This is not rhetoric but constitutional fact: the bulk of the royal prerogative has been handed from the palace to Downing Street. The result is a British premier who enjoys powers that scholars freely describe as absolutist, with only the most meagre restraint.

“But what makes the executive’s power truly extraordinary is that it appoints the judiciary and, armed with a parliamentary majority, controls the legislature – giving it the power to write the very law of the land”.