NZ’s dirtiest political secret: the bloodless coup of 1986

FOR QUEEN OR COUNTRY?                          INVESTIGATE: APRIL 00

June 2017: Seventeen  years ago a little-known conference of constitutional experts revealed New Zealand’s dirtiest political secret: that in 1986 the NZ Parliament seized control of the country in a bloodless coup, declaring themselves sovereign above the people in a technical but highly significant move. Nearly two decades later, the position has never been rectified…

APRIL 2000: New Zealanders have fewer Constitutional rights than the citizens of Mongolia: that’s the disturbing revelation as delegates gather for a major Constitutional conference in Wellington this month. They’ll be debating whether we need a written Constitution, and whether New Zealand needs to become a Republic but, as IAN WISHART reports, it’s throwing up some embarassing information about our current Parliamentary system:

 

New Zealanders may be asked to vote for the kind of republic that Australian voters gave a resounding “no” to last November. The referendum in Australia failed largely because of one clause: the system of republic drafted by the politicians meant politicians – and not the public – would choose who became President, and voters didn’t trust the politicians.

Now the same scheme is being mooted as a possibility for New Zealand in a conference paper for this month’s Building the Constitution Conference in Wellington. Even more controversially, another option is that the future President of New Zealand could be chosen by the Prime Minister, in a similar fashion to the way the Governor-General is currently appointed.

The options are included in a paper prepared by Victoria University constitutional lawyer Dr Andrew Ladley, which is highlighted on the conference website.

“How might the head of state be selected (by direct election, through an electoral college, by a two thirds or three-quarters majority of Parliament or by the Prime Minister?) and the implications of each method.

“What might be done with the reserve powers and what are the implications? What else must be changed if the head of state is changed?”

The highlights note that “this is an exploratory paper rather than one of advocacy but would set up the basis for what is likely to be a vigorous and impassioned debate.”

In a conference session chaired by former Prime Minister Sir Geoffrey Palmer, delegates and members of the public who turn up will be asked “Who should be head of state?”

“This session will address the specific issue of whether to move to a republic, how that should be done and in what timeframe, with reference to the Australian experience.”

The conference opens in Wellington’s Parliament Buildings on Friday April 7, and a briefing for the news media spells out its agenda:

“A national debate has begun on our constitution. There are many impulses for this debate. We are very far from Anzac Cove and the Empire of 1915, a long march from the farm for Britain of the 1960s, quite some distance even from the sheltered society of the early 1980s. We are in transition and it is timely to debate where we are headed.

“The Treaty of Waitangi, our founding document, has become part of everyday life. It excites great hopes, great fears, great joys and great angers. It is the pre-eminent instrument of accommodation between the descendants of the original owners and the descendants of the colonisers. It is also the instrument by which some seek to divide us. It is timely to debate the role of the treaty in the life of our nation.

“The shapes and roles of our political institutions are in flux and under question. We have changed our electoral system and are changing our political culture. We must decide whether – or when – to replace the Queen with our own head of state.

“We must rearrange the distribution of power. Some argue it is time to write our constitution into a single legal document.”

The conference is the brainchild of the Institute of Policy Studies at Victoria University, and its organisers include former Governors-General Sir Paul Reeves and Dame Catherine Tizard, Geoffrey Palmer, Maori academic Professor Mason Durie and businessman Hugh Fletcher.

Regardless of whether you agree with everything on the agenda or not, there’s little disagreement on the need for a thorough re-examination of where the country is heading constitutionally. Although the mainstream daily media has paid little attention up until now, the issue is undergoing some serious discussion in legal and academic circles.

Former Appeal Court President Lord Cooke, in a contribution to the book Essays on the Constitution edited by Philip Joseph, argues that up until as recently as 1986, New Zealand may not have been an independent country, but merely a British colony still capable of being controlled from London.

“In Britain’s colonies and later in her Dominions, the Legislatures derived their powers from Acts of the Westminster Parliament…they were not in the eyes of the common law truly sovereign Parliaments.”

In a pronouncement that reinforces the claims of Australia’s Institute of Taxation Research about the illegality of the Australian Government, Lord Cooke – now on the Privy Council – notes that the same analysis “no doubt continues logically to apply to those fully self-governing and independent members of the Commonwealth, such as Australia, whose Constitutions are contained in Acts of the United Kingdom Parliament.”

Lord Cooke then turns to the debate over whether the citizens hold sovereignty over the Government or vice versa. The latter is the situation in Britain and what was allegedly handed down to New Zealand.

“A number of republics within the Commonwealth, such as India, Pakistan, Sri Lanka and South Africa, have constitutions proclaimed or conceived to be derived directly from the authority of the people…No doubt techniques are available, indeed more readily in New Zealand than in federations such as Australia and Canada, whereby New Zealand could take for herself a somewhat similar republican status.”

Interestingly, despite claims from some New Zealand lawyers that our independence from Britain did not require any break in legal continuity requiring public affirmation, Cooke appears to recognise that such changes do require express ratification.

“Subject to local adaptation and development, it seems likely that the common law of England would still be seen as the lineal ancestor of our private law.”

But even more significantly, Cooke believes the  1986 Constitution Act was, in legal reality, New Zealand’s “Declaration of Independence”. In other words if independence didn’t come during the moment we joined the League of Nations in 1920, then it was definitely 1986.

Why? Because the 1986 Act is what Cooke describes as “legal fiction” – a polite way of saying that the Act claims to do one thing but actually achieves another. Specifically, it claims a role for the Queen that she did not previously have. Now this may sound like a minor technicality but when you are dealing with something as fundamental as a Constitution and someone like the Queen, technicalities take on a whole new significance.

“Then s 15(1) states that the Parliament of New Zealand ‘continues to have full power to make laws’ – without, however, specifying any source of that power,” says Cooke. It is almost as if the Parliament of New Zealand declared itself the supreme being, acting through the Queen of New Zealand.

“If the issue were purely a legal one,” continues Cooke, “there would be much to be said for the solution that…the 1986 Act has, deliberately, cut off from United Kingdom roots for the future; and that the head of State that is and the Parliament that is, according to the language of the 1986 Act, have a paramount existence which the ‘full power to make laws’ cannot legally touch.”

Cooke says he was staggered that such a major legislative move as the New Zealand Parliament chucking out the old Constitution and replacing it with a new one overnight could be achieved without so much as a public wimper.

With the old, British-based Constitution out the door, and the New Zealand Government declaring itself lord and master of all it surveyed, it is perhaps little wonder that the Labour Government in the eighties was then free to begin selling state-owned assets without fear of any constitutional interference from citizens petitioning Buckingham Palace to intervene.

The question that is not answered by Cooke, or other jurists, is whether the New Zealand Parliament had any legitimate authority to alter the Constitution without seeking a public mandate by way of referendum, and again this raises the question of whether New Zealanders are truly free, or whether we are second class citizens with fewer rights than American citizens.

It also raises the question, again, of whether the current Government is illegal, by virtue of the fact that an unlawfully constituted government cannot simply legislate itself into lawful existence.

Constitutional expert Peter Oliver talks of the 1986 Act as a “disguised revolution…which passed unnoticed. On this view the New Zealand Constitution can only be self-seeded, and the powers of the New Zealand Parliament self-proclaimed”.

Up until 1986, for argument’s sake, New Zealand was still a British colony, owing full allegiance to the British Crown. But in 1986 there was a sovereignty transfer. It should have gone to the people, but in a curious overnight law change, the New Zealand Parliament, comprising both Labour and National, declared itself sovereign.

In other words, while we were sleeping, there was a revolution and New Zealand politicians crowned themselves King, effectively providing themselves with unlimited and unchallengeable powers to regulate the lives of the voters.

Do ordinary New Zealanders now have to swear fealty to Parliament? If you examine the 1986 Constitution Act the answer appears to be yes, and Parliament still has powers to imprison any New Zealander for “contempt of Parliament”.

Cynics have already noted that the death penalty for treason was subsequently dropped. Is it possible that the bureaucrats and politicians of the New Zealand Government set out to deliberately steal sovereignty from the public? The jury is still out on that one.

Another of New Zealand’s top constitutional experts, Auckland University’s Emeritus Professor of Law, F M Brookfield, also wades into the issue in Essays on the Constitution.

He discusses “the present day powers of the New Zealand Parliament; powers which it claims over both the Treaty of Waitangi and over the individual rights and freedoms of the citizen.

“Our Parliament,” he stresses, “claims an absolute sovereignty over us, Maori and Pakeha alike, unlimited by any written Constitution.”

Should warning bells be ringing in the ears of New Zealand voters? Groups like Australia’s ITR or New Zealand Rights Litigators say “yes”: whereas in the past there was a traditional reason to swear allegiance to a British Queen, it is much harder to find good reasons for three and a half million New Zealanders to doff their caps and tug their forelocks to a group of politicians in Wellington and the bureaucracy that supports them.

The tail, they argue, is wagging the dog. Brookfield talks of “an embarrassing aura of illegality over the origins of the present constitutional order”, but makes the point that judicial oaths of allegiance prevent judges from examining the bigger picture unless Parliament gives them permission through legislation.

In other words, just as we reported in February, if you’re waiting for the New Zealand Courts to save the public from the unlawful activities of the New Zealand Government, you can forget it.

“The Courts have long accepted a general duty of obedience to Parliament,” writes Brookfield.

But there is growing evidence that the Government is asking for a fight of major proportions with its citizens if the situation doesn’t change in the near future.

Commentators like Jane Kelsey have already warned of a real revolution, and the fact that 800,000 New Zealanders have so far failed to comply with the new driving licence laws is indicative of the most serious civil disobedience seen in this country in the last two decades.

Why? Because the licence imposes restrictions on the common law rights of citizens to freely use the roads unhindered by Government interference. Added to that already volatile mix has been the attitude of some police officers.

In one case highlighted by Newstalk ZB’s Leighton Smith, a young mother driving her child to kindergarten was randomly stopped for a licence check. When the officer discovered she was still using her paper lifetime licence, he forbade her from driving and warned that if she attempted to drive the car he would arrest her and have her children taken from her by Social Welfare.

In another, a caller to Investigate who’d chosen not to get the new ID card reported being randomly stopped “because my car was dirty”. He’d committed no offence, and his number plate was not obscured, but the officer was suspicious because of the dirty appearance of the vehicle. The caller was issued with a Traffic Offence Notice forbidding him from driving, but surprisingly the notice contained no information regarding rights of appeal, protest or even whether he was entitled to a court hearing. On a constitutional level, this motorist had been judged guilty at the side of the road by a police officer, with no right of appeal against a notice forbidding him from driving. It is difficult to remember that only 15 years ago it was illegal for the police to randomly stop anyone.

And fifteen years ago, the idea that somebody could be randomly stopped in their car, judged guilty on the spot for a crime against the State, and wind up losing their children to the State would have been ridiculed by commentators as something out of Orwell’s 1984.

While the new licences were allegedly introduced to get drunk and disqualified hoons off the road, they are being used for a very different purpose by the authorities, and alienating ordinary New Zealanders in the process.

Constitutionally, the Government is skating on thin ice. In one court case in the eighties, the Appeal Court noted that there may be some common law rights that lie so deep that Parliament – regardless of all its powers – cannot override them. There are judicial “twitchings” that indicate that legal experts are becoming concerned about the balance of power.

“I am conscious of our constitutional vulnerability,” Brookfield writes, “and of the great strength of the traditional doctrine of unlimited parliamentary sovereignty. Just as the Treaty rights should not be at the mercy of Parliament, neither should our individual rights and freedoms arguably be at its mercy.

“The constitutional settlement that we need will entail a written Constitution…I think that the need to find a constitutional solution to the Treaty and the inevitable moves toward a republic, will push us towards a wider consideration of the kind of Constitution the country should have; and I doubt whether it will simply be a continuation of the present one, with its overpowerful Parliament dominated by what is, as a result, an overpowerful executive.

“My millennial hope in any case is for a written Constitution…in which the courts will have the power of judicial review to strike down unconstitutional legislation,” concludes Professor Brookfield.

With Prime Minister Clark clearly putting the republican issue on the agenda in her Waitangi Day comments, Lord Cooke’s other observations take on a new significance as well.

Given that the New Zealand Parliament effectively assumed sovereignty in its own right in 1986 merely by a late night law change supported by both main parties, Cooke asks whether a similar process could be used to abolish the monarchy and install a President.

“If the issue were purely a legal one,” he writes, “any argument that the monarchy can legally be abolished for New Zealand would evidently be forced to go to the length of asserting that this could be done overnight by a Bill passed without notice by a bare majority of the House of Representatives and assented to by the Governor-General.”

Nonetheless, Cooke says the argument is more than legal, and whether the courts would support such radical declarations by Parliament remains to be seen. Given that the Courts didn’t say “boo” to the 1986 Constitution Act, the jury is still out on that one as well.

The Magna Carta of 1215 imposed major limits on the power of the King, and placed the rights of the people above the rights of the Crown in    some cases. Similarly, Scotland’s Declaration of Arbroath in 1320 also spelt out that the King of Scotland had a divine right to rule, but only as long as he upheld the wishes of his people.

The British Civil War in the 1600s and the turbulence that followed further limited the powers of the monarch, but somewhere between then and 1900, the Westminster Parliamentary system took on divine rights of its own, using the monarch as a convenient figurehead but seeing itself as sovereign and the voters as “subjects”.

The contrast between the Westminster system used in New Zealand, Australia and Canada, and the Constitutions used in the rest of the world have become even more marked in recent years: even the Czech Republic’s Constitution draws its powers directly from the people, not from the mystical divine rights of Parliament that Dicey promoted heavily.

It is ironic that the former workers of communist Czechoslovakia are now freer, in a constitutional sense, than New Zealanders or Australians.

Compare New Zealand’s 1986 Constitution Act with its emphasis on the full powers of Parliament and no mention of the rights of citizens, with the US Declaration of Independence:

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness.

“That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed [our emphasis]. That whenever any form of government becomes destructive to these ends, it is the right of the people to alter or to abolish it, and to institute new government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness.

“Prudence, indeed, will dictate that governments long established should not be changed for light and transient causes; and accordingly all experience hath shown that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same object evinces a design to reduce them under absolute despotism, it is their right, it is their duty, to throw off such government, and to provide new guards for their future security.

“Such has been the patient sufferance of these colonies; and such is now the necessity which constrains them to alter their former systems of government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute tyranny over these states. To prove this, let facts be submitted to a candid world.”

But the American revolutionary spirit is being fomented in New Zealand as well, with a series of international conferences aimed not at the elite    but at ordinary New Zealanders, which are pushing the message of individual rights and sovereignty. These conferences, which are held offshore (often in or close to tax havens) are organised by American constitutionalists, and so far an estimated 10,000 New Zealanders have paid thousands of dollars each to hear how to make themselves largely untouchable by governments.

As Investigate reported in February, there’s nothing particularly new about those methods: they include using offshore trusts and tax haven companies to purchase your assets, so that when the Government or the IRD come calling, you have nothing left to give them. The philosophy being: it’s much easier to challenge the Government’s powers when you know it won’t cost you your home.

Although such services have been available to New Zealand corporates and wealthy individuals since the financial markets were deregulated in the 1980s, and advertisements for such offshore trusts can be found in any edition of The Economist magazine, it is the first time they’ve been promoted to ordinary New Zealanders.

The constitutional danger for the Government is clear: at the stage where grass-roots, middle and even so called working class people are using offshore trusts to remove their assets from reach, it’s pretty clear that people are losing faith in the system. It takes a lot to motivate people to spend up to $15,000 to attend one of the offshore seminars, and pay a further $1,500 to $5,000 for an international trust or tax haven company of their own – especially when the money to attend the seminar has been borrowed from the bank.

Even more dangerous for the Government, news that the common herd may be able to escape the clutches of the IRD or other government agencies is percolating rapidly through New Zealand, and challenging the accepted rules of the game. Sooner or later, something is likely to give.

New Zealand’s move to a republic need not require all links to the British Crown to be broken: constitutional researchers say it is possible to draft a constitution that provides for a continued role for the royal family, whilst acknowledging that full sovereignty is now held by the New Zealand people in a constitutional sense.

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