With due deference, the DUE AUTHORITY flag conspiracy theory is rubbish

If you are a New Zealander, and you have access to either Twitter or Facebook, then you will doubtless be aware that there is a particular conspiracy theory going around about our flag referendum which suggests changing the flag is a much bigger deal than John Key and friends are letting on. You might, for example, have seen this image doing the rounds:

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One of the more fulsome accounts of this conspiracy theory can be found at Ben Vigden’s site here. It starts thusly:

The nature of heraldry dates back to feudal times when the flags where not just things you waved but a coat of arms stated to whom you pledged allegiance to. It showed what your rank was, entrenched your legal status from what power or Due authority your knight exercised his rights and privileges, the Crown or the State. One of the frustrating things about the change being made to the NZ flag is that no one has considered that change of heraldry and how it impacts on the very notion of DUE AUTHORITY.

Notice the all-caps. There is a lot of Freeman on the land to this thesis, which is to say it relies on some fairly weird pseudo-legalistic framework in order to work.

The nuts of the theory really is this:

A change of flag means not only that we have taken a major step to removing the DUE AUTHORITY of the crown. It also means we take away the very power which enforces both the 1990 Bill of Rights Act (the closest thing NZ has to an entrenched Constitution) and the founding plank upon which the Treaty of Waitangi has meaning. It does not matter if your pro or anti monarchy but if you take away the DUE AUTHORITY of law (which includes our flag) you then open the gates of hell or to be precise the means in which John Key can legally sign the TPPA (Trans Pacific Partnership Agreement), Currently if the matter was taken to court it would undoubtedly end up at the Supreme Court.

Herein lies the issue: apparently changing the flag is a constitutional issue such that by removing the symbol of the British Crown from the flag of our nation state, we take away due authority of the Crown we pay allegiance to. Let’s unpack this.

  1. The DUE AUTHORITY conspiracy theory conflates and confuses the idea of the British Crown and the notion of the Crown itself.

    The authority of the Parliament in Aotearoa/New Zealand comes from it being sovereign. An interesting quirk of tradition has it that our laws need the assent of the representative of the British Crown (which in our case is the Governor General). The role of the Governor General is something many New Zealanders are eternally confused about. Almost every time a law is passed that sections of the public think is “the worse thing ever!” someone will assert “Well, the Governor General doesn’t need to assent to it.” The idea is that as laws need the assent of the Crown (here symbolised as the Queen’s representative, the Governor General), the Governor General can essentially veto laws by refusing to sign off on them.

    Except the Governor General can do no such thing. The New Zealand Parliament is sovereign, and the assent of the Governor General is automatic. In this respect, the Crown is Parliament. Historically it got its power through the British Crown, but the British Crown is now but a figurehead, constitutionally. As it stands, when we refer to the “Crown” in New Zealand law, we are not referring to the British Crown. Rather, we are referring to Parliament. Which is to say that removing the symbol of the British Crown (presumably the corner we call the “Union Jack”) from our flag really means nothing whatsoever. Changing the flag would not suddenly make Parliament any more or less sovereign than it currently is.

  2. The DUE AUTHORITY conspiracy theory takes it that changing the flag changes our constitutional conventions.

    Given that Parliament is sovereign, if Parliament changes the flag, then nothing really changes (other than getting a new, and possibly not much better flag). The authority of the state has not come from the monarch of Great Britain for quite some time. As such, a change in flag will not make it easier for the government to sign the TPPA. That is because – at the moment – all Cabinet need do is agree to the text of the TPPA, and sign it for it to come into effect. For sure, Parliament will then need to pass laws which take our new international agreements into consideration, but even if we keep the current flag, the British Crown (via the Governor General) will not be stepping in to say “No!”1

Let it not be said that I am unsympathetic to worries about how the TPPA is likely to be signed; I oppose the current leaked text of the TPPA (Like Prof. Jane Kelsey, I’m not entirely against free trade agreements in principle, but I am against this one in particular). I am even suspicious about the current flag referendum (after all, isn’t it convenient that a well-paid panel chose three preferred-by-the-PM – the same PM that initiated the referendum – fern designs?). However, I just don’t see there being some sinister conspiracy by the PM and his cronies to make it easier to sign the TPPA; it’s easy enough for them to sign it as it stands without the hassle of changing flags.2 Our constitutional convention currently has it that Cabinet can sign such agreements without even having to debate them in Parliament. It’s also not the case that the Governor General could refuse assent to any legislation which enables the TPPA. As such, that little slice of the British Crown in our current flag means nothing other than a constant reminder that we are a colonised country.

And that might be reason enough to think changing the flag is a good idea. Not because being reminded that this place is colonised is a bad thing – we should spend more time thinking about colonisation and its effects – but because a new flag might well be a remedy to the salt-in-the-wounds many Māori feel when looking at that symbol of colonisation. But that’s a separate issue from the TPPA. That’s the thing; just because we’re suspicious about the TPPA and the process around the flag referendum, that does not tell us that they are in any way linked. Indeed, understanding our constitutional conventions really shows that they aren’t.

Notes

  1. Indeed, I can imagine the British Crown just shrugging her shoulders and saying “Whatev, peeps. Liz don’t worry ’bout that kind of thing. Peace out!”
  2. Indeed, if this is a sinister conspiracy, it’s potentially a really risky one. What if people vote to keep the flag? Then what happens? Do our plucky set of conspirators then assassinate the Governor General in order to keep him from refusing assent? Do they end up introducing fluoride into the Buckingham Palace water supply in order to make the Queen docile? It seems really very risky.

14 thoughts on “With due deference, the DUE AUTHORITY flag conspiracy theory is rubbish

  1. Yeah, nah. Technically, you are correct on the nature of the Crown but the Head of State is the Queen of New Zealand, who just happens to also be the Queen of the United Kingdom. You’re right in that due authority in NZ has bugger all to do with the British Crown, but wrong to say that laws need the assent of the British Crown “by some quirk”. They do need the assent of the New Zealand Crown, as personified by the Governor General. And, while assent has never been withheld (and would cause great constitutional ructions if it were – equivalent to a coup d’etat), it technically could be. Roger Kerr showed that a GG is not a complete rubber stamp, as Gough Witlam would testify, if he wasn’t dead.

    • Ah, but as we are sovereign the Queen can’t interfere with our laws. Not just that, but the Governor General is appointed by the New Zealand Government, and should a Governor General refuse assent their post would be vacated and a new Governor General would be appointed. There’s just no situation in which a refusal to assent would be taken seriously. So, technically, yes, a Governor General could refuse assent, but it would merely prove a slight delay, rather than be a long-lasting effect.

  2. I don’t understand what the TPPA is. Nor do I understand the assent of the governor general. But what I do understand is the amount of money that dick wants to spend changing the flag. Thats amount, $27,000,000 would be better spent on education housing and medicinal resources. Certainly not in a flag design!

  3. There is however the case where a Members bill might have been passed against the wishes of a minority government: can the government advise (as in require) the G-G to veto it?

    Nick Barber sez no. Rodney Brazier sez yes. (In the UK context)
    http://ukconstitutionallaw.org/2013/09/25/nick-barber-can-royal-assent-be-refused-on-the-advice-of-the-prime-minster/

    You might also be interested in:
    http://ukconstitutionallaw.org/2011/07/22/andrew-le-sueur-crazy-constitutionalism/

  4. If what you say is true then this would make us a republic not a sovereignty and as we have no codified constitution we can not be a constitutional sovereignty. The powers of the Governor General would have no weight, however these powers were used to sack a government in the recent past and any act of parliament must be signed off by the Governor General this is not the case in Australia who have done away with that office. If this was the case in New Zealand Iwi would have the right to sue the English Monarchy for being in breach of the Waitangi Treaty signed on the Crowns behalf by the then Governor General. I do know that as the years have passed that politicians have created a sense of entitlement similar to the old feudal barons of England but with a corporate flavour and this sense of entitlement has at times put our economy in danger until the actual people have gotten sick of them and voted for change. Mainly this is why the governing bodies of New Zealand fail to legitimise the Treaty of Waitangi and the Northern Iwi declaration of independence because it would open the doors to Iwi sovereignty.

    • We do have a constitution; the Constitution Act of 1986, for example, details some of the processes of governance, et cetera. You are confusing us not having a written constitution (ala the U.S.) with not having a constitution at all. Our constitutional arrangement is a constitution by convention; the constitution consists of the various laws enacted by Parliament, and is thus described by them.

      So, no, we are not (yet) a republic. At the moment our laws refer to our Head of State as being the Queen’s Representative (although our laws also don’t grant said representative – the Governor General – any actual powers; the representative cannot veto laws, et cetera).

      • In my opinion he has the power to legitimize laws and to act on behalf of the Crown in state affairs and he has the power to sack the Cabinet if called upon to do so. A Constitution is a document approved by the populace which cannot be changed by any governing body. The constitution act is an act of law and can be repealed.

        • But you opinion carries no legal weight; the Governor General can do no such thing under our constitutional arrangement. Parliament is sovereign, not the Queen or her representative.

          As for the ability to change or modify our constitutional arrangements; that is usually taken to be a good thing. France regularly updates its constitution, whilst America (which has systems in place to rewrite its constitution) doesn’t. The idea that we should settle for a written document which is somehow inviolate seems like an odd choice, particularly given the pace of societal change.

  5. Thankyou for 2 reasons. – 1) easily read and understood article with a logical progression of understanding – 2) thought out respectful replies and responses from both author and readers based on individuals understandings and rebuttels without a whole heap or disrespectful diatiribe ranblings thrown in for good measure.

    AWESOME debate thanks.

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