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.

Moments of Truth with Kim Dotcom

So, Kim Dotcom has had his Moment of Truth and now everyone is waiting to see how it plays out. I’m still consolidating my views about the revelations (and waiting on some evidence; appeals to authority, no matter how well-respected, only get you so far) but I have opinions (beliefs, almost) about the timing.

Conjecture 1: The John Key email is not what it seems.

Dotcom’s Moment of Truth really was a moment of truths, given that it was not just a gotcha of the kind “The PM lied about having prior knowledge of Dotcom” but also the revelaiton “The PM lied about mass surveillance” (or, if you are the kind of person who thinks the PM is both uninterested in oversight of our intelligence gathering operations and also a bit of a dunderhead about his constitutional responsibilities, trusts that an unguarded GCSB would, in the face of all evidence, do nothing illegal). It seems, then, just a little odd Dotcom would choose to make this revelation just five days out from a general election, given that National voters are likely to wait to see the Government’s response (which, it will argue, will take time, given that there are documents to check, clearances to get, et cetera et cetera; given it’s the last week of the election, the government won’t be in a position to respond properly until, say, next Monday). Surely, centre-right voters who might be swayed by such a relation will argue that this should have come out months ago.

So, why now? Well, maybe the email about John Key knowing full well who Dotcom was prior to the raids on the Christco Mansion is a forgery, or Dotcom suspects it’s authenticity and thus knows that, given time, the gut reaction of the public will dissipate as National and John Key argue it’s all just a setup. At least part of the Moment of Truth was a one hit wonder with a short shelf life (ah, the mundane beauty of a mixed metaphor), so if Dotcom’s revelations are to have any impact, then they needs to be released at a time where the government at least looks like it’s scrambling for a response.

Conjecture 2: The email is genuine but Dotcom has kept it secret until now to maximise the vote.

Maybe the email about the PM is genuine and Dotcom is using it to energise the undecideds and non-voting (but potential) voters. This conjecture relates to the first: perhaps Dotcom, as someone who is remarkably good at PR, realises that if John Key and the National Party got too much time to talk about what they have been up to, some people might start to wonder (wrongly) what the fuss is about and thus go back to being an undecided or non-voter. So, Dotcom might have held on to information he is certain about precisely because this is the point in time which maximises his interests (getting the Internet Party into Parliament) rather than serving the public interest (revealing wrong-doing).

Conjecture 3: Something something vested interests

It’s possible Dotcom is being played by some other force and dancing to another’s tune. However, this seems just a tad unlikely and it’s certainly not the preferred narrative of Messrs. Key and Slater, who seem to think we can put all the country’s ills on one permanent resident.


I’ve not written much about the Edward Snowden and Glen Greenwald revelations (which will be the substance of this week’s Podcaster’s Guide to the Conspiracy) because although some of the same issues about timing are the same, Snowden and Greenwald have a reputation for sincerity that Dotcom does not. Dotcom is a right-leaning, libertarian-sympathetic millionaire who has somehow latched on to what should be a far left political vehicle, the Mana Party. There is something insincere and manufactured about Dotcom, a sense that he is playing a game with the electorate in order to get back at the people he thought would support him. I realise this sounds like a conspiracy theory disseminated by the Right, but I think, in broad terms, it’s warranted by the evidence. I also don’t begrudge Dotcom his reasons: he was treated deplorably and illegally and deserves protection from extradition for those reasons. However, it also seems that the whole Moment of Truth thing is, for him, a game. Snowden, et al, were there to give what turned out to be an email of suspicious providence a little gravitas.

I would say that failed.

Last week, before the Moment of Truth but after the revelations of Dirty Politics, Dotcom admitted that he didn’t think his revelations would lead to a change in the government come election day. A charitable interpretation of that claim would have it that he saw the reaction to Dirty Politics and thought “Well, if that didn’t land, this email of mine sure won’t”. The less charitable version of the same story is that Dotcom always knew his evidence was shaky but thought the sheer audacity of revealing it a few days before an election would be a game-changer. Then he saw how Nicky Hager’s much lengthier, far-better evidenced argument that National was up to no good really only benefited fringe parties on the Right and went “Hmm… This won’t work after all.”

Oh, and as per usual when talking about these election issues, I half expect to be proved wrong in the morning.