TWM  Constitutional Matters

COMMENT:  See Ian Wishart's letter to PM Helen Clark, 30 March 2001. More at
Also read Constitutional Crisis Over Foreshore & Seabed In Aotearoa
Suspicions about New Zealand’s constitutional position deepen, amid a refusal by the Prime Minister to take questions on the issue, and official confirmation that the Government cannot confirm the date that New Zealand gained independence from Britain, as IAN WISHART reports

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!" 
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. 
After repeated unsuccessful attempts to secure an interview with Helen Clark on the issues first raised in the February edition of Investigate, we asked the Prime Minister in writing for a "detailed rebuttal" of the points we’ve raised that suggest the New Zealand Government is illegal. 
Briefly, they include: 

  That at some point, Britain granted New Zealand full independence 
  That at that time, legal sovereignty passed from the British Crown to the people of New Zealand 
  That the Colonial Government and civil service continued in power without a specific constitutional mandate to do so, therefore becoming an illegal government 
"As you will have gathered from the information in the enclosed magazines," Investigate wrote in a letter on July 11, "there is a considerable weight of evidence to suggest that our current parliamentary system has no constitutional legitimacy or, if one wishes to argue that it does, that it has illegally usurped the sovereignty of its citizens without having a mandate to do so. 
"You will also note that we have engaged in debate with constitutional lawyers on the point, and the best argument so far in favour of the Government’s legitimacy seems to be that if a mistake did occur, it occurred so long ago that time has given it legitimacy through public acceptance. 
"Consequently, we’d like to ascertain Ms Clark’s point of view on whether New Zealand has some constitutional irregularities that need tidying up, and why she thinks the Government has any right to act in anything other than a caretaker capacity until the situation is properly dealt with. 
"The legal premise from which we are operating is this: At some point since 1840, New Zealand became fully independent from its colonising power, Britain. In the alternative, if it is not yet fully independent, then we must still be a British colony. If we are independent, at what point were the citizens of the newly independent nation asked to ratify or endorse it? 
"On what constitutional authority did the civil service and the Government of that particular day continue in power and/or present themselves for re-election? 
"How can independence be granted by a colonial power to the New Zealand people, but constitutional power continue to be manifested in the local colonial administration as if its right to exist and govern still existed unchanged? 
"The interview would also touch on the relationship between the Courts and Parliament, seeing as each relies on the other for its apparent legitimacy. 
"We invite the Prime Minister to peruse the arguments carefully, so that New Zealanders can hear, for the first time, a detailed rebuttal of the points we’ve raised." 
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 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 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". 
It may seem like a small point, but it has a huge financial and political impact. If the Government became illegal in 1986 when it passed that Act, cutting our ties to Britain, then from that moment it had no power to make laws, enforce laws, collect taxes or – for example – sell state-owned assets
The analogy is similar to sitting on the wrong end of a tree branch while sawing it off. The Colonial Labour Government elected with David Lange at the helm in 1984, drew its constitutional authority from a British tree. The Colonial branch could not magically remain in the air once its ties to Britain were cut, yet that is exactly what happened: it kept on governing, having declared itself sovereign without any specific ratification by voters. 
Listener journalist Noel O’Hare, in a follow-up to the articles first carried by Investigate in February and April, also casts doubt on whether the Government has a mandate to exist, just because it has won an election.
"Our system of Government rarely expresses the popular will," O’Hare writes. "Governments regularly claim all their actions are the will of the people because they have a general mandate from the electorate. But when they are presented with a specific mandate in the form of a referendum result they regularly ignore it." 
Nor do governments on either side of the Tasman respect the constitutional principles of the Magna Carta or the 1689 Bill of Rights. In Australia, the High Court of Queensland has been kicking tax protestors and gun lobbyists out of court faster than you can say "jackrabbit", ruling that their attempts to justify their positions on the grounds that Australia is still using a British Colonial Constitution passed back in 1901 will not be listened to by Australian judges. 
"Magna Carta and the Bill of Rights are not documents binding on Australian legislatures," Justice Michael McHugh ruled in one case in June, saying the federal and state parliaments could use the colonial constitution to "legislate in disregard of Magna Carta and the Bill of Rights. At this highest, those two documents express a political ideal, but they do not legally bind the legislatures of this country ...nor do they limit the powers." 
The New Zealand IRD has made similar statements about the status of the Magna Carta in New Zealand. 
One Australian journalist, writing in the Brisbane Courier Mail, described the legal action a waste of time because "The Courts apply the Constitution as it stands, and the laws made validly under it. Judges sworn to uphold the law and the Constitution cannot determine an argument based on the suggestion that the Constitution itself is invalid." 
It is of course a Catch-22 situation: any judge who admits that the New Zealand or Australian constitutions are invalid automatically puts himself out of a job for the same reason. 
But although New Zealand Courts refuse to allow challenges to our Government’s constitutional authority, the potential now exists for an American citizen - living in New Zealand, working for a US-owned company like Telecom which deducts PAYE tax from their wages and gives it to the New Zealand Government – to sue Telecom’s owners in a US Court for repayment of the withheld tax on the basis that it is an illegal tax imposed by an unconstituted Government. 
You would think that on such an important issue, and one so easily resolved, that the New Zealand Government would do everything possible to reassure the public of its constitutional legitimacy, rather than refuse to front up to questions on the matter. 
Investigate magazine filed Official Information Act requests with both the Prime Minister and the Attorney-General, seeking formal clarification of whether New Zealand is in fact still a British colony, not an independent nation; or if we are independent, confirmation of the date that it happened. The magazine also sought any documentation that proves that the Government has a constitutional mandate to govern – a question the Prime Minister has so far refused to answer
On August 2nd, Attorney-General Margaret Wilson gave the following response: 
"The Ombudsman has previously held that the Office of the Attorney-General falls outside the scope of the Official Information Act 1982. 
"In any event, I also note that under s18(d) of the Act, I may refuse your request as the information requested is publicly available in the official records. 
"To give you some guidance, I refer you to the Statute of Westminster 1931 (UK), the Statute of Westminster Adoption Act 1947, the New Zealand Constitution (Amendment) Act 1947 (UK) and the New Zealand Constitution Amendment (Request and Consent) Act 1947. 
"In addition, the relevant Parliamentary debates from that period provide a further source of information." 
Again, you would think that a simple question: on what date did New Zealand become independent?, would have a simple answer. Apparently not. 
While Margaret Wilson may believe it happened in 1947, that then doesn’t explain why the last Labour Government appeared to declare independence again in 1986. And if, as Wilson would have New Zealanders believe, we didn’t cease being a British colony until 1947, then how was it that New Zealand declared war on Hitler’s Germany on September 3 1939, before Britain did? Only an independent sovereign nation can declare war - under international law a colony cannot. 
New Zealand’s constitutional position - apparently now so muddy that even the Government is unsure of its status - is further confused when you consider that the Queen can still take direct control of the New Zealand armed services at any time, under the terms of Clause 5 of the Defence Act 1990. This power had earlier been enshrined in a piece of English law dating back to 1661 and the time of King Charles II. 
Interestingly, New Zealand’s Government isn’t the only one ducking for cover on a major constitutional question. 
On July 7th, a group of US business executives, lawyers and former Internal Revenue Service agents took out a full page advertisement in the USA Today newspaper, telling Americans not to pay their taxes and setting out the legal rulings that allow Americans to "opt out" of the federal income tax system. That advertisement cost more than US$100,000 to place, and it is having a huge impact...The advertisement is headlined "Most citizens are not required to file an income tax return, the 16th (Income Tax) Amendment to the Constitution is a fraud, if you file you waive your 5th Amendment rights" and details the legal challenge being mounted in the US against federal income tax...
Among those delivering the Remonstrance back on April 13 were Robert Schulz, the Chairman of the foundation, and former IRS Special Agent Joseph Banister. They met with officials from the White House, Congress and the Senate, who verbally agreed to meet Foundation representatives at a June 29th conference to discuss the legality of income tax. 
"However, on June 2nd," states Schulz in the USA Today, "the White House reneged on the promises it made during the April 13th meeting. As with three previous conferences, the Government has again refused to debate the grievances." 
White House official Jason Furman, the Senior Director and Senior Economic Advisor to the National Economic Council, told the Foundation: "The legality of the income tax is not a high priority item at the White House, and we will not participate in any conference on the subject." 
Again, just as in the New Zealand Government’s refusal to comment on our own constitutional crisis, the We The People Foundation is inviting Americans to draw their own conclusions from the White House reluctance. "If the Government had valid counter-arguments to the Remonstrance, it should be a simple matter to clarify the law, provide the appropriate regulatory references and promptly settle the matter. Our Government’s repeated avoidance of these debates should speak volumes. "We have now reached the point where the Government’s evasion must be regarded as an admission."... 
"Filing a federal income tax return is, in fact, voluntary," the advertisement continues, "because there is no statute or regulation that requires the vast majority of US citizens to file and pay income taxes, or to have taxes withheld from the money they earn. "Neither the IRS nor Congress can cite an authorising law or regulation. "Citizens cannot ‘voluntarily’ file a federal income tax return without surrendering their 5th Amendment right not to bear witness against themselves. You can be criminally prosecuted for your ‘voluntary’ return." 
That last point is important, as it may also apply in New Zealand law. In this country, subjects [legally, we are not yet citizens] have a common law right that they cannot be compelled to give evidence against themselves. Yet by filing a tax return, individuals are effectively stating on oath that they know and understand their full taxation obligations and have fully disclosed all relevant material to the IRD. The IRD can then use information contained in the tax return to prosecute individuals for alleged tax evasion. Given that it can take expert tax lawyers a long time to fully understand the tax law, is it fair to expect ordinary people to potentially incriminate themselves, even unwittingly, every time they file a tax return? More to the point, can you be legally compelled to dob yourself in, or is there a "conflict of laws" between the statutory requirement to file a tax return in New Zealand, and your right not to self-incriminate?... 

One of the US tax researchers named in the USA Today advertisement, Eddie Kahn, has also been involved in researching New Zealand’s tax laws, and is scheduled to make a speaking tour of this country next month. His visit is likely to increase the pressure on the Inland Revenue Department and the Government, both of which are now clearly beginning to buckle under the pressure of public challenges to their legitimacy. The dam is already bursting in the United States and it could result in the abolition of income tax. The chances of that happening in New Zealand grow stronger for every day the Government refuses to answer questions on the issue. 

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