|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
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
Briefly, they include:
That at some point, Britain granted New
Zealand full independence
"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.
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
"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
"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
"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
"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
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
"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
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
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
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
"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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