INVESTIGATE: FEB 00
A CONSTITUTIONAL TIMEBOMB:
Is New Zealand’s Government and court system unlawful?
It could be the most fundamental New Zealand
issue of the century: if a group of Australian lawyers and researchers is
correct, the Treaty of Waitangi ceased to be valid on January 10, 1920, and
the New Zealand Government does not, lawfully, exist. In an even bigger potential
crisis – nor do the laws. As Ian Wishart reports, even New Zealand
constitutional lawyers can’t rule out the possibility they may be right.
If it sounds like the Coalition Government’s worst
nightmare multiplied by a factor of ten, you’d be right. Every three years
for more than a century, New Zealanders have gone to the polls to elect governments
believing, for lack of any reason not to believe, that this was how democracy
worked. You elect a government, they make your life hell, you vote them out
We were told, as a nation, that the Government’s powers
derived from our status as a constitutional monarchy. But now, important new
legal research is threatening to turn our perception of who we are, as a
nation, on its head.
The establishment view of constitutional law is that
New Zealand, lacking a written constitution, is a country where the Government
holds the ultimate power to make laws and regulations.
Just how entrenched that establishment view is, can
be demonstrated in a current debate in New Zealand legal and judicial circles
about the powers of the Courts to rein in bad Government. Lord Cooke of the
Privy Council, formerly New Zealand’s Chief Appeal Court judge, has suggested
the Courts do have some power to control the Government. He argues that if
the New Zealand Government re-introduced slavery, for example, that the Courts
could strike it down.
Unfortunately for those who believe the judiciary is
a check on Government power, Lord Cooke is a lone voice in New Zealand’s legal
community. Other judges and lawyers have indicated they have a constitutional
duty to uphold legislation passed by the Government, however damaging that
law might be.
Even so, there is evidence from Australia that
the mainstream legal and judicial view may be totally wrong – not because
the Courts have special powers to ignore legislation, but because New Zealand
and Australia’s governments are not lawfully constituted.
Leading academics and judges in Australia are lending
their support to research showing that both countries failed to constitutionally
validate their legal sovereignty when they became independent from Britain
early this century. If it sounds impossible that the laws of New Zealand
and Australia are invalid, read on.
The Australian Government has based its current lawmaking
powers on the Australian Constitution Act of 1900. That Act was passed by
the British Parliament while Australia was still a Dominion. The important
fact to remember is this: the Australian Constitution is a British law.
New Zealand was granted Dominion status in 1907. The
title Dominion meant nothing significant, in British law and legislation the
term was synonymous with colony. It wasn’t until January 10, 1920, however
that Australia became a sovereign nation in its own right when both Australia
and New Zealand became foundation members of the League of Nations – the
forerunner to the United Nations.
Membership of the League of Nations was restricted
only to sovereign countries, and Article XX of the Covenant of the League
of Nations required the extinguishment of any colonial laws applying to a
member state pre-Sovereignty.
That meant the Constitution Acts in New Zealand
and Australia passed prior to independence became legally void under international
law. It was a condition of membership of the League of Nations and later
the United Nations. But no new constitutions were ever forthcoming in either
It continues to be a founding principle of the United
Nations charter that the laws of one state cannot be used in another unless
ratified by a mutual treaty, so while the Australian Government has relied
on a colonial act passed by the British in 1900, Britain has said otherwise,
saying the Australian Constitution Act (UK) is null and void.
"No Act of the Parliament of the United Kingdom, or
an Act that looks to the Parliament of the United Kingdom for its authority,
is valid in Australia or its territories in accordance with the laws of the
United Kingdom and the Charter of the United Nations," wrote British officials
responding to an information request.
For decades, Australians have obeyed federal laws seemingly
passed with full legal authority on a raft of issues from law and order to
taxation. In all cases the Australian Government has claimed its powers from
the 1900 Constitution Act.
That fundamental reliance took a knock however, when
the United Nations’ International Law Commission ruled that Australia could
not rely on Section 61 of its Constitution to provide the power to enter into
international treaties, because the Constitution was a British law, not an
Australian one. Instead, said the UN, Australia needed to look to its membership
of the League of Nations in 1920 as providing proof of its sovereignty.
An Australian group calling itself the Institute of
Taxation Research has used that ruling and others to mount a serious challenge
to the constitutional authority of the Australian Government, saying that
if the Constitution Act did not give the Government power to sign international
treaties because it was void, nor could it be used as the basis for domestic
In 1992, the Australian High Court held that:
"The very concept of representative government and
representative democracy signifies government by the people through their
representatives. Translated into constitutional terms, it denotes that the
sovereign power which resides in the people is exercised on their behalf
by their representatives.
"In the case of the Australian Constitution, one obstacle
to the acceptance of that view is that the Constitution owes its legal force
to its character as a statute of the Imperial Parliament enacted in the exercise
of its legal sovereignty; the Constitution was not a supreme law proceeding
from the people’s inherent authority to constitute a government."
In other words, the Australian Constitution does not
establish the sovereignty of Australians or their government.
That ruling has been enough for the Institute of Taxation
Research to hit the Australian Tax Office right between the eyes, point blank.
In what began as a Freedom of Information request to the ATO, the group pointed
"For the Constitution to make the transition in status
to that of a ‘supreme law’ as mentioned by [Chief Justice] Mason, mere opinion
is not enough.
"Some legally recognisable instrument is required such
as a Memorandum of Transfer from the UK Government, or the record of a referendum
in which the Australian people have given informed consent to the new arrangements,
or some other form of document recognisable under international law.
"Since the ATO is claiming this has occurred would
their counsel, who as a practising barrister must know of this document and
where it can be found, please produce it. In the presence of such documentary
evidence I would be quite happy to acknowledge the continued existence of
the constitution and the laws deriving from it."
Despite the request, the ATO could not produce any
documentation proving its lawful authority to levy tax on Australian citizens.
"Firstly it was asked to present us evidence of the
documents setting up the ATO," explains ITR spokesman Ian Henke from the organisation’s
Melbourne headquarters. "We’ve finally got a document that says ‘the documents
do not exist’ signed by Erin Holland, Deputy Commissioner, on behalf of the
That letter was sent on 27 October 1999.
"There are several issues here," says Henke. "We also
searched the Commonwealth Gazette, and there was no evidence at all of the
ATO having been gazetted into existence. Finally in a court on the 20th of
October, counsel for the ATO finally admitted that it wasn’t."
It is ITR, a group of lawyers, the occasional judge,
business executives and researchers, that is making all the running on the
issue, and it’s an issue whose repercussions will be felt not just in Canberra,
but Wellington and Ottawa too.
"The point is, under international law once you get
a change in sovereignty then there is a break in legal continuity. The best
example we can give you is Hong Kong. June 1997. On 30 June there was still
British police, British law, British taxes, British Army, British Queen and
so on. On the 1st of July, one minute past midnight, all of those things still
existed – but they no longer had authority in Hong Kong."
In the United States, the transference of sovereignty
from the King of England to the American people was also marked by a break
in legal continuity – the War of Independence – followed by the establishment
of the Constitution.
The Australian Government, allegedly realising its
difficult constitutional position, passed the Australia Act in 1986 to repeal
a range of Imperial laws and shore up its status. New Zealand, in the same
boat as Australia, did likewise with the Imperial Laws Application Act of
1988. However ITR argues that both Acts are also void, as it is impossible
under international law and the UN Charter for one nation to pass legislation
repealing the laws of another nation.
So could there really be a major constitutional crisis
facing New Zealand? Or is it a technical "tilting at windmills" that will
New Zealand’s Constitution, like Australia’s, arose
from Westminster in 1852 to provide authority for the colonial administration
to govern on Queen Victoria’s behalf. New Zealand was accorded "Dominion"
status in 1907 and was therefore still a British colony when the Land and
Income Tax of 1908 was passed. Like Australia, NZ signed the League of Nations
Covenant in 1920 and, like Australia and Canada, was given legal separation
from Britain in 1931 with the Statute of Westminster. However, New Zealand
chose not to ratify the 1931 Statute, falsely believing that it could still
function as a British colony despite having signed the League of Nations
This was despite this speech from British Prime Minister
Lloyd George at the Imperial Conference of 1921:
"In recognition of their service and achievements during
the war, the British Dominions have now been accepted fully into the comity
of the nations of the whole world. They are signatories to the Treaty of Versailles
and all other treaties of peace.
"They are members of the Assembly of the League of
Nations, and their representatives have already attended meetings of the
League. In other words, they have achieved full national status and they
now stand beside the United Kingdom as equal partners in the dignities and
responsibilities of the British Commonwealth.
"If there are any means by which that status can be
rendered even more clear to their own communities and to the world at large,
we shall be glad to have them put forward."
The last paragraph should have sent clear signals to
New Zealand that a change of constitutional status had taken place, whether
the New Zealand government liked it or not. Colonies could not sign treaties,
only sovereigns could.
But it wasn’t until after World War II, and the formation
of the United Nations in 1947, that New Zealand formally severed its colonial
ties from Britain by ratifying the 1931 Statute of Westminster in a ceremony
on November 25, 1947. Britain then drafted a new Constitution for New Zealand,
again passed in Westminster, authorising its colony to change any provisions
of the old 1852 colonial constitution.
Except, as the Australian Government has already learnt
at great cost, no laws passed by Britain are valid in New Zealand or Australia,
nor have they been since 1920.
The British confirmation to Australia that "No Act
of the Parliament of the United Kingdom, or an Act that looks to the Parliament
of the United Kingdom for its authority, is valid in Australia or its territories
in accordance with the laws of the United Kingdom and the Charter of the United
Nations," could equally be applied to the 1947 New Zealand Constitution Act
passed in Britain for use in New Zealand.
"What principle of international law lets the parliament
of one sovereign country amend the law of another sovereign country? It doesn’t,"
One to disagree, however, is University of Canterbury
constitutional expert Philip Joseph, who says the gentle devolution of power
from Westminster to the three colonies of Canada, Australia and New Zealand
was legally effective, even if not as definitive as more traditional transfers
Joseph believes international law, as set out in treaties
signed by Australia and New Zealand, does not define how a nation must deal
with sovereignty issues at a domestic level.
"Unlike all the other more newly emerged Commonwealth
countries which have become sovereign, these three old colonies acquired full
powers of legal continuity through an ongoing gift of legal powers from Westminster
to the countries concerned."
This, of course, puts Joseph somewhat at odds with
Henke and others who take a more fundamentalist view of constitutional law,
and even Joseph admits that his views – shared by other mainstream constitutional
lawyers in New Zealand – may be wrong at the end of the day. The reason for
that is that it places an enormous amount of faith in Britain’s legal ability
to devolve power that way. Ninety-nine percent of countries have achieved
independence either by physical revolution or by declaration of independence.
The fact that only the three Dominions didn’t, and are now facing major constitutional
challenges, illustrates how the "gentle" way may in fact have failed miserably
to deliver lawful government.
"It never properly tells us when we exactly became
an independent sovereign nation, and insofar as we trace our powers through
this continuity line back to Westminster yes, it is a problem," says Joseph.
The question of whether New Zealand’s Government
has been passing laws since 1920 without pure Constitutional authority to
do so now lies open for legal debate and challenge, raising issues about the
possible illegality of major policy decisions like state-asset sales or Waitangi
Treaty settlements, not to mention the tax laws. The problem is even
more volatile, as an unconstitutional parliamentary system would mean
New Zealand has an unconstitutional court system, bringing more headaches
over whether any New Zealand court has jurisdiction to hear such a case.
Some lawyers suggest the New Zealand Government had
the power, during the transfer of sovereignty, to ratify by legislation the
earlier colonial constitution as remaining in force.
"If you wanted to argue the case," says Victoria University
constitutional law expert Tony Angelo, "you’d say that on that date, 1920,
when the cut off comes, that there has been an implicit affirmation or re-affirmation
of certain rules as the laws of this ‘newly independent state’."
Ian Henke doesn’t buy that argument for a second.
He points out that in the recent Australian referendum
on becoming a republic, the voters were asked to vote on a specific question
that would also have provided a break in legal continuity. And they were asked
to ratify it because there was no legal authority for the government to simply
"We, the Australian people, commit ourselves to this
constitution," was the referendum issue.
"By 61% to 39%, the people of Australia said ‘no’,"
says Henke. "so they can’t just ‘ratify’ it. The people said no."
But doesn’t a government have the lawful authority,
while it is becoming independent, to simply ignore its population and say
‘We know what’s best because we’re the Government’?
"Of course not, because ‘lawful authority’ in independence,
comes from the people. It’s the only place lawful authority can come from."
Canterbury University’s Philip Joseph agrees, saying
the Government cannot claim a constitutional mandate simply because it
was voted in during an election. "That’s too mechanistic in a sense.
You’ve actually got to go back to the fundamentals: what gives them the right
to be there to begin with, to actually put policies to the people?"
At a point during the interview, Philip Joseph acknowledges
that what is being challenged is not whether an individual statute is constitutional
or not – which has been ruled on many times in the past – but a much bigger
challenge: if the entire system has not been lawfully constituted, no national
court can possibly adjudicate on it.
"I take your point on what you are saying," says Joseph,
"and at this point you do step beyond the ‘safe’ parameters of constitutional
analysis. You are actually asking now: what are the bases of a people, of
a state, of a constitution."
The ramifications are huge. After all, you are asking
lawyers who you may seek advice from to accept that their admission to the
Bar and expensive law degree may not be valid.
Mainstream constitutional thought in this country has
always been that sovereignty did not come in a definable moment as it has
in other nations, but that the slow legal transition from Britain to New Zealand
over a period of decades was lawful. To ask lawyers, judges and politicians
to accept that the core of their constitutional beliefs and their power base
is wrong in law is like asking the Titanic to stop on a dime. It is still
a foreign concept in New Zealand legal thought that "the people" hold sovereignty
in anything other than name only.
The New Zealand and Australian people, when independence
from Britain came in 1920, were never asked by their Governments what laws
they wished their new nations to operate under. Yet only the people can be
sovereign, not the Government.
"Every country in the world has a constitution which
is its law," stresses Henke. "The key about your constitution, and the key
about our constitution, is that they are Acts of the British Westminster Parliament.
They have never been passed by the domestic parliaments down here. They are
not the will of these peoples."
In essence, he argues, the moves by Australia, New
Zealand and Canada to simply continue their existing government systems without
asking the citizens of the new nations for their views, were akin to building
a skyscraper without getting a building permit or planning permission. Sovereignty,
whether the governments realised it or not, had not passed from Britain to
the former colonial governments, but instead had passed directly into the
hands of the people by virtue of the international covenants that all three
countries signed. Yet the governments acted as if they now had the power.
There are still lawyers who argue that international
law has no domestic force. Again, the lawyers at ITR vehemently disagree.
"Certainly, in the early part of the century, sovereign
states’ rights were the only thing that was important. There was no such thing
as individual human rights," says Henke.
The reason for this was simple. Until World War I,
the world was essentially a collection of imperial powers – many of them controlled
by monarchs with absolute, divine right of kings, power. Sovereignty rested
with the monarchs, and was exercised via their governments. But the first
world war brought that state of affairs to an end, destroying the Austro-Hungarian
empire, Prussian aspirations and the Ottoman empire of Turkey that had once
stretched from India to Spain.
From the wreckage of the war, new nations emerged where
the people were suddenly free – sovereigns in their own right. The idea of
absolute government sovereignty died in the trenches of the war, and this
is the background that led to the League of Nations being formed – a group
of free countries, each respecting the others’ sovereignty and their citizens
rights to shake off colonial shackles.
"Now probably the major development of the last half
of the 20th century has been the swap from the emphasis on sovereign states’
rights, to individual human rights. At this point in history, that’s the dominant
shift that’s occurred," opines Henke.
"In Europe – and this is the problem that the people
in Australasia have – human rights, the 1966 Covenant, the 1947 Universal
Declaration, and the European Covenant on Human Rights, are all by treaty
part of European law and are binding on all of the parties to the European
Union, including England.
"So human rights are now binding, under international
law and international agreement, on the United Kingdom. Yet we have governments
in Australia who claim they operate on the basis of British law, namely our
Constitutions, but at the same time want to not be bound by the sections relating
to human rights.
"In fact, the remarkable thing is that two countries
[Aust & NZ] whose governments speak so loudly about other people’s abuse
of human rights are very careful to avoid having human rights, of the international
variety which are universal, being applied to their citizens."
Henke says the bizarre situation has arisen where Australia
has sworn to uphold the international declarations on human rights, but where
Australian courts have ruled the declarations do not apply domestically.
New Zealand too, is guilty of the same action by virtue
of Government policy. According to Philip Joseph, the New Zealand Government,
like Australia, has not allowed our domestic law to automatically recognise
international law even if NZ is a signatory to it.
"There is this dichotomy between the international
legal order and our national legal order. It is still one of the foundation
principles of our constitutional law that an international treaty which we
sign and ratify – does not become part of our domestic legal system unless
it is specifically incorporated by an Act of Parliament."
Which, as Henke argues, makes it a lot easier for two
constitutionally unlawful governments to continue in power, without giving
their subjects any rights of appeal under normal international legal channels.
"We actually had a judge say on the weekend, in discussion
with a QC, that he didn’t give a damn whether individuals were hurt – his
job was to uphold ‘the system’ – the system as opposed to the law.
"Now that’s the second judge we’ve heard say that.
Justice Haine of the Australian High Court said this back in December of
1998. His job was to ‘uphold the system’. I was in court when he uttered
But ITR admits there’s another problem: if, as the
evidence now strongly suggests, the Australian Constitution is invalid and
the government has no powers to pass laws or enforce them, then the Australian
courts also lack jurisdiction to hear such arguments.
By failing to consult their citizens – their new
bosses – about what kind of system of government they wanted from 1920 onwards,
and simply assuming that the laws that existed the day before were still legal,
Henke’s researchers believe the Governments acted illegally.
When America gained sovereign nation status, the new
Constitution expressly provided that British common law precedent would continue
to form the basis of American law, except where it was inconsistent with
the principles of the Constitution. In this way, Americans ensured that they
still had access to a code of laws.
But New Zealanders and Australians were not asked
if they wanted British common law dating from the Magna Carta to continue
as their legal basis. And without that permission, it is constitutionally
possible that the New Zealand courts have no power to draw legal precedent
from colonial times or earlier. In effect, there is a solid argument that
virtually no laws exist in New Zealand, and that even the 1688 Bill of Rights
protecting MPs from being sued may have no effect, as ITR points out.
"The only constitutional authority for British legal
precedent is the authority on which the British courts rest: the legal authority
of the British people as expressed through the British parliament. Now that
lawful authority does not apply in Australia. It doesn’t apply in New Zealand.
"So all of the court decisions made in relation to
that, unless we choose voluntarily and explicitly to take it into our laws,
is no more valid for us than laws used in France, the United States or China."
Again, looked at objectively, there is no constitutional
reason that British colonial law should have any more force in New Zealand,
than Ottoman law from last century should have any force in modern Turkey
The only way this legal crisis could be dealt with
is for the New Zealand Government to seek a mandate from the voters to be
granted temporary emergency powers whilst a new Constitution is drafted for
Unlike Hong Kong, freedom downunder was not marked
by a break in legal continuity while one side relinquished power and the other
took command. Instead the former colonial governments did not understand the
constitutional issues facing them.
As New Zealand constitutional law expert Tony Angelo,
of Victoria University, points out, sovereignty up until that time had normally
been transferred only at the point of a gun, usually after agitation. In
contrast, British colonial citizens were loyal and not actively seeking independence.
"The British constitutional pattern, particularly for
the old Commonwealth, was normally an evolutionary rather than revolutionary
process, so the idea that there is a specific date before which you are ‘dependent’
and after which you are ‘independent’, as I understand it, was not part of
British constitutional thinking.
"It is certainly a feature of some constitutional systems
in continental Europe. In other words, if you wanted independence from France,
everything would stop and start on a given date."
As you saw earlier, Britain had told Australia and
New Zealand on many occasions that they were now fully independent, but it
appears the colonials were not listening.
In Resolution 9 of the Imperial Conference of 1917,
the colonies were told "there is a necessity to alter the constitutional arrangements
of the empire. The conference feels it must put on record that such rearrangements
will be on the basis of equality of nationhood."
Australia’s Prime Minister Hughes tried, in 1921, to
draft a new Constitution for Australia to reflect the new nationhood. But
his plans were torpedoed by British-owned commercial interests lobbying politicians
against it. Hughes was voted out soon afterward, and the idea of a new Australian
Constitution never arose until the Republican Referendum last year.
New Zealand politicians were even more backward, failing
to realise they were legally independent for 27 years, and failing to implement
a Constitution right up to the present day. Although the Lange government
did pass the 1986 Constitution Act, it was an Act of Parliament not a people’s
constitution. It is also strongly arguable that the Constitution Act is
void because the Government had no sovereign power delegated to it by the
New Zealand people.
Leading British constitutional law expert, Professor
D P O’Connell, a recognised international expert, says transfers of sovereignty
must be marked by a break in legal continuity. But the former Dominions, thinking
stability was the most important factor, ignored the need to re-codify the
laws and constitutional basis of the government.
"There is a law called the Law of State Succession,"
says Henke, "which is basically the mechanics by which those breaks are overcome
to ensure that you don’t end up with total chaos. But nothing was ever done.
"All they’ve done is ignored the existence of the break
and run a PR job on the people telling them everything is fine, deliberately
made sure they never told them the truth, and just let it run from there."
The issue is so grave, that even New Zealand constitutional
law expert, Victoria University’s Tony Angelo, doubts that New Zealand courts
would have any powers to even hear legal argument if their jurisdiction was
challenged. He cites the case of Simpson v Attorney General, a New Zealand
case from the 1950s where Simpson alleged the Government was unconstitutional
because he discovered the electoral writs had not been issued within the timeframe
required for the election.
"The court said ‘well, this is all very fine, but we’re
not in a position to re-establish a parliament. We can say yes, everything’s
invalid because the process wasn’t followed as it should have been, but we’re
not in a position to re-start the machine’.
"The judges said ‘actually, if what you say is true,
none of us have been lawfully appointed and therefore we can’t validly decide
To get around the problem, the court opted for a novel
solution, ruling that the word "must" in the Act could also mean "may". Whether
the verdict was legally correct was irrelevant, as Philip Joseph points out.
"They managed to find a way around that, because it
would have brought the system crashing down on its head, otherwise. That
was a pragmatic response to a pressing constitutional challenge."
It is issues like this, Joseph concedes, that demonstrate
how the sovereignty of the people of New Zealand has arguably been usurped
by Parliament and by the Courts. Both institutions will attest to the constitutionality
of the other if either faces a challenge, whilst the people must accept their
verdicts or actions.
"That is an argument that you could put, but ultimately
if you test it in the courts you won’t succeed, I can tell you that, because
our Court of Appeal would simply say ‘we can trace our authorities back’."
As for the arguments by other New Zealand constitutional
experts that the Government’s power to make statute law overrides everything
else, Henke’s attitude is "prove it".
"The question is: where does it get its power from?
A very simple question. Every Government has to get its power based on something.
It can’t be based on the divine right of kings, because that ended when they
chopped Charles’ head off. The current Royal Family will be sovereigns only
if they obey the specific requirements of English statutory law.
"Now try and think about this one: the courts have
tried to push the idea that it’s like dual citizenship – you can have the
Queen of New Zealand and the Queen of the United Kingdom. But if you have
dual citizenship you can surrender either one without affecting the other.
"However in this case it’s an a priori requirement
that to be Queen of New Zealand, somebody must already be the Queen of the
United Kingdom. They could not abdicate as Queen of the United Kingdom and
remain Queen of New Zealand, so trying to separate the British authority component
is an impossibility. You can’t do it."
Which raises an even more dramatic possibility, according
to Tony Angelo:
"May we still be a colony? I mean, the person of our
sovereign is in the UK. Our final court of appeal is in the UK. We have not
localised those two things. Internationally we would say we are independent
and we have a Queen of New Zealand who is different from the Queen of England,
and the Privy Council advises the Queen of New Zealand not the Queen of England,
but that is a total mystery – it is an act of faith to accept that."
"He could be absolutely right," says Henke. "That’s
one of the possibilities – that we are all still colonies of Britain and not
independent. Now if that is so, then every one of the treaties we have signed,
and in Australia’s case that’s about 4000, are null and void. And we’re all
British citizens again, except that British law says we’re not, so we become
"As you can see, it’s a fascinating series of twists.
And we did not believe when we started out that we would find anything like
The problem now facing citizens of New Zealand,
Australia and Canada is how to regain constitutional control of their governments.
The only previous attempt at drafting anything close
to a real constitution in New Zealand was Sir Geoffrey Palmer’s Bill of Rights,
which codified a number of basic rights but said "notwithstanding" those
rights, nothing in the Bill could remove the Government’s statutory powers.
Ian Henke says attempts to draw up lists of rights
"Look, the issue is very simple. Once you become
a sovereign nation, all of the rights belong to the people. And they delegate
to a parliament and a government so much of their rights as are necessary
to keep government going. And that’s all. Anything that is not so delegated
remains the rights of the people.
"In other words, you don’t have to draft a Bill of
Rights to say what rights the people have got. All you have to draft, in
any decent democracy, is a Constitution that says which of the rights, belonging
to the people, the government is allowed to exercise."
So New Zealand’s new Constitution could say, "We the
people retain all rights, but we delegate the following powers to the Government…"
Allowing for the fact that future Governments could
face some unforeseen problem and require extra power, Henke suggests that
the Government should be forced to ask its citizens, via binding referenda,
to vote on constitutional amendments if necessary. Such a constitution could
even provide for the Government to be allowed to exercise emergency powers,
for a maximum of six weeks, in order to deal with an unexpected crisis. The
time limit allows enough time for the issue to be put to the vote.
"The Government doesn’t need all our rights to do things.
It only needs some. So the Government must have no rights over the freedom
of individuals, and so you just never give it to them. Then, in order to enforce
something, the Government has got to prove that what they’re trying to enforce
falls under the context of what they have been granted by the Constitution.
"It puts the onus of proof on the Government to prove
that they are acting lawfully, rather than as it currently exists where individuals
must prove that the Government is acting unlawfully."
Angelo believes the recent push by New Zealanders for
more control over their governments is driven by a subconscious realisation
that we’ve been flying blind, in a constitutional sense.
"We have only one protection, and that is the semi-entrenched
requirement of elections every three years. Intuitively, why people have consistently
said ‘we’ll keep the term short’ is, I think, because they’ve realised that
it is their only hold on the system. Because logically you’d look for a four
or five year term, but if you look at those referenda the populace consistently
say ‘no, don’t change it’.
"The Ombudsman came out of that desire for greater
control, Official Information came out of that, MMP came out of that, but
the basic issue is not being addressed and that is because it is not part
of the Anglo-Saxon constitutional tradition to do things this way.
"The fact is that now we’re probably the only nation
that thinks like that, Britain is now so caught up with the European Union
that even if it hasn’t set its own constitution it is falling within other
people’s structures. It seems we’re closest to the ‘pure model’.
"But until you can get some popular groundswell, no
politician is going to run with it."
In Australia, however, it’s a different story. The
Institute of Taxation Research is playing hardball with the Australian Government.
"An application for the appointment of an International
Criminal Tribunal has been submitted to the UN, for Australia. We have forwarded
copies to every single country who has a delegation to the UN. No country
has returned the document to us.
"Copies went to the Secretary-General as well as the
Security Council. A number of countries have offered active support in bringing
the matter to a head. It is currently being worked through by the [UN] Human
Rights Commission. It is currently being worked on by a number of the other
countries who were signatories to the treaties that gave Australia and New
Zealand their independence. They have indicated to us that as signatories
to those treaties they are duty bound to push the matter before the International
"We are, despite what the politicians here are saying,
moving down the track to a declaration by the International Court that this
current government is nothing but an illegal offshoot of the United Kingdom
"Even the UK Government is saying now ‘It’s not us!
It’s them. We’ve given them the legislation saying they’re independent. If
these people are doing it it’s them, they’re doing it wrong. We’re actually
asking the International Court, amongst other things, to have the United Kingdom
repeal the Constitution Act, just to strike it right out so there can be no
pretence any longer that it still exists."
What Investigate expected when we began this research
was to find strong and forceful legal opinion that this constitutional timebomb
claim was wrong – that it was merely the ramblings of a few cranks. Instead,
of all the leading New Zealand constitutional lawyers we spoke to, both on
and off the record, one comment sums them up:
"It is very problematic, and there is no clear answer
to these questions you are posing."
That such an admission carries with it the possibility
that our courts are invalid, our government has no constitutional right to
pass laws, that the Waitangi Treaty became null and void on 10 January 1920
when we signed the League of Nations Covenant, that the new drivers licence
laws are invalid – pick any issue you like – all of this means New Zealand
faces some very serious decisions in the very near future.
This question is likely to get a major airing when
constitutional experts meet in Parliament’s Legislative Chamber in April
to debate whether New Zealand needs a written constitution. At this point,
one might be tempted to say the question is not "whether", but "when".