11 February 2011

Republic can be a simple matter

[This OpEd appeared in the DominionPost on 2 February 2011]

New Zealand could and should easily become a republic, says Dean Knight.

MOVING to a republic involves changing our head of state from a hereditary monarch based abroad to a local, chosen by us. The easiest path is to simply promote the governor-general from being our de facto head of state to a real head of state.

Same powers, same functions, same duties, some Treaty obligations, same House - even the same name if we wish.

And the "Crown" and the "Realm" of New Zealand are then rebranded, to the Government and the Republic of New Zealand respectively or something similar. This approach is sometimes called "soft republicanism" - only making the minimum change to our constitutional structures in order to become a republic.

Nationhood and community identity demand we have a Kiwi head of state. A head of state should represent and reflect the values of the nation. Kiwi-ness is important.

The monarchy's British anchor sits uncomfortably with our present-day vision of ourselves as a nation.

We are a community with different demographics, different cultural mixes, and different aspirations from the community where the Queen resides. Also, under present arrangements, we will never see someone Maori fill the role of head of state.

We have already been described as a "de facto republic". In reality, the governor-general nowadays discharges the functions of the head of state. And when we speak of the Crown, by and large, we mean our executive government or the state.

But it's now time we reflect that reality. While the office of governor- general has evolved to exhibit many of these Kiwi values, their subordinate role - as a substitute for the royals in London - limits the extent to which it can truly be made an indigenous institution.

This is the key change. No longer should selection of our head of state be hereditary, discriminatory and foreign as is the case with the sovereign. It should be one of us instead.

The easy answer is to elevate the now- de facto head of state. The governor- general becomes the real head of state. No need even to change the name, nor for popular election either. That would risk changing the type of people who fill the office too much - and, perhaps, encourage a popular mandate they can never deliver on in a figurehead role.

But a small tweak would be needed to the current practice of nomination by the government of the day.

Best practice suggests the nominee should have the full confidence of Parliament, on behalf of the people. Any appointment should be ratified by a resolution of Parliament, and passed by a super-majority.

No need to angst about the powers and responsibilities of a new head of state. Legislation would ensure the powers and responsibilities remain the same.

No need for a supreme constitution, nor to codify constitutional conventions around the head of state's obligation to act on the advice of the government or the reserve powers regulating the formation of government. The lodestar of continuity and minimal change will ensure the head of state's operating mandate won't change.

Some say the "thorn" in the transfer of duties from the Crown to the republic is the Treaty of Waitangi. But these concerns are misplaced. As the Treaty obligations have already been transferred, so too can they be transferred to the new republic.

The reality is that, nowadays, it is New Zealand's executive government that is responsible for discharging Queen Victoria's original compact with iwi and hapu. That would continue. The symbolic status of the Treaty - and associated honour of the Crown - must be preserved too. This is important to Maoridom. The minimalism and continuity of soft republicanism helps preserve the extra-legal status of the Treaty.

This can fortified in republican legislation. Treaty obligations will be expressly transferred to the new republic, without promoting or diminishing its present legal status - or preventing its continual evolution. The Treaty's special significance can also be acknowledged in the background preamble.

The pragmatic approach is to defer any change till the Queen dies. This an acknowledgement of the some public fondness toward the present sovereign. But the Queen's longevity is not reason to rest on our laurels. Time is needed to get our constitutional ducks in a row.

The change requires popular support: a referendum. The ultimate power of the people trumps the theoretical arguments sometimes rolled out questioning our nation's power to make this change.

Polls show support for a republic is growing and is strongest among our younger generations.

Naysayers wrongly paint the move to a republic as a complicated mare's nest.

But, if we quell the excitement of constitutional reformers to tinker with every constitutional nut and bolt, it is not. Becoming a republic is quite simple.

No need for a Rolls-Royce. A Toyota Corolla, a minimalist's republic, will be fine.

Dean Knight is a senior lecturer at Victoria University's law faculty, an associate of the New Zealand Centre for Public Law and also the constitutional adviser to the Republican Movement of Aotearoa/New Zealand.

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Course Outline

Lord Justice Lawton in Maxwell v Department of Trade and Industry [1974] 2 All ER 122 said:

"From time to time ... lawyers and judges have tried to define what constitutes fairness. Like defining an elephant, it is not easy to do, although fairness in practice has the elephantine quality of being easy to recognise. As a result of these efforts a word in common usage has acquired the trappings of legalism: 'acting fairly' has become 'acting in accordance with the rules of natural justice', and on occasion has been dressed up with Latin tags. This phrase in my opinion serves no useful purpose and in recent years it has encouraged lawyers to try to put those who hold inquiries into legal straitjackets.... For the purposes of my judgment I intend to ask myself this simple question: did the [decision-maker] act fairly towards the plaintiff?"

This course examines the elephantine concept of fairness in the law, along with other contemporary legal issues.

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