Sharples and Turia appointed as Tohunga Kaitohutohu – perhaps?

After Saturday's election, it looks like we're now heading down a well-tread path as we settle our Executive arrangements.

Leaders from support parties – ACT, United, Māori Party – will be awarded ministerial positions outside Cabinet as part of confidence and supply arrangements.  The Greens might also be able to secure some policy initiatives on a case-by-case basis, recorded in some form of memorandum of understanding.

But I wonder whether one particular party needs to think outside the box a little more?

Governments in transition – some constitutional FAQs

Some FAQs about the process of post-election government transition. If other questions arise, I'll add to the list as far as I can.

Who decides who is appointed Prime Minister?
This tasks falls to the Governor-General. It's one of the so-called "reserve powers", that is, those powers where the Governor-General is required to exercise an independent judgement, rather than merely acting on advice of the incumbent government.

(As an aside, there used to be a view – apparently still held in the UK – that it is the responsibility of the outgoing Prime Minister to advise the Queen of his or her successor. But the view properly taken in New Zealand nowadays is that, following polling day, a caretaker Prime Minister does not have the constitutional mandate, by themselves, to tender advice on who should be appointed.)

Reading the tea leaves: the declaratory judgment application

The Teapot Tapes camera-man, Bradley Ambrose, has applied to the High Court to seek clarification on the legality or otherwise of his taping of the now famous conversation between John Key and John Banks over a cup of tea in Newmarket:

The legality of its creation affects not only any liability – criminal and civil – he may face, but also further dissemination of the tapes and transcript.  The stakes have been raised by the Police issuing search warrants for four media outlets, after initially issuing a strong warning about illegal publishing of the conversation.

Tinkering with the line of succession

So, we find (oddly, from overseas sources) that our government has agreed to a change in the line of succession.  The male primogeniture (boys before girls) and prohibition on marriage to someone Catholic are to be removed.

The change was heralded by David Cameron in a speech at CHOGM:

“Attitudes have changed fundamentally over the centuries and some outdated rules, like some of the rules on succession, just don't make sense to us anymore: the idea that a younger son should become monarch instead of an elder daughter simply because he's a man, or that a future monarch can marry someone of any faith, except a Catholic.  This way of thinking is at odds with the modern countries that we've all become. People have been talking about changing the rules for some time, but when there are 16 countries sharing the same head of state and each have their own constitutional, legal and political concerns, it's absolutely right that we should all discuss this together.  That's why I asked Prime Minister Gillard for the opportunity to chair this meeting today with the heads of government from all 16 nations.  I'm very pleased to say that we've reached a unanimous agreement on two changes to the rules of succession. First, we will end the male primogenitor rule so that in future the order of succession should be determined simply by the order of birth.  We've agreed to introduce this for all descendents from the Prince of Wales.  Put simply, if the Duke and Duchess of Cambridge were to have a little girl, that girl would one day be our Queen. Second, we've agreed to scrap the rule which says that no one who marries a Roman Catholic can become monarch.  Let me be clear, the monarch must be in communion with the Church of England, because he or she is the head of that church.  But it is simply wrong that they should be denied the chance to marry a Catholic if they wish to do so.  After all, they're already quite free to marry someone of any other faith.  We agreed today that this has to change.”

Hmmm. I think we’re meant to be excited by this.

Don’t get me wrong.  The changes are some improvement.  Republicans like me have been pointing out the daftness of these rules for years and years.

But there is still much wrong with a system that sees a British monarch automatically assuming the highest constitutional office in New Zealand.

The line of succession is not just a set of arcane rules about which of the Windsor off-spring next assume the British throne.  They’re also our own constitutional statement of the qualifications for the position of Head of State for New Zealand.

The changes announced do make some difference: in 60-70 years, assuming the Duke and Duchess’ first born is a girl, she will be able to be Queen before any younger brothers.

But limited modernisation of this senior constitutional office in three or four generations leaves me cold.  The office needs modernisation in this generation, now, in anticipation of the end of the present Queen’s reign.

For Kiwis, the main defects with the monarchy remain.  The essential qualification – being born a foreigner of “special” blood – basically prevents any Kiwi from acting as our Head of State.

Let’s be clear about that.  Even with these changes, no Kiwi – Pakeha, Maori, Asian, Pacifika – will be our head of state.  

Go back to Cameron’s speech and replay it with a Kiwi lens:

“Attitudes have changed fundamentally over the centuries and some outdated rules, like some of the rules on succession who can be New Zealand's Head of State, just don't make sense to us anymore: the idea that someone born to a particular British family younger son should become monarch our Head of State  instead of an elder daughter simply because he's a man someone born in Westmere, Wairoa, or Winton, or that a future monarch can marry someone of any faith, except a Catholic our Head of State must be British, not someone Kiwi, not someone Maori. This way of thinking is at odds with the modern countries that we've all become.”

And, also astonishing is the fact that the government unilaterally agreed to this change, without involving Kiwis in the change process.

Sure, the accord in an agreement-in-principle and legislation will still need to passed.  But the die has already been cast.  It's theoretically possible for some of the Realms to adopt a different course – but unlikely and impractical.

And we know that New Zealand isn't just a passive participant in the initiative.  Earlier reports from the UK indicated New Zealand was leading a behind-the-scenes working party on the issue.  And the CHOGM news indicates New Zealand will continue that role for the implementation phase.

Set this against the government's domestic position on any changes relating to our Head of State.  They opposed the Head of State (Referendum) Bill, opposed any updating of the appointment process for Governor-General, and deliberately omitted the Head of State question from the constitutional review.

Also, the government has said elsewhere it will not be making major constitutional changes without "a broad base of support", either "broad cross-party agreement or the majority support of voters at a referendum".

The government is desperate to suppress any debate amongst Kiwis about whether we should have a home-grown Head of State.  Yet it is happy to tinker with the line of succession, without any public involvement or discussion.

The sooner we have a genuine discussion between government and the people about whether a Kiwi should hold our most senior constitutional office, the better!

Covert surveillance: post-Select Committee and pre-Hamed

A quick post to close the circle, following the release of the Select Committee report on the Bill.  Labour's bottom lines have effectively been endorsed by the Select Committee and the passage of a watered-down Bill now looks to be assured.

Some thoughts:

1. It is quite extraordinary that the Select Committee received 438 submissions in less than 24 hours.  While a number of these are form submissions, others are tailored and substantive.  I haven't done the analysis myself but someone suggested that all bar one were opposed to the Bill.

Quite an incredible response to a Select Committee process that originally wasn't going to happen.  

(As an aside, I am especially heartened by the number of law students who took the time out of their studies to make personal submissions. One of the things I've been trying to encourage and cultivate at Vic over the last few years is a culture of participation and engagement - we need "good citizens" contributing to our civic process, just as they did here.)

2. On the merits of the post-Select Committee position, see my earlier post on Labour's bottom-lines.

One additional point, I am worried about the extension of the temporary measures to numerous other agencies. Andrew Geddis has covered the issue here.  He notes the Bill still enables "all the State's investigative agencies" to engage in covert video surveillance.

This doesn't worry me so much for non-trespassory "over the fence" surveillance.  But for trespassory surveillance it is troubling.

Might we be concerned if local authority enforcement officers are engaging in covert filming as an adjunct to searches warranted under the Resource Management Act? Or the Standards Committee of the Law Society when searching the premises of a practitioner pursuant to a warrant under the Lawyers and Conveyancers Act? No thanks!

3. The Select Committee report and ministerial interviews that followed still seem to perpetuating the view that covert video surveillance had sanctioned by the Court of Appeal for the last 15 years, justifying the police action and the quick fix.

The Select Committee said:

"Before the Hamed decision, the use of covert video camera surveillance by State agents had been considered by New Zealand courts, and was found to be permissible under common law whether the surveillance was conducted on private property entered pursuant to a search warrant, or from a place not requiring a warrant to enter.
We note the Law Commission’s 2007 report questioned the legal basis of trespassory video camera surveillance. We note that this report was issued prior to three Court of Appeal decisions that we are advised affirmed the lawful use of such surveillance."

I still don't get it. That doesn't accord with my reading of the cases.  Or the reading by others.  Steven Price has explained things well here.

Last week I asked the Attorney-General's office for clarification of what cases were being referred to, after the Attorney made a similar claim.  I'm still waiting for a response.

Given the centrality of this point to the government's position, it would be helpful if the advice they have received was released (in some appropriate form) - rather than being advanced by oblique and unsubstantiated assertion.

UPDATE: Lyndon Hood at Scoop has been working on this line and has an interesting article here.  The PM's office seems to be referring to Fraser and Gardiner - both cases which deal with non-trespassory surveillance!