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John Key’s blue-eyed baby misdirection

Written By: - Date published: 10:00 am, October 5th, 2010 - 27 comments
Categories: accountability, democracy under attack - Tags: , ,

John Key really does say some extraordinary things when he’s trying to placate the media, and often it works because journos are bamboozled into accepting what he says as fact. Take his defence of the Canterbury Earthquake Response and Recovery Act (CERRA) yesterday.

Key wheeled out the usual nonsense about “a unique set of circumstances” necessitating the suspension of Parliamentary sovereignty. How many dictators got their start in ‘unique sets of circumstances’ and how many ‘unique sets of circumstances’ will this country face in the future where there will now be a precedent for doing away with the ‘extravagance’ of democracy?

Key added “I’m satisfied the law will work the way it was intended but ministers will need to be cautious and I expect them to be cautious,” Ah good. Because if there’s one word I think when I hear the name Gerry Brownlee it’s ‘cautious’. In democracies we don’t rely on ministers being ‘cautious’, we fetter them with rules and accountability.

But where Key went really strange was when he claimed the Governor-General is a safe-guard against the abuse of CERRA. “My understanding is that he does kick the tyres and does test what is put in front of him. Yes, the changes made under CERRA are by Order in Council and Orders in Council are assented to by the G-G – but note my wording “are assented to”. The G-G doesn’t “test what is put in front of him”; he just assents. To suggest that the G-G picks and chooses what he signs is ludicrous, and would imply that he is sovereign, not Parliament (or the elected Government under CERRA).

Yes, in theory the G-G could refuse to sign a law. The constitutional theorists call it ‘the blue-eyed baby’ law – if Parliament passed a law as repugnant as one that sentenced all blue-eyed babies to death, then the G-G could refuse to sign and the law wouldn’t come into force. But that power exists only in theory. No New Zealand G-G has ever refused assent as far as I know. When you ask the constitutional experts what happens next if the G-G does refuse to sign something they shrug their shoulders and say ‘constitutional crisis’ – in other words, the system has broken down, man the barricades, you’re talking civil war.

No-one expects Brownlee to try to pass a blue-eyed baby law, the kind of thing that might bring the G-G’s reserve power to refuse assent into play. What he will do, what he is doing already, is small abuses of power: favours to the trucking industry, extended emergency powers to Police, kickbacks for developers. The G-G has no constitutional right to refuse to assent to such abuses any more than he has the right to refuse to assent to dumb laws like National’s ETS or Fire at Will. He does not, and must not, judge the appropriateness of each law by some personal ‘test’. He can only refuse repugnant laws and, given the seriousness of doing so, that’s a very high test.

Key is simply misdirecting when he says that the G-G is a safeguard against abuses of CERRA. The truth is that Key’s ministers can do (just about) anything they like under the auspices of CERRA and the G-G will just sign on the dotted line, because that’s his job.

27 comments on “John Key’s blue-eyed baby misdirection”

  1. Did Key really say that the GG “kicks the tyres”?

    He has well and truely run out of slogans.

    • Jim Nald 1.1

      The Right Hon Prime Minister Tomfoolery a.k.a. Poppycock needs to be kicked for mouthing balderdash and claptrap.

  2. Maggie 2

    Canterbury earthquake, Reichstag fire – spot the differnce.

    • Blighty 2.1

      the communists weren’t responsible for either?

      wait..

    • DeeDub 2.2

      Godwined in two replies. A record?

      • a human 2.2.1

        The thing i hate most about Godwinism ?
        It stops people using their brain.

        Yes, astoundingly, there are times when the acts of a certain group in the mid 20th Century are actually relevant to what is being discussed !!

        • ghostwhowalksnz 2.2.1.1

          Our our lack of knowledge of other countries that used an emergency to overthrow democratic government.
          There must be heaps, but who remembers them.

          I call this the’ Marilyn Monroe effect’, you only name the most prominent when there are plenty of others to choose from

      • billy fish 2.2.2

        That is a damned tricky one when Godwin is invoked so soon, potentially you need to posit that an initial deployment of Reduco ad Hitlerium immediately invalidates any pretence of a sensible discussion and one is allowed to play the following Gambits
        Reducto ad PCgonemadium – taking a viewpoint that the other part is a pany waisted liberal pinko – perfect when dealing with rednecks – derails the whole arguement

        Reducto ad TiglithPillierthe thirdium – accuse the other party of taking a short term eurocentric view of history and posit that when it comes to despotic asshole Tiglith Pilliser II was waaaay worse

        Reducto ad Zebediuium – accuse the other party of acting like Hitler but substitue Zebedee from the Magic round about for Hitler

      • hateatea 2.2.3

        Thank you for introducing me to something new. It is good to extend one’s education and I had never seen a reference to ‘Godwin’s Law’ before. I have led a sheltered life!

        captcha: exceptions

      • BLiP 2.2.4

        You misunderstand “Godwin’s Law”. Its an observation, like the Law of Gravity. People using it in an attempt to silence others might as well say an apple “fails” when it falls to the ground. The fact that the N azi analogy is over used doesn’t mean that it is not apt in certain circumstances.

        • Draco T Bastard 2.2.4.1

          And is almost certainly apt when Godwin’s Law is invoked. Someone is almost certainly acting like a Nâzi.

  3. Dave Guerin 3

    I’ll leave the main issue about CERRA, but Anand Satyanand does seem to be much more assertive about his role than previous G-Gs. An SST story at the weekend (http://www.stuff.co.nz/sunday-star-times/features/4189179/At-Her-Majestys-service) goes into the process he follows, but I’d heard some comments from officials in the last few months that Ministers were having a much harder time getting things thru. The G-G has not refused anything, but he is asking for a much higher level of proof which, in itself, influences decision-making.

    Personally, I would like to see a stronger head of state role and I am a republican, but the main thing here is that the current G-G has just chosen to do things differently and has considerable leeway to do so.

    Of course, I don’t think that the G-G is likely to refuse anything and therefore is not a major protection against CERRA abuses, but the shift in the G-G’s role is of interest.

    • Blighty 3.1

      If Ministers are having a tough time getting the GG to sign things then he is acting unconstitutionally.

      His job is to sign whatver the elected government puts before him without question or negiotation. unless it’s a blue-eyed baby law.

    • hateatea 3.2

      Might the GG be asking more searching questions purely because he has been a lawyer and a judge and therefore is much more aware of the nuances in wording of legislation?

      Just asking

      captcha: parties

      • Blighty 3.2.1

        he’s not allowed to. It’s not the G-G’s job to decide whether or not something is a good law. All he can, theoritically do, is refuse to sign a truely horrible law and if that ever happends our entire system of government has broken down.

        Like I/S says, the G-G is constitutionally bound to sign his own deaath warrant.

        • Lanthanide 3.2.1.1

          Read the article. It doesn’t say he has refused to sign anything, just that he wants good clear reasons from the ministers for doing what they’re doing. Seems like a good idea to me.

          He says he’d resign before he refused to assent to something.

          • Blighty 3.2.1.1.1

            So, then Key is wrong because any ‘test’ the G-G is applying is not meaningful and any questions he asked don’t affect his actions (short of the blue-eyed baby zone). And even at the blue-eyed baby zone, the G-G would resign, rather than refuse to assent.

  4. Ari 4

    I prefer I/S’s description where the governor general would be constitutionally obliged to sign their own death warrant. 😉

  5. ianmac 5

    While over at the Press today Henry Holderness explains what he sees as “Crucial Safeguards.” This includes the power of the Governor General and the power of Judicial Review which he says can review regardless of the Act.
    http://www.stuff.co.nz/the-press/opinion/perspective/4197103/Crucial-safeguards-remain-with-act
    I think that it will be little things that creep through, not the huge spectacular ground shaking. Think ECan.

    • Blighty 5.1

      there’s no power of judicial review. It’s explicity ruled out in CERRA.

      • ianmac 5.1.1

        blighty: I think that Holderness is saying that in spite of the Act explicitly saying that judicial reviews are excluded, the court has the overiding right and responsibility to hear a challenge:

        “Where an ouster clause purports to prevent judicial review of a particularly far-reaching exercise of official power, the court is still able to avoid the effect of the ouster clause and give itself jurisdiction to intervene.”

        I am no lawyer but………

        By the way I think that it is great that Key is being asked to explain/justify, even if belatedly.

      • rich 5.1.2

        The G-G has similar rights to deny assent as the British monarch, who hasn’t refused such in over 300 years. In addition, the PM has the power to replace the G-G at anytime with anyone, including themselves.

        • Jum 5.1.2.1

          pm as g-g? Scary but it would be the ultimate insult to the discerning New Zealander.

  6. billy fish 6

    “Yes, the changes made under CERRA are by Order in Council and Orders in Council are assented to by the G-G”

    Brings to mind Charles the First and his Orders in Council – look what happened there

  7. ghostwhowalksnz 7

    Key is mistaken comparing our GG with a US president who can and does ‘veto’ a law by returning the law unsigned.
    Sometimes he uses a ‘pocket veto’, neither signing the law nor returning it to Congress.

    Whats the bet Don McKinnon is wheeled out to be our next GG?

  8. jimmy 8

    Funilly enough I was on a tour of parlement on friday and the guide told us that the G-G can refuse to sign something three times but after that it just goes into law regardless.

    • billy fish 8.1

      So similar to the way the House of Lords used to operate, interesting, is that still the case?

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