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.