Absurd flag flapping

The debate over New Zealand’s flag, to the extent it happens at all, will probably be pretty quiet. I think—but don’t know—that most New Zealanders just aren’t interested in all this and are ignoring it. The fringe, however, are already spreading nonsense.

Today I saw the unsigned graphic at left on Facebook. To the casual reader, it makes no sense whatsoever: Why would the Trans Pacific Partnership Agreement (TPPA) “need” anything, much less a new flag? The meme doesn't say. So, what’s this all about?

Chances are I wouldn’t have known, but, coincidentally, Roger Green emailed me a comment that had been left on a YouTube video of a segment on the New Zealand flag that was on John Oliver’s Last Week Tonight show a year or two ago (I saw it at the time and I thought it was stupid). But recently someone left a comment that was just, well, weird, and Roger sent the comment to me.

So, I went to the video and found a similar one that “credited” two people. One of them had posted the same thing as a comment on a TV3 post of a story they’d done about the flag, a week or two ago. That one, at least, was in full paragraphs. I eventually found the concept was taken from a guy who runs a far-right “news” site/radio show/etc. based in Dunedin. He peddles all sorts of mostly far-rightwing conspiracy theories.

What they were promoting is something they call “due authority” which, they’re convinced, only exists if the British Union Jack remains on the New Zealand flag. Why would that matter? Well, it doesn’t—not at all, not in even the remotest possible way. End of story—except to the conspiracy theorists, of course.

“Due authority” as they're using it is an entirely made up concept that has no relationship whatsoever to constitutional law. It does pop up in commercial law, however, especially with contracts, where a person (particularly someone who's part of an organisation) offering a thing to be sold (like a security) has to have the legal capacity—due authority—to execute and deliver on the agreement.

This seems to be related to a particularly wacky far-right, conspiracy-theory based movement called the “Freemen on the land”, active in several English-speaking countries. They believe that the only laws that are valid are those they agree to, and that such agreed to laws form a contract between the government and these so-called “free men”. If such a thing was really true (spoiler alert: it absolutely isn’t true), then, maybe, “due authority” might have some relevance. However, it’s completely irrelevant (this movement, by the way, is related to, but quite different from, the even more extremist “Sovereign Citizen” movement in the USA).

The site where this stuff seems to have originated quotes from a Cabinet Office paper from 2004, “New Zealand’s constitution – past, present and future” (PDF available). This document was a sort of briefing paper prepared for the then-Labour Party-led government. I don’t know the context of the briefing paper, but in 2003 the government had abolished the right of appeal to the Judicial Committee of the Privy Council (usually just called the Privy Council) in London as the final court of appeal, replacing it with a Supreme Court of New Zealand.

The reason that’s important is that it demonstrates how easy it is to make constitutional change in New Zealand because New Zealand’s constitution isn’t entrenched. That means that the monarchy or anything else in the constitution can be removed or changed by a vote in Parliament (though huge changes—like becoming republic—would go to referendum).

Nevertheless, the conspiracy theorists cite as their "evidence" the section of the Cabinet Paper that begins by saying, “Some links and institutions inherited from the United Kingdom remain. Some are ‘core’ to our current system of government”. The list includes the Queen as head of state of New Zealand, appointment of the Governor-General by the Queen, and “various statutory references to the Queen and the Crown”, among others; these three are central to New Zealand as a constitutional monarchy.

However, the conspiracy theorist then jumps in his copy of the list, moving immediately to include “the union jack on New Zealand’s flag” on his list (and putting it in all caps), without bothering to mention it’s actually included on a list of items in the next, entirely separate section, that calls the things “more symbolic”. That omission was clearly deliberate.

So: The links to the UK listed in the Cabinet Paper “could be reformed without changing New Zealand’s constitution in any fundamental way”, as the Paper puts it, and the Union Jack on our flag is symbolic. And, of course, anything in the constitution can be changed easily at any time.

In short: The flag is not the constitution, the constitution is not the flag, and the conspiracy theorists' “due authority” is an entirely imaginary thing that doesn’t actually exist in constitutional law, and has nothing whatsoever to do with either the constitution or the flag.

The TPPA, meanwhile—assuming it is ever finalised—will go before a Select Committee in Parliament which will vote on it, but, ultimately, the Cabinet alone will decide whether New Zealand signs on, and that’s entirely within our constitutional system for them to do this. Whatever happens, it won’t matter what flag is flying over Parliament!

The most important thing to know about all this is that whether the TPPA is approved or not has nothing whatsoever to do with any flag. In fact, the decision about the TPPA may be over before the second flag referendum, or the current flag may ultimately win and the TPPA could still be approved, anyway.

This is all knowable stuff, easily researched from official sources. But some people clearly prefer to make up their own story and spread utter nonsense.

Ah, politics…