Democratic Guardrails: Is NZ Safe From Authoritarianism?

Phil
Smith, Editor: The House

Benevolent
democracy is not guaranteed. Nations can easily backslide
down ‘Despot Boulevard’, eroding rights and freedoms, the
rule of law or democracy itself.

The easy slide
towards authoritarianism seems to have been particularly
strong recently. Freedom House rankings between 2005 and
2021 show more countries have declined than have improved,
every year but one. Sometimes, twice as many.

It’s
worrying to watch. It made me wonder what constitutional
safeguards are there in our own democratic system to act as
guardrails against governments stumbling off the democracy
high road.

For help in answering the question I
wandered across the street from Parliament to Wellington’s
law school (within Te Herenga Waka-Victoria University of
Wellington), to meet one of New Zealand’s foremost
constitutional scholars, Professor Dean Knight. You can
listen to highlights from this interview at the link, or
read below for examples of some of New Zealand’s democratic
guardrails.

Our small ‘c’ constitution

New
Zealand does have a constitution, it’s just not all in one
place.

“We’re an odd country with an unwritten
constitution,” Knight says. “We don’t have that sort of
MasterTech supreme constitution that regulates executive
power very explicitly. We have what we might call a
customary constitution, a multitext constitution. Our rules
and expectations are littered all over the place – some of
them written down in legislation, some of them written down
in other important documents, some of them arise from just
the practice – an expectation about exercising power in a
proper way.”

“I guess the distinctive thing about New
Zealand is a lot of the checks and balances and controls on
executive power in our system are political in character,
rather than legal and involving courts. So we position
ourselves in a slightly different way than some other
jurisdictions.”

I drew Knight’s attention to one
aspect of the constitution, lying on a desk where we were
chatting – the current edition of the Cabinet
Manual.

“We’re very proud of it in New Zealand. It’s
something we’ve actually exported to the United Kingdom, who
borrowed the idea of it from us. And what we have in that
Cabinet Manual is essentially a collection of the existing
constitutional conventions about how executive government,
you know – ministers and the prime minister and departments,
will exercise their power and run the state.”

Like
many of the guardrails listed below, the Cabinet Manual is
an example of something that is not nailed down, but
evolves.

Responsible
government, collective responsibility and playing it
safe

Most checks on executive power flow from New
Zealand’s system of ‘responsible government’ – where the
executive is a subset of the legislature, and the
legislature can replace the executive or prime minister at
will.

“The Parliament, the House, expresses its
confidence in the collective of ministers as a whole. So
there’s an interlocking sort of relationship-confidence
between those ministers. Decision-making in New Zealand,
under the Cabinet system, is done collectively around the
Cabinet table.”

Those layers mean that not only the
prime minister or cabinet must be convinced of a policy, but
a majority of their parliamentary party must agree as
well.

“Everybody’s concerned to maintain the
confidence of their colleagues and the confidence of the
House of Representatives and ultimately the people. That
confidence… can evaporate, and so that conditions or
causes a degree of restraint [against] the prime minister or
ministers, acting to excess.”

Responsible government
in practice – facing the Opposition

Donald Trump
never has to stand in Congress and answer probing questions
from the opposition. In New Zealand having to do so is a
direct practical outcome of ‘responsible government’.
Question Time is not often allowed to function well, and
many ministers avoid answering questions, but it is still a
guardrail.

“Question Time is a crucial time for
opposition members to hold the executive government to
account. I know it feels like political theatre, but it
actually has a really important role in the
system.”

“The first obligation of accountability is to
render account, and that’s what happens – to explain what’s
going on in government, what’s gone right, what’s gone
wrong, what’s going to be fixing it. So that requirement to
render account, whether it’s Question Time, whether it’s
select committees through Scrutiny Weeks, or other things
like that, it has a civilising effect on the exercise of
power.”

MMP and negotiated
majorities

Parliamentary democracies come with a
significant potential weakness in guarding against
autocracy; the group that supplies the executive has an
automatic majority in the legislature. Under New Zealand’s
earlier First Past the Post (FPP) electoral system, that
majority was usually held by a single party.

Our
current proportional representation electoral system (MMP)
has provided a new guardrail by typically requiring
executive power to be negotiated between multiple political
parties.

“In the pre-MMP days, …we did have times
where we had a very dominant executive in the House of
Representatives… That era is described as an ‘elected
dictatorship’ or an ‘executive paradise’. …And that’s why
we celebrate MMP – when it atomised that power.”

“It
took us to a period of multiparty-government, where a
cabinet or a prime minister couldn’t automatically assume
that their program would get through the House, and they had
to negotiate and do better to try and ensure they can get
the sort of support for different initiatives. …That
sharing of power, that multi-party government brings in
tensions and frictions, and slows the process down, and
ideally removes excesses.

“The question we might want
to ask is whether our parties have now mastered the system,
such that we’re returning to a time in which the Government
can quite confidently just push everything through, and
there isn’t that contestation on a sort of a
policy-by-policy basis.”

Courts and
respect for the rule of law

In many countries, an
early target for a wannabe dictator is the judiciary,
particularly if there is a constitutional court or supreme
court with power to overrule the executive or parliament.
New Zealand’s courts do not have that power, though they can
point out where new law is contrary to the current
constitution.

“Our system of parliamentary sovereignty
means laws that are passed by the Parliament prevail, and
nobody can disapply the product of Parliament, except in
very unusual circumstances. But as a general proposition,
the courts don’t have the power to strike down
legislation.”

Knight says governments abiding by the
law is the “first and fundamental guardrail… Law can be
changed and the executive can change the legal settings if
they want, but they need to change that law if they want to
act differently.”

That may sound obvious, but as prime
minister, Robert Muldoon tried to ignore the law – and his
actions led to a constitutionally important court
decision.

“Respect for the law is a fundamental, but
it’s also vulnerable… to political expediency. I think
there’s a good question to ask is – culturally, how strong
is our commitment to the rule of law? Because that’s what
we’re seeing being eroded elsewhere, and there’s instances
where the Trump administration has basically signalled that
they don’t care what the courts say.”

“But here in New
Zealand, there’s still a sense when the courts speak, and
speak properly in terms of law, that that will be respected
by our governments and adhered to.”

The public service:
permanent, professional, politically neutral

In the
USA, when the presidency changes so does the entire upper
layer of government agency staff – as political appointments
are replaced. A
recently reiterated Trump executive order has deepened
the allowance on those replacements by reclassifying many
thousands of less senior, career public servants as
political hires. This action undermines the 1883 Pendleton
Act, which was passed to stop rampant political cronyism and
corruption, referred to as the “spoils
system”.

Neither of these are issues in New Zealand,
where government departments do not have political
appointees – not even at chief executive level. Chief
executives are appointed by the Public Service
Commissioner.

New Zealand’s professional, permanent
and neutral public service is a strong democratic
guardrail.

“That’s really, really important in our
system because it provides a stability in the system. It
generates a degree of friction, because one of the key
obligations of the neutral public service is to proffer free
and frank advice.”

Our system includes people whose
job includes saying to ministers, “What the heck are you
thinking?”

This crucial guardrail is at risk though
because, Knight says, “there is thinking that perhaps we
should follow more of the US model or some of the Australian
models that see politicians have a bigger say in the
selection. It reduces… one of the key checks and balances
that comes from that neutrality, that free and frank advice,
if you’re able to get people that are just heavily
responsive to do your bidding.”

The Governor General:
real soft power, theoretical hard power

One crucial
aspect of New Zealand’s constitution is that the actual
power is formally vested in the sovereign, who only
exercises that power on the advice of their ministers. The
governor-general gets to wear the ribbons and medals but…
“they don’t actually make the decisions about that power.
That’s done by ministers, Cabinet, who are drawn from the
House of Representatives.”

Unlike in some nations, the
Cabinet or prime minister cannot sign off executive orders
themselves. The governor-general still has to sign all the
laws, instruments and orders.

So what happens when a
government has a particularly bad idea or plans to breach
constitutional norms. Can the governor-general refuse to
follow their advice?

Knight acknowledges “there’s a
theoretical question about whether the governor-general
could refuse or act differently, [but] we don’t see that in
practice.”

“It’s a very, very strong constitutional
convention, grounded in the idea of democracy – that when
the prime minister and the ministers advise the
governor-general to act in a particular way, they will do
so. The governor-general has the ability to counsel and
warn, and even say, ‘I’m not convinced this is a great idea,
but I’m obliged to give effect to it.’

“There is some
of that soft power that lies in the
governor-general.”

Knight suggests that requiring
ministers to formally sit down with the governor-general and
explain to them what they want to do and why, in effect to
convince them, can act as a guardrail.

“It’s not a
high bar, because we know the practice over decades and
decades and decades is the governor-general [has always
agreed]. But that scintilla of doubt [that the
governor-general could refuse], at least in a theoretical
sense, might have some effective conditioning power. It may
mean that prime ministers or ministers don’t offer up advice
that would be very egregious and extreme and things like
that.”

Knight believes that separation of formal
versus substantive powers is a useful guardrail – it “in
some ways conditions and constrains the use of power against
its excesses.”

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