Royal Society of New Zealand Amendment Bill

I am very happy to take a call on the commencement clause of the Royal Society of New Zealand Amendment Bill.

💬 Louise Upston: You don’t have to.

I am very pleased to. I am quite looking forward to it, because, as I have said in the Committee before, commencement clauses are often underrated parts of legislation. In fact, their significance to the overall legislation is very, very important. I can see that members opposite are really excited to learn a little bit more about the significance of this clause.

Clause 2, on the surface, looks quite straightforward and simple. It states: “This Act comes into force on the day after the date on which it receives the Royal assent.” First up, that is slightly misleading because at the moment the legislation is not an Act; it is a bill. The bill, of course, could state: “This bill becomes an Act and comes into force on the day after the date on which it receives the Royal assent.”, but I think, by convention, as with so many things in this House, we use the word “Act” even though it is a bill. So much of what we do in the House, particularly when it comes to the process relating to the Royal assent, is based upon convention.

One thing that makes this bill interesting is that it is a private bill. It is not a Government bill and it is not a member’s bill. By convention, bills are given the Royal assent by the Governor-General on behalf of the head of State—in this case, the Queen—on the recommendation of the Prime Minister. Most legislation passed by the Parliament is Government legislation. The Government votes in favour of it. Under MMP, of course, we have minority government, and it is quite conceivable that a private bill or a member’s bill could be passed by the Parliament without the support of the Government. Yet the Prime Minister, of course, has to present to the head of State, or the Governor-General acting on behalf of the head of State, any legislation that needs to receive the Royal assent. The Prime Minister is obliged to do that by convention. By convention, the Governor-General, acting on behalf of the Queen as our head of State, is obliged to sign it.

But, as Keith Locke mentioned before, the Governor-General has a reserve power: the Royal assent can be refused. There is no specificity about when this bill will actually become law, because it will become law on the day after the date on which it receives the Royal assent. Of course, that assumes that Parliament will pass it and that the Prime Minister will present it to the Governor-General. We do not know how long it will be between Parliament passing it and the Prime Minister presenting it to the Governor-General. The Governor-General could withhold the Royal assent, and therefore the bill would not become law. There are no criteria in our constitutional framework for the Governor-General to withhold the Royal assent, and Parliament could do nothing about it if the Governor-General decided to do that.

Provisions in the constitutions of other countries that have similar clauses in their legislation allow them ways around a refusal to grant the Royal assent. For example—and I think this example is quite fascinating—the Belgian Parliament passed legislation and presented it to the King for the Royal assent. It was legislation to do with abortion. The King said he was morally offended by it and opposed to it, and therefore he refused to give the Royal assent. The Parliament—this is a fascinating piece of constitutional history—decided it would use a clause in its constitutional framework that allowed it to deem the King unable to execute the duties of his office, and therefore he was effectively removed as King for 1 day. If that happens, the Prime Minister can then sign the legislation and it becomes law. So Cabinet—all the Ministers—signed a letter saying they thought that the King was unable to execute his duties on that day. The Prime Minister signed the law and the next day it became the law, even though the King had refused to give the Royal assent. In New Zealand we do not have a similar provision.

The reason that situation was particularly interesting in Belgium was that that clause was designed for the possibility that the King could go mad. It was never designed to be used for just 1 day if the King did not agree with Parliament, or if Parliament did not agree with his withholding the Royal assent. It was not designed for him to be removed for 1 day, for the signing of one piece of legislation, and for the situation to then go back to normal. It was designed for the possibility of the King going mad, basically.

Of course, that situation has happened before. We need only look at the history books—and this is quite relevant to a bill to do with the Royal Society, one would think. It is quite conceivable that the head of State could go mad and refuse to give the Royal assent to this legislation, and there is not a thing that this Parliament could do about it. We do not have a provision, as they do in Belgium, whereby all the Ministers can sign a letter, remove the monarch for the duration of passing that particular legislation, and sign it off so it becomes law. Thankfully, there are very, very few instances where the head of State—the King or Queen—has refused to give the Royal assent to legislation in New Zealand. I am not aware of any, but somebody may want to correct me. I am aware that there was one instance in Australia where it did happen, rather controversially, but I do not think the Royal assent has ever been refused in New Zealand.

The point all this comes back to is that the convention we use in this House—and the wording is pretty much the same in most bills passed by this House—is that a bill comes into force on the day after the date on which it receives the Royal assent. It does not give any assurance or any certainty to anyone as to when a particular bill will become law. We might want to think about that in the review of our constitutional arrangements going on at the moment. We might want to think a little more carefully about the reserve powers of the Governor-General acting on behalf of the Queen, and about his or her ability to effectively overturn legislation passed by this democratically elected Parliament, this House of Representatives, the people’s representatives in this House. Should someone who is unelected, who holds office by virtue of who their parents are and by virtue of their gender, quite often—who is so undemocratically appointed—be able to veto legislation passed by a democratically elected Parliament? My view is that they should not, and therefore we might want to think about that in our review of the constitutional arrangements currently taking place. I think I will leave it there. Thank you.

I move, That the question be now put.

Motion agreed to.

Clause 2 agreed to.

Clause 3 Principal Act amended