New Zealand Flag Referendums Bill

When we were last debating this bill, the Committee was debating Part 3 and Stuart Nash had the call. He has 20 seconds remaining.

💬 Hon Member: Make it good.

I will make it good, because this bill is a very, very poor bill. We know this. It has been reiterated. In fact, the vast majority of New Zealanders know this. When I speak to New Zealanders in my electorate, they say to me: “What about employment? What about job opportunities? What about economic development?”. They ask the question: why is the Government wasting money on a flag referendum, when there are—

I am very happy to take my call on this particular bill. I am just turning to Part 3, the part that we are debating. Of course, the major issue that the people in my electorate want to know about is why on earth the Government is spending so much money on this referendum at this given time. They simply cannot understand it when there is no appetite for change. Why has the Government not made the decision to firstly test the will of the public towards the need for a change or the desire for a change before it then goes and has another expensive referendum asking people to choose the option they wish to have? The issue here is why we would have a run-off competition to choose the preferred design if it is ultimately going to be voted down in the end anyway. Why bother going through that particular part of the process if it is going to be voted down anyway? That is the question that everybody has been raising with me, and I think it is a very legitimate one.

I have yet to hear anyone from the Government—anyone from the Government—provide a comprehensive answer.

💬 Chris Bishop: Wasn’t it in my speech?

No, not at all—not at all. We have not had an answer as to why not ask yes or no before asking people which option they would prefer if the answer was yes. There has not been a good answer from the Government on that. It is trying to do everything it possibly can to generate as much interest in the referendum, but what is interesting is that the more interest the Government generates in it, the more opposed people are becoming to the idea of changing the flag.

I think that says everything about where the current Government’s priorities are. It is more interested in talking about the flag than many of the very important issues that face New Zealand at the moment, and I think—

💬 Tim Macindoe: I raise a point of order, Mr Chairperson. We are currently in debate on Part 3, which is a very narrow part of this bill—essentially, dealing with regulations and validation of irregularities. The member has had nothing to say yet on either on those topics, and I would invite him to either speak to Part 3 or cease his call.

The CHAIRPERSON (Hon Chester Borrows): The point of order is well made. I am listening closely.

While we are on Part 3, if we turn to the highlighted section 5, as inserted by clause 69, which describes the New Zealand flag, I think that this might be a good place for me to address some of the comments that I have been raising. The New Zealand flag is described as “the national flag of New Zealand for general use on land within New Zealand and, where appropriate for international purposes, overseas; and … is the proper national colours to be worn by all New Zealand Government ships, and by such other New Zealand ships as may for the time being be authorised to wear the New Zealand Flag by or under the Ship Registration Act 1992.”

One of the reasons that I am interested in that is I made the suggestion at the beginning that if New Zealand were to adopt a new flag, why would it not do something similar to what was done with the national anthem and actually have for a period of time two New Zealand flags so that those who wished to continue to fly the existing flag could do so? That is the arrangement that we have in place for the national anthem. We actually have two national anthems in New Zealand. “God Save the Queen” is still our national anthem. It is very, very seldom used in New Zealand but those who wish to use it can still do so. The definitions of the New Zealand flag in this bill make provision for there being only a single flag.

I thank my colleague Tim Macindoe for providing me with the opportunity to read that particular section while he raised his point of order, because the issue here is why the Government did not allow for the possibility that, in fact, although there may be some desire on the part of some New Zealanders to have a change of flag, the vast bulk of people would prefer to stick with the existing flag. Why did the Government not make provision for that within the legislation? It would actually have been perfectly possible for the Government to make provision for there to be two flags just as we have two national anthems, so that those who are, for whatever reason, very attached to the current flag—and I have to say that I am not one of them but I note that the vast bulk of my constituents are. So I ask why the Government would not make provision for people to continue to use that flag.

It may be that there are some occasions when the use of the current flag would be more appropriate than the use of a new flag. I note, for example, that much of the feedback in this debate is about why we are doing this when we are commemorating the First World War and that, in fact, people would rather have the existing flag—the flag that New Zealand soldiers fought under in the First World War—on display at those events. That would be a legitimate reason why, potentially, we might have a definition that allowed there to be more than one official flag of New Zealand. At those events where it is more appropriate and that are of a commemorative nature, it may be more appropriate to have a definition in the bill that allows there to be another official flag, which is the existing flag, even if New Zealanders voted to change.

It is a pleasure to speak on what is, I guess, an important issue, but not an important piece of legislation. If that sounds somewhat contradictory, I think the fact is that we are putting the cart before the horse here, in my view.

In speaking on Part 3, “Miscellaneous provisions”, including validation of irregularities, I will refer to clause 69, which inserts new section 5. It is about the New Zealand flag. The reality here is that we have not yet decided what the flag should be, so I am putting before the Committee one of the options that was certainly brought to my attention. If the New Zealand flag is as described here in new section 5—“… the national flag of New Zealand for general use on land …”—then I guess the inclusion of a sea mammal is probably outside it. Although that might seem a little too cute, the reality is that the interpretation of this piece of legislation and of this part is really important. It must reflect the objectives, I guess, of New Zealand having a flag. What it says in paragraph (b) of new section 5(3) is that the New Zealand flag “is the proper national colours to be worn by all New Zealand Government ships, and by such other New Zealand ships …”. The point is that the colours that will be chosen for the flag will end up being the colours that each and every New Zealander should identify with. I am not sure what they should be.

I think black is a good start. I will put before you again this quite innovative flag design here. I do not think it is one of the 40 being put up—I have not, to be fair, gone through and had a detailed look at all 40—but it does cover a few things. For the current National Government, I would suggest, it is a perfect representation of what is about to happen, because we have the whale above the water with the kiwi and the lamb on it, about to do a big dive—about to do a big dive—as is this economy, taking with it the sheep and the kiwi. It is a perfect representation of the National Government in power, because the National Government is taking this economy into a deep, deep dive. It is ignoring all the warning signals showing that we are facing recession, particularly in dairy, for some time, and probably longer than even the whale can hold its breath.

I will come back to Part 3 here. It is important that there is widespread support for this legislation and all the details included in this bill. I do not think that is the case. I think that what the Government is trying to do here is pass a piece of legislation that does not have the full support of Kiwis and that does not have the support of New Zealanders who are looking forward and who are asking the questions about the colours that should represent us and the flag design that should represent us. Indeed, if the Government is so determined to go ahead, then put up the flag and then come to us with the legislation that may allow us to utilise the flag in the way that should be intended, to ensure that if we insist that the national colours, as is stated here in Part 3—“proper national colours to be worn by all New Zealand Government ships”. If the flag design is not the right one and the Government, as it has done in most areas, just bulldozes through with that intention, we are all lumbered with it, as is the navy, as are New Zealand ships, and as is every part of our economy.

This is not a good piece of legislation and Labour is raising concerns that I hope Minister Bill English will get up and answer. I hope he will get up and explain himself as to why the National Government is determined to push ahead with this waste of money, come up with a design, and a new focus that the vast majority of New Zealanders see as unnecessary and certainly as untimely. We have bigger issues that the Government and this House should be focusing on, not just a flag design. Perhaps the Minister can explain to me why we should not put this design up as a design, given that it is such a great representation of the National Government as it is at the moment: taking this economy into a deep, deep dive that is going to leave a lot of Kiwis drowning—and, indeed, a lot of sheep—because they do not have the proper support.

I would like to look at clause 68, “Validation of irregularities”. Clause 68(1) says: “In the circumstances described in subsection (2), the Governor-General may, by Order in Council, do any of the things described in subsection (3).” That sounds to me like the Governor-General has quite broad scope, actually, to act and to do a variety of things: to extend the time lines that are included in the legislation and to validate any things that have or have not been done. Basically, my reading of this—and, again, I was not on the Justice and Electoral Committee, so if members who were on the select committee could give us a little bit more information about this, that would be helpful—is that the Governor-General has quite a lot of scope to be able to do things by Order in Council.

I wonder whether one of the circumstances in clause 68(2)(b)—“if anything cannot be done at the time required by or under this Act;”—is if one of the things that cannot be done is for the Government to run a surplus or, maybe, to get the country’s debt below $101 billion, which might actually be a step in the right direction towards being the time when you would spend $26 million on a flag referendum. If that were not to happen, I wonder whether the Governor-General might be able, by Order in Council, to do one of the things under clause 68(3)—that is, subclause (3)(a): “at any time before or after the time within which the thing is required to be done, to extend that time;”. So, in other words, what I am getting at is, if the Government cannot get us back to surplus, or at least get the debt below $100 billion and actually get us a step towards the point where you would spend $26 million on a vanity project for the Prime Minister, maybe the Governor-General might be able to say: “You know what? Let’s extend the time before we have the first referendum, and let’s just wait until a time that is a little bit more appropriate for this referendum to occur.”

I think what we have heard loudly from the public—whether you are for or against the idea of changing the flag—is that people have made it quite clear that now is not the time, and one of the reasons that they are quite clear that now is not the time is the fact that we are not in surplus and we are at such a deep level of debt. OK, fine, pass the legislation now if we must, but set this up as a process that will occur a bit further down the track. I think that here, in clause 68, in Part 3, we may actually have the mechanism for that to happen. Cabinet could decide to listen to the people of New Zealand—that would be a first. It could decide to do that, and it could instruct the Governor-General, by Order in Council, to extend the time before which the referendum actually occurs.

💬 Tim Macindoe: I raise a point of order, Mr Chairperson. Again, I draw your attention to the question of relevance. There is nothing in clause 68(2) that is remotely relevant to the comments that this member is making. He is attempting to bring in ludicrous matters that are totally extraneous to a very, very tight and technical provision.

💬 Chris Hipkins: The point that I would make to you is that the Speakers’ rulings are very clear that the question of relevance is a matter for only the Chair and that it is, in fact, disorderly for anyone other than the Chair to interrupt a member’s speech to question them on relevance. The senior Government whip has done that twice now, when, in fact, the only person who has the prerogative to do that is you, as the Chair.

The CHAIRPERSON (Hon Chester Borrows): I invite the member Iain Lees-Galloway to continue with his speech. We will all be listening closely to what he has to say, relevant to the particular clause.

💬 Hon Bill English: Except me—I’m not listening.

I could tell that you were listening, Mr Chair. It is a shame that the Minister in the chair has just admitted that he is not listening. He may as well just go out there and say that to the public of New Zealand: “I’m not listening.” The Deputy Prime Minister, the Minister of Finance, has just admitted that he is not listening. He is not listening to this debate, and that is exactly what the Government is doing. It is not listening to the people of New Zealand, who have overwhelmingly said: “This is not the time for this debate. This is not the time to—

The CHAIRPERSON (Hon Chester Borrows): Well exploited, but get back to the clause.

Well, I was very happy talking about the clause before I was interrupted by the senior Government whip and before the Deputy Prime Minister interjected that he was not listening, and I was quite happy to respond to the interjection from the Deputy Prime Minister that he was not listening. But, honestly, I know that the senior Government whip is very keen to shut this debate down, but those were serious questions. I was not on the select committee. I am reading this clause—I am doing a close reading of this clause—and I want to know, either from the Minister who is not listening or maybe from one of the members opposite who was on the select committee, whether that is possible. Is that possible under clause 68? Could Cabinet, through the Governor-General, by Order in Council, extend the date, or perhaps delay the date, for the referendum to a point in time that might be more acceptable to the public of New Zealand? That is my reading of clause 68, and I would be very happy to have that clarified either by the Minister or by any member opposite.

I would like to touch on clause 69, “Amendments to Flags, Emblems, and Names Protection Act 1981”, which replaces section 5, regarding the New Zealand flag. This is an interesting thing that is going on with the current flag—which is called the 1902 flag—which would be “recognised as a flag of historical significance to the Realm,”. I find new section 5A(2) really, really strange. New section 5A(2) allows people, in the event that the flag changes—

I want to speak to clause 69(4) in Part 3 and, in particular, its reference to section 5 because this, in many senses, is the most important part of the bill. It is the part of the bill that actually describes what our national flag does. What it says in section 5(2) is: “The New Zealand Flag is the symbol of the Realm, Government, and people of New Zealand.”

I do not think there is anybody in this debate who does not think that the flag is an important symbol of our country. I know that for my father’s generation it was the flag that they fought under and that their mates died under. For many contemporary New Zealanders, it is the flag that is flown—I saw it fly, sadly, on Saturday night at the Bledisloe Cup and, much more happily, in terms of the Silver Ferns—and it is a symbol of a country that people are really proud of.

If it is the symbol of the people of the nation, it makes sense that the people of the nation should have the power to change the flag, and not 121 elected representatives. So in one sense I support the process that not Parliament but the people make the decision, but there are things in the way that this is being done that have undermined the consensus that is necessary in order to maintain a flag that is widely agreed to by the people of this country as representing their independence, their sovereignty, and their pride in the nation.

I think that what the purpose of the flag is, as set out in section 5(2), is undermined by the process that we have actually taken. The first thing that any Government that was contemplating changing the flag should have done was try to work across parties so there was a consensus around the process by all the parties in this country, and, clearly, that has not happened. That has undermined the credibility of what we are trying to do in the Committee today. It is the Government’s failure in that regard that disappoints many of us who would contemplate a change in our flag. I do not think I have any more right than any other New Zealander to determine what the symbol of our people should be, but I personally would like to see a change in the flag. But what the Government has done has undermined the consensus by which an appropriate way of changing the flag might have been adopted.

You see, by holding two referenda that are outside an election, you are likely, on best estimates, to get maybe a 30 or 40 percent turnout. You cannot change the symbol of the realm and the symbol of the people on a turnout in a postal referendum that maybe only a third of the people will vote in. So my question to the Minister is: why not hold this referendum at the time of a general election, when you will get an 80 percent turnout, and then the result will have some credibility about what New Zealanders want as the symbol of the realm and a symbol of us as New Zealanders? That is the way that this process should have been followed.

The other thing when you are talking about the symbol of the realm—and the bill goes on to talk about the symbol of us overseas. The last thing, surely, that a Government wanting to follow proper process would do is introduce a bill to change the flag on the eve of the centenary of the start of World War I, when so many of our surviving veterans, not from the First World War but the second one, are focused on the flag that they fought under. You would almost think that the Government has deliberately undermined its own intent of wanting a change of the flag and wanting New Zealanders as a whole to accept an alternative as the symbol of our country.

So the timing was awful, the process was appalling, and the lack of bipartisanship or cross-party support has been appalling. One of the reasons for this, I have got to say, is that the Prime Minister has talked about this change, not as a change by New Zealanders of their flag, but as a matter of his pride and his project. During the question time we have just had, he quoted Mike Hosking. He said—

It is a pleasure to speak to Part 3 of the New Zealand Flag Referendums Bill. I do think there is a strange irony or tension in, I think it is, the changes to section 5(2) and (3) in clause 69(4). I will read it out, as my colleague Phil Goff did, because I think section 5(2) and (3) really does talk about the significance of the flag to our nation. Section 5 says: “(2) The New Zealand flag is the symbol of the Realm, Government, and people of New Zealand. (3) The New Zealand flag—(a) is the national flag of New Zealand for general use on land within New Zealand and, where appropriate for international purposes, overseas; and (b) is the proper national colours to be worn by all New Zealand Government ships,”. So that sets out just how significant the current flag and any possible new flag may be.

But the select committee process that this bill went through treated the submitters as though they were insignificant. I believe that there were close to 750 submissions from people who did not get the chance to make a submission in person at all. Those who did submit got 5 minutes on an issue of such national significance. I believe the only organisation that did get more than 5 minutes was the Returned and Services’ Association, and I think that is appropriate that it did get more, but you would think it would have got more than 10 minutes for something that is of such huge significance to this nation.

There is also something within this section that talks of the significance of the timing of this. We have just come back from a 1-week adjournment. I did not have anyone knocking down my electorate office door saying: “Kris, can you please make sure that we change the flag.” I had a lot of people come to me to talk about domestic violence, and I had a lot of people come to me to talk about housing and about making sure they have jobs, but no one came and knocked down the door to ask us to change the flag. In fact, the Government turned away as many people at the select committee process as the number of those who actually attended all the meetings right around the country to say: “This is a good idea.”

This is a significant issue, and I think that section 5, inserted in clause 69(4), does talk about the significance of what we are doing. But it is clear to see from the lack of uptake with the Government process, with its engagement with meetings, and that cost a hell of a lot of money—I think a lot of the feedback that the Government would have got at the select committee process that it turned away would have been negative about this change. The general feeling amongst the community—I think it was the New Zealand Herald that said that 70 percent of New Zealanders do not want this change and that this is the wrong thing to do right now.

A lot has been made about the cost that is involved with this—$26 million is not chump change. There are plenty of other things that this Parliament could do with $26 million rather doing than something that New Zealanders do not want done right now. There may be a time and a place to change the flag, but it is not right now. My personal feeling is that I do not want to change the flag. I have changed my mind on the flag. When I was young, I said: “Yes, let’s have a new flag.” In fact, over time I have become much more aware—becoming a bit more mature and having travelled overseas—of the significance of the New Zealand flag.

We can talk later when we come to schedules 1, 2, and 3 about the process the Government is using to ask the questions of the public, which is a bit skew-whiff, about changing our flag, because it has got that round the wrong way, but right now New Zealanders do not want this. Section 5, which is inserted by clause 69(4) of this bill, shows just how significant what we are doing is. It is not just a symbol that we throw away; it will go on the arms of people who will fight for this nation. So if we are going to do it, let us do it because the people want it changed, and they choose what they want to choose. And if they do not want to change the flag right now, then let us not do it.

But we are not even asking that question first. We are asking what you would like if the flag were to change. I do not think that any kind of sane person would use that process. Any person outside this Chamber would think that that is arse about face. We want to know, first, whether you want to change the flag, not what do we want to change it to if we get the chance to change it.

💬 Tim Macindoe: I raise a point of order, Mr Chairperson. Yet again we have a member straying far into a version of irrelevancy. I would point out that under Speakers’ ruling 86/1, there is no reason why I cannot draw that to your attention, and I do so now.

💬 Carmel Sepuloni: This was raised by our senior whip earlier. It is not the role of the National Government senior whip to point out the relevance of our speeches, and we trust, Mr Chair, that you will use your discretion and advise us if you think there are any problems with relevance.

💬 Tim Macindoe: Speaking further to the point of order—

The CHAIRPERSON (Hon Chester Borrows): I do not need to continue taking points of order. If there was to be some spat over who can raise what when, take it somewhere else. Do not soak up time in the Committee, because it undermines the point of order that the member is making that the Committee should not muck around with this particular line of debate. The member has the floor and I invite him to continue.

Thank you very much, Mr Chair. I go back, for the benefit of the senior Government whip, to clause 69(4), which is about the significance of the decision that we are putting in train. This is not something that we want to do just because the Government wants to do it. It is of significance. It is a symbol of this realm.

I move, That the question be now put.

I would like to talk about section 5A(1) in clause 69. What it actually says is that the “1902 Flag”—what they are calling the current New Zealand flag is the “1902 Flag”—“is recognised as a flag of historical significance to the Realm,”. I do not know why the word “historical” is in there. It seems that by legislation we are already consigning the current flag to the past.

Remove that word, I would suggest, because this flag is still of huge significance to a whole lot of New Zealanders and a whole lot of New Zealand groups. As has been mentioned, those from the RSA in particular are affronted that this flag has already been consigned to historical significance. It is of huge current significance to the people of New Zealand. There is no doubt about that whatsoever. In fact, I think that for the first time ever I disagree with Mr Goff on something. I actually like the current flag. I would like it to remain. But when Mr Goff talked about the fact that this was not put at a referendum in a general election—actually, this was highlighted in the regulatory impact statement. The regulatory impact statement actually said that one of the main risks around this is that there will be disengagement. The way to really get engagement from Kiwis is to have this at a general election, but we are not going to do that.

The other point I would like to make is in respect of section 5A(2). It says: “Any person or body (other than a government department) may use the 1902 Flag, except where required by law to use the New Zealand Flag or another specified flag for a particular purpose.” I would have thought that if the Prime Minister was spending so much political capital on this—and he is, according to the polls, because the vast majority of New Zealanders do think this is mistimed and is a huge waste of money, considering all the issues we have got—then this legislation would actually be very, very clear that the New Zealand flag must be flown at all times.

Part of the reason, we are told, that we need a new flag is that there is confusion between the New Zealand flag and the Australian flag. Well, what this legislation actually does is nothing to alleviate that confusion at all. In fact, what it does do is it adds to the confusion, because this legislation says that anyone apart from a Government department may fly the New Zealand flag. This gives them a legitimate right to fly the New Zealand flag at any time. It does say: “except where required by law to use the New Zealand Flag or another specified flag for a particular purpose.” I am not too sure what the definition of “a particular purpose.” is. I can make some assumptions, but I have absolutely no idea what the definition of “a particular purpose.” is. So this just creates a whole other level of confusion.

In section 5A(7)(d) it talks about “the days or occasions on which and the times during which the 1902 Flag, or any other flag of historical or national significance, may be flown:”. Again, I have looked through the schedules and I could not find a list of days that this section relates to. I would love the Minister in the chair to stand up and just let us know. Is it all statutory holidays? Is it every Sunday? Is it only Anzac Day? Is it a day when people are allowed to wear their relatives’ or ancestors’ medals? I am not sure.

The main aim of alleviating confusion about our national identity seems to have been taken away by this legislation, because this legislation legitimises the right of every New Zealander to fly the 1902 flag. I think that what we will find, probably as an element of protest, is that there will be more New Zealand flags—i.e., the 1902 flag, the current flag, the one on my lapel—flown around this country than we have seen for a generation, as people say: “I reject this whole process. I reject the fact that the Government is spending money at this point in time on a worthless cause when there are so many more important issues that we could be spending $25 million on. We will go out there and we’re going to fly that New Zealand flag.” In fact, at my house in Napier I have a 100-year-old kauri flagpole, and the flag that flies from that pole will be the 1902 flag. It is at the moment and it will be, going forward. My house is not a Government department, so according to this legislation I am allowed to fly that flag whenever I want to.

But the other thing is that anyone can fly that flag—a Government department, a Government ministry can. In fact, the confusion that will be created by this is something that I think is a real anomaly in this legislation, and I would have liked to see it disappear. I would have liked to see the Government have the courage of its convictions. If it is spending this amount of political capital, then be clear. You fly the New Zealand flag or you do not. This bill says you can do whatever you want, except on a couple of occasions, and we have absolutely no idea of what they are.

I move, That the question be now put.

I wanted to ask the Minister in the chair, the Hon Nick Smith, about how he interprets parts of new section 5A in clause 69. When I read parts of that new section I get a little bit confused about what it is actually trying to achieve, because we have in new section 5A(2): “Any person or body (other than a government department) may use the 1902 Flag, except where required by law”—except where required by law—“to use the New Zealand Flag or another specified flag for a particular purpose.” Then I go down to subclause (8), which creates new sections 10(2) and (3) in the Act. It says: “The Minister may, either in any notice issued under subsection (1) or otherwise, set out for general information and guidance rules of conduct and the etiquette to be followed in the flying or other use of any of the following: (a) the New Zealand Flag: (b) the 1902 Flag:”. But then new section 10(3) says: “Any rules set out under subsection (2) do not have the force of law.”

So we have in one provision reference to “except where required by law”, and then further on we have a provision that empowers the Minister to set out rules of conduct and etiquette to be followed in regulations. However, the rules do not have the force of law. So I am a little bit confused about how we interpret the words “except where required by law” in new section 5A(2), and the other provisions to which I have referred. I actually think that if anybody was to read this legislation, they would not know whether or not, really, they were actually allowed to use the 1902 flag or not, with or without regulations, or whether or not they had the force of law for the purposes of new section 5A(2) or not.

So I think there needs to be some answer given to how we should look at all of this, and, in particular, think about people who would look at this legislation and say: “OK, maybe we have a new flag. I hope there is not, but maybe there is a new flag—one of those gormless symbols that we saw in a list the other day. Maybe there is one of those, but am I still entitled to fly this current flag or not?” If you look at all of that legislation, I think you would be pretty hard-pressed to know what position you were in with regard to that—I really do. I think that needs to be answered and the position clarified, and if it cannot be clarified, then the bill should not proceed, because it is just not clear enough.

I move, That the question be now put.