Democratic Guardrails: Is NZ Safe From Authoritarianism?
Article – RNZ
Other nations are experiencing the erosion of democratic norms – even authoritarianism. Is our constitution strong enough to withstand it?
, 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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The Regulatory Standards Bill: What Is It, What Does It Propose And What's Next?
Article – RNZ Explainer – A new bill would make big changes to how legislation is drafted in New Zealand, but has also drawn considerable criticism as it works its way through Parliament. The Regulatory Standards Bill presented by ACT Party leader David Seymour is complex, but the heart of the matter is about how the rules and regulations that we all live by are put together, and whether that can or should be done better. It's now out for public comment through submissions to the select committee, due by 23 June. The bill has been called everything from a libertarian power grab to a common-sense solution to cutting red tape. But what's it all about, really? RNZ is here to tell you what you need to know. What is the bill? The bill proposes a set of regulatory principles that lawmakers, agencies and ministries would have to consider in regulation design. Those principles cover the rule of law, personal liberties, taking of property, taxes, fees and levies and the role of courts. Makers of legislation would be required to assess proposed and existing legislation against those principles. The definitions in the legislation as drafted set out Seymour's ideal for what makes good law, but are contested. (See end of article for a complete summary of the principles.) Seymour called the principles 'focused on the effect of legislation on existing interests and liberties,' while Victoria University of Wellington law professor Dean Knight said they are 'strongly libertarian in character'. The bill would set up a Regulatory Standards Board to consider how legislation measures up to the principles. Members of the board would be appointed by the Minister for Regulation, currently Seymour. In putting the bill forward, Seymour said: 'In a high-cost economy, regulation isn't neutral – it's a tax on growth. This government is committed to clearing the path of needless regulations by improving how laws are made.' The bill wants politicians to show their workings, he said. 'This bill turns the explanation from politicians' 'because we said so' into 'because here is the justification according to a set of principles'.' The bill was part of the coalition agreements National, ACT and New Zealand First agreed to in 2023 which included a pledge to improve the quality of regulation and pass a 'Regulatory Standards Act as soon as practicable' (page 4). The bill passed its first reading in Parliament on 23 May. It is now before the Finance and Expenditure Select Committee and open for public feedback. You can read the complete text of the bill right here: . The government's departmental disclosure statement also gives further information regarding the scrutiny of the bill. Okay, but what is regulation, anyway? The Ministry of Regulation, which was formed just last year with Seymour named as the minister in charge, says that 'regulation is all around us in our daily lives'. 'It's in the workplace, the sports field, the home, the shopping mall – in our cities and the great outdoors. Regulation protects our rights and safety, our property and the environment.' But what does that actually mean? 'Fundamentally, it's a law, something that tells you you have to do something or something that tells you you can't do something,' said constitutional law expert Graeme Edgeler. Aren't there already legislative guidelines for Parliament? Yes, such as the Legislation Design and Advisory Committee (LDAC), which produce legislative guidelines and advises on legislative design. 'There already are a range of 'best practice' lawmaking guides and practices within government, such as the LDAC's 'Legislation Guidelines', Regulatory Impact Statements, and departmental disclosure statements under the Legislation Act,' University of Otago law professor Andrew Geddis said. Seymour has said the bill is about adding transparency, not enforcement. In an FAQ on the bill, the Ministry for Regulation says the bill 'does not require new legislation to be consistent with the principles '. 'It requires that legislation is assessed for any inconsistency with the principles, and that this assessment is made available to the public. Agencies and ministers are required to be transparent about any identified inconsistencies, but this would not stop new legislation from progressing.' Geddis said while the bill was intended to operate in the executive branch of government only, it may have implications for the courts. 'Once the particular standards of 'good lawmaking' included in the RSB are written into our law by Parliament, the courts cannot but take notice of that fact,' he said. 'And so, these standards may become relevant to how the courts interpret and apply legislation, or how they review the way the executive government makes regulatory decisions.' Haven't ACT tried to pass something like this bill before? 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In terms of the financial impact, a regulatory impact statement by the Ministry for Regulation estimated the bill would cost a minimum of $18 million a year across the public service under the minister's preferred approach. Seymour said the cost of policy work across the government was $870m a year, and the bill was about 2 percent of that. And in an interim regulatory impact statement, the Ministry of Regulation itself expressed some ambivalence about the bill. The ministry said its preferred approach was to 'build on the disclosure statement regime … and create new legislative provisions'. It said it supported the overall objectives of the bill but 'that an enhanced disclosure statement regime with enhanced obligations, will achieve many of the same benefits' and also impose fewer costs. Does it remove the Treaty of Waitangi from governance? It does not say that, but the bill's silence on Māori representation in government has troubled opponents. 'On the consultation point, Māori clearly weren't adequately engaged with before the RSB was created and introduced into the House,' Geddis said. 'The Waitangi Tribunal's report on the RSB is unequivocal on this issue.' Geddis said in contrast, that LDAC guidelines contain an entire chapter of guidance on how Te Tiriti should be considered. 'That very silence creates uncertainty as to how the principles in the RSB are meant to interact with these principles of the Treaty.' Under principles of responsible legislation outlined at the start the bill, there is a statement that 'every person is equal before the law,' which some have said dismisses Māori concerns. Te Pāti Māori co-leader Debbie Ngarewa-Packer at the bill's first reading last month attacked the bill. 'If you look through the whole 37 pages, which I encourage that you don't, the silence on the impact for Te Tiriti is on purpose. 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