With due deference, the DUE AUTHORITY flag conspiracy theory is rubbish

If you are a New Zealander, and you have access to either Twitter or Facebook, then you will doubtless be aware that there is a particular conspiracy theory going around about our flag referendum which suggests changing the flag is a much bigger deal than John Key and friends are letting on. You might, for example, have seen this image doing the rounds:

One of the more fulsome accounts of this conspiracy theory can be found at Ben Vigden’s site here. It starts thusly:

The nature of heraldry dates back to feudal times when the flags where not just things you waved but a coat of arms stated to whom you pledged allegiance to. It showed what your rank was, entrenched your legal status from what power or Due authority your knight exercised his rights and privileges, the Crown or the State. One of the frustrating things about the change being made to the NZ flag is that no one has considered that change of heraldry and how it impacts on the very notion of DUE AUTHORITY.

Notice the all-caps. There is a lot of Freeman on the land to this thesis, which is to say it relies on some fairly weird pseudo-legalistic framework in order to work.

The nuts of the theory really is this:

A change of flag means not only that we have taken a major step to removing the DUE AUTHORITY of the crown. It also means we take away the very power which enforces both the 1990 Bill of Rights Act (the closest thing NZ has to an entrenched Constitution) and the founding plank upon which the Treaty of Waitangi has meaning. It does not matter if your pro or anti monarchy but if you take away the DUE AUTHORITY of law (which includes our flag) you then open the gates of hell or to be precise the means in which John Key can legally sign the TPPA (Trans Pacific Partnership Agreement), Currently if the matter was taken to court it would undoubtedly end up at the Supreme Court.

Herein lies the issue: apparently changing the flag is a constitutional issue such that by removing the symbol of the British Crown from the flag of our nation state, we take away due authority of the Crown we pay allegiance to. Let’s unpack this.

1. The DUE AUTHORITY conspiracy theory conflates and confuses the idea of the British Crown and the notion of the Crown itself.

   The authority of the Parliament in Aotearoa/New Zealand comes from it being sovereign. An interesting quirk of tradition has it that our laws need the assent of the representative of the British Crown (which in our case is the Governor General). The role of the Governor General is something many New Zealanders are eternally confused about. Almost every time a law is passed that sections of the public think is “the worse thing ever!” someone will assert “Well, the Governor General doesn’t need to assent to it.” The idea is that as laws need the assent of the Crown (here symbolised as the Queen’s representative, the Governor General), the Governor General can essentially veto laws by refusing to sign off on them.

   Except the Governor General can do no such thing. The New Zealand Parliament is sovereign, and the assent of the Governor General is automatic. In this respect, the Crown is Parliament. Historically it got its power through the British Crown, but the British Crown is now but a figurehead, constitutionally. As it stands, when we refer to the “Crown” in New Zealand law, we are not referring to the British Crown. Rather, we are referring to Parliament. Which is to say that removing the symbol of the British Crown (presumably the corner we call the “Union Jack”) from our flag really means nothing whatsoever. Changing the flag would not suddenly make Parliament any more or less sovereign than it currently is.

2. The DUE AUTHORITY conspiracy theory takes it that changing the flag changes our constitutional conventions.

   Given that Parliament is sovereign, if Parliament changes the flag, then nothing really changes (other than getting a new, and possibly not much better flag). The authority of the state has not come from the monarch of Great Britain for quite some time. As such, a change in flag will not make it easier for the government to sign the TPPA. That is because – at the moment – all Cabinet need do is agree to the text of the TPPA, and sign it for it to come into effect. For sure, Parliament will then need to pass laws which take our new international agreements into consideration, but even if we keep the current flag, the British Crown (via the Governor General) will not be stepping in to say “No!” ((Indeed, I can imagine the British Crown just shrugging her shoulders and saying “Whatev, peeps. Liz don’t worry ’bout that kind of thing. Peace out!”))

Let it not be said that I am unsympathetic to worries about how the TPPA is likely to be signed; I oppose the current leaked text of the TPPA (Like Prof. Jane Kelsey, I’m not entirely against free trade agreements in principle, but I am against this one in particular). I am even suspicious about the current flag referendum (after all, isn’t it convenient that a well-paid panel chose three preferred-by-the-PM – the same PM that initiated the referendum – fern designs?). However, I just don’t see there being some sinister conspiracy by the PM and his cronies to make it easier to sign the TPPA; it’s easy enough for them to sign it as it stands without the hassle of changing flags. ((Indeed, if this is a sinister conspiracy, it’s potentially a really risky one. What if people vote to keep the flag? Then what happens? Do our plucky set of conspirators then assassinate the Governor General in order to keep him from refusing assent? Do they end up introducing fluoride into the Buckingham Palace water supply in order to make the Queen docile? It seems really very risky.)) Our constitutional convention currently has it that Cabinet can sign such agreements without even having to debate them in Parliament. It’s also not the case that the Governor General could refuse assent to any legislation which enables the TPPA. As such, that little slice of the British Crown in our current flag means nothing other than a constant reminder that we are a colonised country.

And that might be reason enough to think changing the flag is a good idea. Not because being reminded that this place is colonised is a bad thing – we should spend more time thinking about colonisation and its effects – but because a new flag might well be a remedy to the salt-in-the-wounds many Māori feel when looking at that symbol of colonisation. But that’s a separate issue from the TPPA. That’s the thing; just because we’re suspicious about the TPPA and the process around the flag referendum, that does not tell us that they are in any way linked. Indeed, understanding our constitutional conventions really shows that they aren’t.