• Covering All Bases

    It is one of the peculiarities of a Westminster-style constitution that the power to conclude international treaties rests exclusively with the executive – in our case, with the Cabinet.  The Trans Pacific Partnership (TPP) is no exception. While a National Interest Analysis will be prepared by the Ministry of Foreign Affairs and Trade, and will most likely be considered by a Select Committee, our elected representatives can – if the government wishes – be totally ignored.

    This constitutes not only a potentially damaging side-lining of parliament but also a denial of democracy itself; it continues a process that has been throughout characterised by secrecy and the contemptuous refusal to take any account of public opinion.

    Yet it is clear that the TPP is not just a run-of-the-mill trade agreement but a major concession of the powers of self-government to large, international (mainly US) corporations. The treaty provides those corporations with the power to over-ride elected governments and to re-write the laws of this country in their own interests. There can be no set of issues that should more importantly require the consent of parliament and people.

    It is not as though these worrying downsides are to be offset by major trade gains. Our negotiators, having boasted of the improved access we would have for our dairy products, stood by impotently when the crunch came and our interests were almost totally ignored by the big boys. As Joseph Stiglitz, the Nobel Prize-winning economist, pointed out in these pages, the TPP is just about the worst “trade agreement” that can be imagined.

    It is little wonder then that those who have taken the trouble to understand the issues and who are concerned at their implications should have looked for other aspects of our constitution that might come to their aid and ensure that the public does not sleep-walk into giving up its powers of self-government for no good reason.

    A petition has accordingly been drawn up and signatures invited; the petition is to be presented, not to parliament, since that would be pointless, but to the Governor General. On taking his oath of office, Sir Jerry Mateparae undertook to protect the proper government of this country; the petition invites the Governor General to use his constitutional powers to do just that – to act as a constitutional guardian and to refuse assent to legislation that fails to uphold the rule of law and the principles of responsible government.

    On the face of it, the petition would seem to stand little chance of success. Governors General are normally careful to avoid becoming involved in controversial issues and will leave political questions to the government of the day. But there are precedents, in other Commonwealth countries – Canada and Australia – for Heads of State intervening in matters that were seen to be of sufficient importance.

    It is a fair bet that the organisers of the petition had no realistic expectation that Sir Jerry would respond positively; all they were hoping for, no doubt, was that he would agree at least to receive the petition and that the resultant publicity would help their cause in some small way.

    But Sir Jerry did not respond positively – indeed, he did not respond at all; he may not even be aware of the petition’s existence. The letter to him from the organisers, asking him to receive the petition, was replied to by his Official Secretary – one Gregory Baughen. Mr Baughen made it clear that he would not even ask the Governor General to receive the petition, let alone act on it.

    Who is Gregory Baughen? Until a year ago, he was a senior staff member of the Department of Prime Minister and Cabinet, and the head of the National Assessments Bureau, one of the three main intelligence organisations. He was, in other words, a senior member of the executive with special responsibility for a range of security and intelligence matters.

    It is this official who has now been transferred across to a quite different, and supposedly independent, part of our constitution. The Governor General’s office is, in principle, above politics, but it now seems to be managed by someone who is best regarded as a representative of the executive. The nature of Mr Baughen’s appointment and his refusal to allow the Governor General even to receive a petition that is arguably on a matter of national (rather than party political) significance suggests that the authorities are anxious to cover all bases, and to take no chances.

    Not content with conducting negotiations in secret, and with excluding any consideration of public opinion, the attempt has been made to close down even a scintilla of publicity that might indicate a degree of public concern. Even the public signing of the TPP in New Zealand on 4 February is being so carefully managed that we know about it only because the news was leaked in Chile.

    Democracy is necessarily at times a messy and discomfiting business. But when such care is taken to deny it, we should be truly worried.

    Bryan Gould

    13 January 2015






  1. Rob Crozier says: January 12, 2016 at 11:54 pmReply

    Great points Brian! And thank you for them.

    I’m puzzled by the rush for us to sign when it seems reasonably certain that the US Congress will be unable to get this deal through. What, if any, are the consequences/benefits to NZ if that happens?

    • Bryan Gould says: January 13, 2016 at 3:09 amReply

      Obama will still have hopes, though I agree that Congress may well reject the deal. In that case, we’ll have dodged a bullet, but the government will be able to say that, according to its lights, it did its best to demonstrate virtue.

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