Graham Kennedy: Royal Succession Bill — First ReadingText is incorporated into the Bound VolumeGraham Kennedy: Royal Succession Bill — First Reading[Sitting date: 02 July 2013. Volume:691;Page:11450. Text is incorporated into the Bound Volume.]Dr KENNEDY GRAHAM (Green):The bill before us the Royal Succession Bill proposes three changes to the rules of royal succession for the New Zealand monarchy. This emerges from a political agreement at head of Government level at the Commonwealth Heads of Government Meeting 2 years ago. First it would abolish primogeniture—the precedence of younger brothers over elder sisters—thereby ensuring that succession is not dependent on a person’s gender. Second it would allow individuals within the royal line of succession to marry a Roman Catholic. Third it would restrict the requirement of royal consent for marriage to just the first six individuals in line to the throne.The bill raises issues of a deep constitutional nature and these are of course placed in a historical context. There is often a tendency to justify any shortcomings in universal human rights in the context of historical anomalies. There was a case not so long ago where the UK Supreme Court argued in asserting that particular electoral laws pertaining to a particular bailiwick were consistent with the European Convention on Human Rights with the quote that laws even anomalous laws have to be considered “in the round in light of historical and political factors relevant to” a particular place. Although if one were starting from scratch there could be few who would think that the law might be satisfactory it did not follow that human rights would be breached. So you have issues that are not simple and inevitably will occasion a penetrating discussion not only in this House but in the wider society. People can hold strong views on these issues.There are various points to consider both constitutional and political. First there is the right of primogeniture. There can be no opposition surely to abolishing the right of primogeniture. The only point to note is one of astonishment that it has taken so long to bring the British and Commonwealth law up to speed with universal human rights which reflect the Western values that we all delight in trumpeting. It was Scott Simpson just a moment ago who spoke about an elite group of nations moving to legislate. With great respect that is absolute rubbish. Our 16 jurisdictions are a group of nations; we are not an elite group of nations. There is no such thing as an elite group of nations within the universal context of human rights. He also was animated enough to say that we were bringing our law on this matter up to speed with universal human rights—not totally correct. We are inching along in that respect to bring it up to speed with universal human rights but we are stopping short of it.The second issue is the freedom of royal marriage. Allowing the British and Commonwealth monarch to marry a Roman Catholic is fine and indeed necessary. But as I understand it although the Act of Settlement states that a monarch may not marry a Roman Catholic it also states that the monarch “shall join in communion with theChurch of England”. That is the monarch must be an Anglican and must perform the duty of Defender of the Faith at least in England and Wales though not in Scotland or Northern Ireland. So the exclusion applies to all other faiths including any declaration of non-faith. As such it is an infringement of the UN International Covenant on Civil and Political Rights which would accord the right of any human to have freedom of religion and occupy any position notwithstanding.Crown Law’s view is that the bill is consistent with the New Zealand Bill of Rights Act because “The rules that govern succession [in a shared hereditary monarchy] are historically and politically complex. They are inapt for detailed Bill of Rights Act scrutiny.” This seems with respect to be a weak argument. The current succession laws of the British monarchy including these proposed reforms undeniably infringe upon universal human rights even in the context of this draft bill. There is a strong argument for republicanism although let me emphasise that republicanism is not Green Party policy.The third change is restricting the requirement of royal consent. The requirement to seek consent from the monarch by the first six in line to the throne is also such an infringement.It is a minor point in terms of New Zealand domestic debate but it might be queried whether the New Zealand legislation will or will not apply to the Cook Islands Niue and even the Ross Dependency. Presumably the British legislation will “directly pass through” the New Zealand Governor-General acting in right in a different capacity in those jurisdictions. We would be interested to get an opinion from the Government on this point. The shared monarchy makes it required that all 15 realms outside the United Kingdom pass identical legislation. Agreement to that effect was given including by New Zealand at the Commonwealth Heads of Government Meeting in 2011. This requirement for collective legislation by 16 jurisdictions effectively circumscribes New Zealand’s freedom of constitutionality—another argument for republicanism.These constitutional considerations effectively rest on a set of broader considerations. This is probably another case of the New Zealand public needing to judge whether a reform goes far enough. There will be those who think it does and those who think it does not. For its part the Green Party regards the draft legislation as being useful in so far as it rectifies some serious shortcomings in the New Zealand constitutional system. But we also regard the bill as not going as far with the reforms as it should.In so far as the current New Zealand constitutional system precludes a Roman Catholic from being head of State—or a Hindu or a Muslim—then it breaches the Universal Declaration of Human Rights. Whether that applies to the Governor-General representing the head of State is another issue. It may have been the case that previous Governors-General converted to Roman Catholicism and that would be an interesting point of fact.Does the bill go sufficiently far with reform as to warrant our support? Our answer is no yet we do not wish to oppose the bill since it does effect some positive change. The Green Party will therefore abstain on the bill. If it were a normal piece of domestic legislation we would work to strengthen its provisions and advance some amendments in the Committee of the whole House. But this is not a normal bill. It is a piece of the constitution that addresses the monarchy and that monarchy is shared across 16 sovereign jurisdictions. As such the rules have to be identical; you could not have rules for New Zealand choosing a shared monarch and different rules for Britain or Australia. Our rules no doubt would be regarded as null and void to the extent that they differed from those of the UK.It is a supreme irony that 16 so-called sovereign nation States are unable to make their separate sovereign determination of the rules choosing their own head of State. I note the intriguing judgment in a Canadian case that “One cannot accept the monarch but reject the legitimacy or legality of the rules by which this monarch is selected.”—true up to a point but this bill before us is altering the rules and thereby rejecting or casting out the previous rules. So the matter is relative though not so relative as to enable freedom of legislation over one’s own head of State. The Minister of Justice said just a moment ago that the rules have to be consistent across the realms and that a bill is proceeding through the UK Parliament but that this does not of course work for us; we must do our own legislation. So be it. We shall abstain on the bill while making it clear as appropriate what our views are on certain of its aspects.