NZ could begin the transition to its own democratically appointed head of state just six months after the death of the Queen, according to a legal paper

Analysis: He was a small boy who loved basketball, action movies and sushi. His grandfather was leader of North Korea. His father was leader of North Korea. And Kim Jong Un was still just a child when, according to sources in his P’yŏngyang household, his father determined he would succeed him as the next dynastic leader of North Korea. 

It sounds ludicrous, and it is. A nation’s leader should be chosen on merit.

And yet.

After the new Prince of Wales, the next in line to the New Zealand throne is a nine-year-old boy who enjoys playing tennis and electric guitar. Unlike his North Korean counterpart he may yet grow to be an informed and intuitive leader – certainly he will be schooled in those skills – but for now, Prince George of Wales is just a boy, who deserves the chance to choose his own course in life.

New Zealanders, too, deserve the opportunity to choose the course of their democracy. And an unpublished December 2020 conference paper by associate law professor Dean Knight, of Te Herenga Waka Victoria University of Wellington, sketches out how we might do that.

There are those who will argue that now, so soon after the death of Queen Elizabeth II, is not the time to talk about who should be New Zealand’s next head of state. But the same argument was made for much of the Queen’s reign; that it would be disrespectful to contemplate New Zealand’s next steps.

So when, if not now? Will we now assert that it would be disrespectful to King Charles III to debate this nation’s future, even though he has clearly and repeatedly said that the decision is ours? 

Dr Knight, who is also constitutional advisor to the New Zealand Republic group, presented the paper (which he described as a working draft) to the Comparative Constitutional Law Roundtable at the University of New South Wales.

It observes that support for a New Zealander assuming the role of head of state after the Queen’s reign has polled as high as 55 percent in recent years, but support drops as low as 20 percent when the question is asked in terms of New Zealand becoming a republic, ditching the Queen or exiting the Commonwealth.

“There still seems to be a quite strong ‘Elizabethan’ spirit with personal fondness towards New Zealand’s longest serving sovereign and disinterest in change while she continues in office,” he says, “but … the timing for transition might be indicatively specified as six months after the demise of Queen Elizabeth II.

“This timing respects the current Elizabethan public sentiment and ensures a republican transition is not awkwardly subsumed into the events and mourning associated with the death of the Sovereign.”

The move to a New Zealand head of state would need to be decided by a public referendum.

Knight argues for a “minimal” reform, in which the Governor-General assumes the role of head of state, but still serving five year terms. That is a reflection of New Zealanders’ demonstrated distaste for rapid and radical change.

In the past, politicians like former Prime Minister Sir Keith Holyoake have been appointed Governor-General. But unlike the past precedent, Knight’s model carefully moves away from politicising the new role.

“The role of Governor-General or Head of State as constitutional guardian, in their reserve powers, makes their unilateral selection by executive government inappropriate. The referee should not be chosen by the home team.”

Instead, he draws up a model in which a non-political head of state is nominated by the Prime Minister (and potentially the Leader of the Opposition) and approved by a 75 percent majority vote across Parliament. Similarly, the head of state could only be dismissed, on grounds of misconduct or incapacity, by the same majority.

Since 1967, the role of Governor-General has been held by New Zealanders, and that would be expected to continue with the head of state. “Departure from the practice would be unthinkable.”

Reflecting the determination to bring the head of state home from Britain to New Zealand, they would be sworn in by the Chief Justice – rather than the present practice of flying to London.

The rights and obligations under under te Tiriti o Waitangi have been transferred to six different monarchs, in their existing roles as King or Queen of New Zealand, and legally can transfer in the same way to the next head of sate.

But Knight acknowledges the transfer of responsibilities to a New Zealand head of state is not entirely straightforward. “The legal complication comes not with transfer per se, but the multi-faceted nature of the Crown which bears the various rights, obligations, assets and liabilities,” he says. “Some care needs to be taken to ensure that assumption of rights, obligations, assets and liabilities by the juristic entity captures only those intended to be borne by the state-like entity.”

Of the 56 Commonwealth nations, most have already adopted their own heads of state. Only 14 (New Zealand, Australia, Canada, and assorted small islands in the Caribbean and Pacific) still have the British monarch as head of state.

“The queen, in a way, allowed the whole jigsaw puzzle to hang together so long as she was there,” said Mark McKenna, a historian at the University of Sydney, speaking to the New York Times. “But I’m not sure it’ll continue to hang on.”

Barbados elected its own head of state last year, for the first time. President Sandra Mason was sworn-in at a ceremony in the capital Bridgetown that was attended by Prince Charles.

Jamaica, Saint Vincent and the Grenadines have indicated they are considering moving to their own head of state; in those countries, the British monarchy’s historic support for slavery and continued allegations of racism leaves a bitter taste. And at the weekend, the prime minister of Antigua and Barbuda said he intended to hold a republic referendum “within the next three years”.

The numbers of countries handing down leadership through dynasties, from father to son, mother to daughter, is fast diminishing. Britain and North Korea may be among the last.

Jonathan Milne was a founding member of the New Zealand Republic group, in 1994.

Newsroom Pro managing editor Jonathan Milne covers business, politics and the economy.

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