Democratic Guardrails: Is NZ Safe From Authoritarianism?

Sunday, 27 April 2025, 9:09 pm
Article: RNZ

Phil Smith, 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."

• Our MMP voting system explained

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."

• A fateful moment looms as Trump's team seeks to bypass the judiciary

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."

* RNZ's The House, with insights into Parliament, legislation and issues, is made with funding from Parliament's Office of the Clerk. Enjoy our articles or podcast at RNZ.

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