A Constitution

Written By: - Date published: 11:22 am, September 26th, 2016 - 31 comments
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Absolute h/t to Ovid who linked to proposals for a written Consitution for Sir Geoffrey Palmer this morning in Open Mike.

The SpinOff

1. New Zealand should become a republic.

2. The Head of State should reflect New Zealand’s national 
identity, culture and heritage, and should be appointed for a term of five years on a free vote in Parliament, safeguarding the independence and neutrality of the position. This is quite different form the way the Governor-General is appointed at present.

3.The duties and functions of the Head of State, largely mirroring those carried out by the Governor General now, should be set out clearly in the Constitution.

4. There should be a fixed four-year parliamentary term. (Wow!)

5. Select committees should be able to make new legislative
 proposals to the House of Representatives.

6. A 75% majority in Parliament should be required for
 urgency to be taken in passing law.

7. More checks and balances, including a stronger Bill of Rights 
and making more information available before legislating.

8. An independent Speaker will be elected by the House on a personal
 conscience vote. The person should not be the Government’s nominee, as is the case at present.

9. Constitution Aotearoa more clearly sets out the structures and powers of Government and the limits on that, including the roles and function of the Prime Minister.

10, The Cabinet is limited to 20 members, with up to five other ministers outside Cabinet. The position of Under-Secretary will be abolished.

11. The House of Representatives will elect the Prime Minister. (!!!!)

12. The Prime Minister’s ancient powers of advising on proroguing or dissolving the House will be abolished.

13. The current structure of the senior courts of New Zealand continues.
Judges’ protections against removal from office and reductions to their salary continue.

14. The compulsory retirement age for judges is raised from 70 to 72.
A Judicial Appointments Commission to oversee the appointment and promotion of judges is established.

15. The courts are empowered to declare Acts of Parliament invalid to the extent that they are inconsistent with the Constitution. But, importantly, the Courts won’t have the final word. First, amendments to the Constitution are allowed either by 75% of MPs or by public referendum. This follows the established tradition in New Zealand dating back to 1956 entrenching certain provisions of the Electoral Act against change by a simple majority in the House of Representatives. Second, we propose that 75% of MPs can override a particular court decision on the application of the Constitution.

16. The Treaty of Waitangi is incorporated within Constitution Aotearoa to make its status clear and certain.

17. The human rights protected by the Bill of Rights is broadened to more closely reflect the range of rights actually recognised across our legal system and in international human rights treaties. The ability for the institutions of the State to place reasonable limits on those rights where they can be demonstrably justified, as the current Bill of Rights Act allows, is retained.

18. New rights are created including:
Against slavery and servitude
Security of the person and right to privacy
Right not be arbitrarily deprived of property
Right not to be discriminated against on the grounds of gender
Right to a free primary and secondary education
Right to an environment not harmful to health and to protect the interests of future generations.
Anyone who claims that their rights have been unjustifiably infringed upon can approach the courts for a determination.
Among efforts to strengthen checks and balances are:

19. Setting up a new independent Information Authority to restructure the administration of official information and improve transparency.

20. Including certain principles in the Constitution to reinvigorate the public service and protect its values.

21. Reinforcing the constitutional significance of the offices of the Attorney-General and Solicitor-General.

22. A revised approach to, and more transparent oversight of, the intelligence agencies.

23. Constitutional protection for local government.

24. No international agreement shall be binding on the State unless a Cabinet decision on it has been approved by a majority of the House of Representatives.

25. Any declaration of war must be approved by a majority of the House of Representatives.

26. There will be no significant contribution of forces to, or for any purpose of, the United Nations or other international arrangements without the prior approval of the House of Representatives. The legal grounds for participation in all such activities shall be presented to the Parliament in an opinion of the Attorney-General.

To ensure the Constitution remains current and effective, a Constitutional Commission should sit every 10 years to review the Constitution. Otherwise it will easily fall out of line with the existing realities and aspirations of the people.

A number of very strong, even radical proposals in here. Worth a quality discussion.

31 comments on “A Constitution”

  1. infused 1

    What’s wrong with a 4 year term? It’s good for all parties. Considering the last 6-12 months of a cycle is wasted getting ready for an election, it allows more to get done.

    • RedLogix 1.1

      Nothing wrong at all; just surprised at the boldness of the four year fixed term.

      • Puckish Rogue 1.1.1

        Yeah that seems…interesting

      • Draco T Bastard 1.1.2

        I keep thinking about this concept of a ‘fixed term’ government and the idea that a single party rules for that term with support for policies then being dynamic. If we take this to it’s logical conclusion we could get rid of the governing party and just have parliament rule.

        • You_Fool 1.1.2.1

          You would still need an executive to do the actual running of the place, ministers and such like. However, given that it was already proposed that the house elect the PM and the Speaker. that could be continued to the whole of the executive so that Ministers were not appointed by voted in – you could even raise the threshold from a majority to 60% or even 75% to make the shenanigans even more enjoyable and avoiding it just being the same as it is now.

          I have also wondered if you could have a system with an elected Head of State, who was head of the executive branch of government who chose his ministers and other executive officers from the elected parliament, but they lost their mp voting rights. Add an interesting dynamic, as you would pick the best suited, but also look to spread around the political parties so not to remove any one party’s influence.

          i.e. John Key is voted El Presidante, so Nat is now down 1 seat in parliament, so he won’t pick too many national mp’s to be ministers as that would further remove nationals seats and Labour would effectively be in control of the house, although the executive would be unlikely to sign off and enact any law they passed.

    • One Anonymous Bloke 1.2

      The same argument applies to a three-year fixed term.

    • Pasupial 1.3

      Paying attention to the electorate is “wasted” time in your book; infused? Parliamentarians could take shorter holidays (especially over summer) if there is really so much extra work to be done.

      The; fixed term, part of that recommendation seem difficult to square with the reality of MMP coalitions.

      However, I do like recommendation 6: “75% majority in Parliament should be required for
 urgency to be taken in passing law” & 11: “The House of Representatives will elect the Prime Minister”. 24-26 are good too.

      Despite any merit this scheme may have, there is going to have to be a lot of public consultation on this one to give it any mandate. If an outgoing coalition with a bare majority were to try ram through a new constitution in the last few months of their term, that would be problematic.

    • roy cartland 1.4

      Totes – a three-year term really means a 6-year term at least, it’s not like any govo gets turfed out after one term these days. MMP will keep them playing nice – just look at the multi-headed monsters in the Danish Parliament (on “Borgen”, of course).

  2. Ad 2

    Really interesting thanks Red.

    A good interview yesterday with the authors on RNZ.

    Won’t try discussion until this evening when I have time.

  3. NZJon 3

    Looking forward to hearing Geoffrey Palmer speaking this coming Friday… 🙂

  4. One Anonymous Bloke 4

    I’d like to see a better understanding of conflict of interest, especially in regard to bringing preconceived notions into select committees. At the moment there are far too many nodding dogs.

  5. dukeofurl 5

    Its not a constitution, its a wish list

    ” A revised approach to, and more transparent oversight of, the intelligence agencies.”
    How?

    ” Constitutional protection for local government.” Its impossible to do in a paragraph or two.

    The House of Representatives will elect the Prime Minister. And that changes what ?

    Select committees should be able to make new legislative
 proposals to the House of Representatives. Thats number 5 ! A pointless exercise.
    What about the the Minister of Finances veto- so much for parliament is supreme, they cant even overide the minister.

    and silliest of all-
    Including certain principles in the Constitution to reinvigorate the public service and protect its values.
    Why cant they have a section on herding cats

  6. red-blooded 6

    We can always count of Geoffrey Palmer for thoughtful and thought-provoking proposals. Looks pretty good to me, although I’d need longer to fully digest it all.

    I think the fixed term idea is interesting, but would take quite a shift in attitude and practice. Presumably a government that lost its majority because it lost one of its supporting parties could be challenged by a new coalition that could commend a majority; the other possibility being minority government and negotiations about each piece of legislation. There’s something quite appealing about this concept.

    I also like the idea of recognising the role of local government and thinking through its relationship with central government. Under this arrangement, it would presumably be harder for central government to move in and take over, as they have in Canterbury.

    • AmaKiwi 6.1

      red-blooded

      Yes.

      “Under this arrangement, it would presumably be harder for central government to move in and take over, as they have in Canterbury.”

      . . . as they do whenever they damn well please. Auckland Super City. Nick Smith on Auckland district plan. Roads, public transport. Local conservation issues.

    • Bill 6.2

      Did a post on Fixed Terms in May of last year. It might interest you.

      Fixed Term Parliaments

      • RedLogix 6.2.1

        I must admit I missed that post Bill. I like the idea a lot as it solves several of the core problems inherent in Coalition govts.

        And hell if the Poms can manage it, what’s wrong with us?

        • dukeofurl 6.2.1.1

          It solved nothing. The UK had a maximum term of 5 years, that became the minimum. When it was up the Lib Dems were creamed by the Tories as intended in the beginning.
          Would it have made any difference to the public if the election was held at 4 years? Of course not.
          As for the other falalava, those provisions more aptly applied in Scotland , Wales and Northern Ireland.
          The Tories tried to play the Welsh election results recently when it came to a PM getting the confidence motion from the Assembly first.
          Never underestimate the politics of any situation. Take MMP , its been the way it works herebut its gamed by National to avoid defeat.
          In Scotland absurdly, it led to SNP having a majority of seats recently despite not having a majority of the party vote. Their flaw was to have the list MPS from regions but bizarrely make all the regions the same number of electorates. The SNP saw the flaw and gamed it to their advanatge.

  7. AmaKiwi 7

    Geoffrey Palmer’s proposals require an often apathetic NZ public to really think about weighty issues. Will they?

    Palmer’s timing is good. Here and worldwide there is growing disgust with government related corruption. If we don’t make democratic changes now, public discontent can lead to the election of a NZ demagogue.

    Can’t happen here in sweet little NZ? Yeah, right. Can’t happen either in the American “cradle of liberty.”

  8. Lanthanide 8

    Key’s flag referendum would’ve been better spent on a constitution referendum.

    • Draco T Bastard 8.1

      We certainly do need to discuss a written constitution and a shift to being a republic. What we can’t do is rush it nor leave it solely to the politicians.

  9. Draco T Bastard 9

    10, The Cabinet is limited to 20 members, with up to five other ministers outside Cabinet. The position of Under-Secretary will be abolished.

    I disagree with that as I happen to think that there should be one minister per ministry so that they can more easily keep their mind on the one job rather than being overwhelmed by excessive responsibilities.

    In fact, why do we even have a Cabinet?

    There’s no legal basis for it. It’s only there by convention and this government’s been running roughshod all over that convention.

  10. Ad 10

    A few random points.

    – With both the Head of State and the Speaker are voted on by Parliament, the two of them are going to become pretty close. The Speaker in a sense would work for the Head of State. I think that would be a useful innovation for checks and balances.

    – A 75% majority to get Urgency measures would require massive parliamentary discipline from the Government. I can’t see it working in MMP; too hard to whip general business and leave.

    – I can’t see the difference in reality between the whole of parliament electing the Prime Minister, and what we have now. The coalition majority agrees the Cabinet positions including the Prime Minister.

    – They mention the Bill of RIghts, but they forget to entrench them. I think they really need to be. Point 18 on new rights isn’t going to work. I’d rather see a focus on land ownership and national parks.

    – Points 25 and 26 on declaring war and sending troops are just ridiculously isolationist.

    – I’d like to see the Head of State manage the information ombudsman. As well as manage the Speaker. If we’re going to give them a refreshed constitutional role, let them do some actual work. The Head of State should also look after appeals against the Police and against the security services. Be the Big Stick.

    I like the attempt at stronger checks and balances.
    I like that they’ve really thought a lot through.
    I’m definitely going to get the book and read the whole thing.

    Good mental exercise there.

    • RedLogix 10.1

      Same here Ad; it makes for some solid, interesting political homework instead of all the usual squabbling and noise. Definitely our current system needs a refresh.

      I’m interested also to see their approach on the ToW.

  11. Incognito 11

    27. Replace MMP with truly Proportional Representation and get rid of electorate boundaries altogether. With 120 seats in Parliament the electoral threshold should be 0.83% at the national level.

    Many excellent points raised by Sir Geoffrey Palmer that warrant further analysis and (public) debate.

    • Lanthanide 11.1

      So people won’t have a “local electorate MP” to go to any more?

      Local representation is deemed to be important. That’s why electorates exist.

      • Draco T Bastard 11.1.1

        Interestingly enough, most list MPs adopt an electorate. We could formalise that.

        Have it so that all MPs are voted in on the list and then have them allocated an electorate.

        Of course, the big problem with having all list MPs is that we would lose the option of having independent electorate MPs. But, then, when was the last time we had an independent electorate MP that was actually voted in as an independent?

      • Incognito 11.1.2

        Sure, local representation is important but not essential; many other countries do without.

        My thesis is that local representation my actually hinder representation of scattered ‘minorities’ and fringe groups, for example.

        I’ve never liked the hybrid MMP system and still don’t understand why it was modelled on the German system.

        • Draco T Bastard 11.1.2.1

          Yes, I’ve been getting less and less enthusiastic about having electorate MPs. If someone needs to talk about local issues then they should be talking to their local councillors.

          If it’s big enough to be a national issue then they should be able to talk to any MP and the Minister who’s responsible.

  12. Draco T Bastard 12

    Seems that there’s a website about NZ having a constitution:

    A Constitution for Aotearoa New Zealand

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