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We Need A Proper Constitution

Written By: - Date published: 8:26 am, September 20th, 2022 - 41 comments
Categories: Deep stuff, democracy under attack, jacinda ardern - Tags:

She’s in the ground and it’s time.

In May last year Prime Minister Ardern was centre stage at the Harvard Commencement Address and issued a dire warning that democracies can die, public institutions can wither, and states themselves can fall.

It is astonishing that a Prime Minister who has had to use legal and martial forces by the state against its own citizens in security and in public health, seen Parliament occupied for over a month, endured our worst terror attack, and made some of its deepest reforms in three decades in health, local government and water, cannot see any reason to connect weakening democracy to ourselves and hence a need for constitutional reform.

As Prime Minister Ardern herself stated while in London for the commemoration events, she will not act about the constitution unless and until there is a compelling reason to do so:

The only people who ever ask me about it are the media.”

This is a prime minister who simply will not act unless there is a strong and pressing will of the people to do so. That is her pattern.

So let’s go to  Ardern’s own words from that Harvard address, and turn that same to ourselves. When complaining about the corrosion of public discourse through social media, she said:

It ignores the fact that the foundation of a strong democracy includes trust in institutions experts, and government – and that this can be built up over decades but torn down in mere years.”

That’s just social media and its impact upon our Muslim community as a very good reason for constitutional reform that she herself has admitted.

In just one Parliamentary term we have seen, without specific electoral mandate, our democratic rights and input removed or deeply weakened by this government in water management, school boards, health, tertiary training, local government,  and independent oversight of children in need of protection. Ardern has stated her case that democracies can die, but that applies in New Zealand and from the left as much as anyone else.

Then there’s COVID19. Minister Parker has set out clearly what the legal and constitutional impact of COVID-19 has been. I have not been more chilled by the state than when I was stopped at Meremere by both the Police and the NZDF to determine whether I could drive out of Auckland for work, handing over three sets of approvals, while 99% of other citizens and residents were confined by force to their homes. Minister Parker could see the constitutional ramifications, even before they started re-nationalisation.

That’s them in their own words.

Why constitutional reform now?

Timing. The Queen is dead and what will replace her will be far weaker in its importance to us. The World War 2 generation is 95% dead. 90% of historic Treaty settlements are done. The Bicentennary is only 18 years away.

Then there’s politics. Mixed Member Proportional Representation has dampened ideological extremism and delivered greater Parliamentary diversity. But we’re not safer, nor stronger, nor clearer about where we are going for having it as a set of mechanisms.

Then there’s necessity. In a term or so all historic Treaty claims will be done. In 2048 the Antarctic Treaty will expire. The New Zealand Realm countries Tokelau, Niue and Cook Islands are going to get really important in territorial contests over resource. The relationship of the state to Maori is changing fast and often too fast. Then there’s deep institutional failure: the Royal Commission into state care, the security and intelligence failures from the Christchurch Massacre, and across the justice system continued instances of individuals unable to stop being crushed.

What could be in scope?

In no particular order.

  • Relationship of New Zealand to the United Kingdom.
  • The Canberra Pact of 1944 to come to the defence aid of Australia.
  • The role of the branches of government including the judiciary, armed forces, and NZ Police, including who they answer to and how operationally separate they are.
  • The role of the  Treaty of Waitangi and going through each of the provisions including right of the state to form and transfer property title, protection of rights to water and native lands, and all the rest.
  • Broad scope of regional and local government to the state. Coming out of that will be property rights, enforcement of contract.
  • Any lands or asset classes to be entrenched in Parliament for example National Parks and Marine Reserves.
  • Deep sea territorial reach.
  • What references to Australia.
  • Whether the Bill of Rights Act should be entrenched by a super-majority.
  • Rights of citizens and their defence, for example the right to detain, search, seize property, to jail, rights perhaps of compensation.
  • What if any references to the United Nations Declaration on Human Rights.

Then you might get to who runs the show. Purposes of the Governor-General, or if we decide to remove the sovereign what if any major changes for a replacement. If they remain largely ceremonial powers, not much changes. If an active President (insert te reo equivalent if you like), a lot changes: to whom do the core branches of government answer and how including judiciary and powers of the Supreme Court, NZDF, NZ Police, and role of Prime Minister. Elected or appointed by Parliament, full can of worms.

Mechanisms to amend the Constitution.

Maybe consider direct Parliamentary representation for Realm states. Ask the regional representation question. Ask the broad question of whether we are over-governened for our size or under-governed for our diversity.

Use useful precedents like the constitutional reforms of Singapore, Denmark, Netherlands, Fiji, Australia, Jamaica, France, and Canada.

Out of scope could be annoying distractions like changing the flag, the national anthem, or the country’s name. Don’t open the box called Australia. Don’t specify any electoral system. Maybe don’t get tangled in an Upper House discussion. Give people enough to get excited about but don’t expect catharsis, cathexis, or any examination involving masks or rubber gloves.

Keep it tidy. Don’t do a Chile and jam every progressive idea you can think of in it, and then see it burn like the Hindenburg.

Aim to get the legible basics on one side of a business card.

Timing

Aim for a Big Reveal in 2036, then down the runway preparing for the Bicentennary in 2040.

Working backwards:

2036-9                Bicentennary plans, mandate and outcomes

2033-6                Election of new entity heads, re-forming Parliament

2029-32              Engagement, legislation, process design and regulation

2023-26              Cross-Party agreement on scope, timing, and purpose

We should allow a gradual process to bed all this down. Depends on public appetite and of course on events.

It would be a job worth doing, clearly not within the appetite of this Prime Minister. But it’s well time to talk about it.

41 comments on “We Need A Proper Constitution ”

  1. Sanctuary 1

    Everyone wants a constitution, as long as it is a constitution that suits them…

    • Hunter Thompson II 1.1

      That's it right there – it surely is question-begging to assert we need a "proper constitution". What is meant by "proper"?

      But whatever constitution we get, the lawyers will do very nicely out of it, you can bet the house on that.

      • solkta 1.1.1

        I think by proper he means an actual constitution document. We have constitutional law but it is splattered around in a number of different pieces of legislation.

  2. Blazer 2

    It's a big project and a commendable one.

    When both National and Labour favour the status quo….who would have the determination,the fortitude to take it on?

    Maybe when the newer ,younger voters rebel against the 'open economy' we run and decide NZ's destiny should be more than a huge retirement home and profit centre for overseas companies,change may come ..about.

  3. Descendant Of Smith 3

    "while 99% of other citizens and residents were confined by force to their homes. "

    This bullshit doesn't help your case. It would be far more accurate to say 99% of us understood the need for health measures and voluntarily stayed at home but also saw the need for the state to intervene for the 1% that wanted to be dicks about it.

    Now I don't necessarily think the percentages were 99% and 1% – they are your pieces of nonsense but I'm sure my statement is far more accurate than yours.

    Was free as a bird to go to the supermarket when I needed to for instance and did so.

    • Drowsy M. Kram 3.1

      Was free as a bird to go to the supermarket when I needed to for instance and did so.

      Or go for a daily walk on car-free roads, surveying bears and other exotics – great times.

      • Descendant Of Smith 3.1.1

        Yep cause most people knew it made sense to stay home and not circulate. The end result was much fewer deaths than nearly every other country so the people were right.

        Nor was the approach a product pulled out of thin air. Pandemic planning had been going on for years under both National and Labour coalition governments and I'd say 90% of what was implemented was in those planning documents.

        Nobody wanted a pandemic but when it came New Zealander's responded well. That some people didn't like it and for some it was hard was always going to be the case.

        I look at my mate in the US in a wheelchair in an anti-vax state, anti-mask state who last I spoke to him hadn't been outside his house for over two years.

        Some of the alternative options weren't pretty either just different people affected and in different ways.

      • Sabine 3.1.2

        So as long it is within five kms of your home, enforced by police stopping and checking drivers as to their home addresses as it was enforced in lovely Rotorua, which ment that the redwood forest was literally a place only those living near by could go.

    • mikesh 3.2

      Perhaps, though, the decision should have been the governor general's rather than the PM's. as I understand it, it is GG's prerogative to declare a state of emergency, but usually on the advice of the PM.

      • Hanswurst 3.2.1

        You'd actually, seriously prefer decisions on something of that nature to rest in the hands of an unelected dignitary, rather than those of an elected government? I don't think I'll ever understand that sentiment.

  4. Stuart Munro 4

    You don't think a constitution might be a can of worms? A perceived pork barrel for minority interests like NZinc, and the usual suspects to fight for the champion's portion while ordinary New Zealanders look on aghast?

    Or for de Tocqueville's oligarchic lawyers (yes, you Palmer) to engineer something for their benefit with little or no relevance or value to the public at large?

    Elizabeth is barely even cold, and Charles's indiscretions thus far seem to go no further than scolding a servant who didn't check the pen for a key state occasion. There are many wrongs that can be laid at the door of the British monarchy, but largely speaking not by us.

    Let us see a few drafts before setting an end point on the process – and for God's sake, let the document be a popular one, not yet another wretchedly worthless technocratic imposition.

    • lprent 4.1

      and the usual suspects to fight for the champion's portion while ordinary New Zealanders look on aghast?

      Like the rort called the Taxpayers 'union'.

      • Stuart Munro 4.1.1

        NZ has an abundance of entitled groups looking for more than their share. A popular constitution is built on and stands and falls on, an equal franchise.

        The Taxevader's Union are nothing more than a subconscious declaration that they desperately want to be audited by IRD. NZ can afford to humour that craving.

        Issues like He Puapua, expect what might be some kind of affirmative action. But any such policy must survive a review under whatever the final constitution might turn out to be. And that is one of the more legitimate causes the constitution must navigate.

        Things like Trans advocacy will not fare well if the public have any meaningful input.

        With this in mind, a Palmerian solution is probably as far as government would be prepared to go – ineffectual, with no popular support – a game not worth the candle, and electorally costly.

    • Anker 4.2

      100% Stuart Munro

  5. Anker 5
    • We definitely need a discussion about the way forward for Aotearoa/New Zealand.

    He puapua declares constitutional transformation. This needs to be put on the table and clearer stated what is intended.

    I note Jacinda Ardern casually mentioned in an interview with the BBC that NZ will become a republic (this was before the Queens funeral I might add). I didn’t realize that that debate had been had.

    The UK and the monarchy are my whakapapa. Pretty pissed off that it can be so casually dismissed.

    The points you outline that need addressing eg, the relationship with the UK are bang on.

    I would also add if it is not there already our right to free speech, which is significantly eroded and will become more so if hate speech laws are passed.

    • Jack 5.1

      I too was very surprised with the PMs casual comment in a BBC interview Anker. There was an inevitability about it with zero discussion.

      Iwi views on what happens to the 1840 contract between Iwi and the Crown, when the Crown is removed would be interesting. Does it get torn up given the removal of one party to that contract?

      • solkta 5.1.1

        The Treaty has already transferred from the British Crown to the New Zealand Crown. When the New Zealand Crown transforms itself the Treaty will still be there, it is the founding document of this country.

        • Anker 5.1.1.1

          Who is the NZ Crown? Geniune question. I thought the monarchy, Charles 3 now was the King of NZ, so therefore if we get rid of the British Monarchy, we have no crown. I am not sure about this, just wondering.

          • solkta 5.1.1.1.1

            When NZ became independent from Britain "The Crown" became the New Zealand Crown with the British monarch as the head of state.

            Transcript

            Rt Hon Sir Geoffrey Palmer: One of the complexities of New Zealand relates to the expression, the Crown, well the Crown is a very complicated entitiy, the Crown wears many hats, its not just the crown on the head of the Queen, it is in a sense the government and how do you distinguish the crown from the government. Where does one start and the other end.

            Rt Hon Dame Sian Elias: Well the Crown is the successor of the British Crown and the Queen Victoria, was of course a party to the treaty. So the Crown, the executive in New Zealand if you like is the inheritor of the obligations that the Queen took on in 1840.

            Rt Hon Sir Geoffrey Palmer: The Crown is also the the principal part of the justice system, the judges are Her Majestys judges, the Queen is the fountainhead of justice. Ah, the public service operates in the name of the Crown and so the Crown is the Head of State as well.

            Rt Hon Dame Sian Elias: When I use the Crown, I'm really talking about the executive government but, that, that's perhaps a technical use and maybe people use the Crown to mean the state, because that's also possible. In which case it would embrace all branches of government, legislative, executive and judicial.

            Rt Hon Sir Geoffrey Palmer: So you see, these ideas merge together, they become quite complicated and people don’t understand them. It's, it's not surprising.

            https://natlib.govt.nz/he-tohu/korero/what-is-the-crown

            • solkta 5.1.1.1.1.1

              So when we get rid of the King the New Zealand Crown will still exist, but we will probably call it something else.

              • Anker

                Cheers,

                Seems very unclear to me.

                • Hanswurst

                  Why should we call it anything else? We talk about a head of state, but we aren't referring to a giant head; we speak of the houses of parliament, but we're not referring to where the MPs cook and sleep; we talk of cupboards, but we don't mean boards that we hang cups on; we refer to Charles III as 'King', despite his being a mere figurehead, who is, in all practical senses, powerless; is there really any advantage to adopting a more prosaic term for something that is in any case probably too complex to be grasped by the precious few who are so thoroughly literally minded as to be thrown by the use of the word 'crown' for something other than an actual crown or monarch?

                  [typo fixed in user name]

    • SPC 5.2

      She said she expected a republic within her lifetime.

      This leaves two scenarios

      1. a bicentennial republic or King William choice.
      2. she outlives King William.
      • lprent 5.2.1

        she outlives King William.

        Demographically likely.

        • Phil 5.2.1.1

          But for all of the genetic faults of royal inbreeding, the British ones do have a habit of living for fucking ages. William's great grandmother cracked 100 and famously got a telegram from her daughter. Both his paternal grandparents made it comfortably into their 90's. Oddly, Diana's parents both died relatively young (in their 60's).

          • lprent 5.2.1.1.1

            We're talking local XX vs in-bred XY here. Have a look at death rates of the male line. Their imported males usually lasted longer than the Windsors males.

  6. mikesh 6

    I think we should give some thought to the question of crown prerogatives. For example, it is the prerogative of the crown to appoint judges, but Donald Trump (though of course he is not part of the British system) appointed judges alleged to have been opposed to Roe v Wade, to the US supreme court. When appointments are made in this country I understand the crown is required to accept the advice of the PM. Is this an entirely satisfactory situation, or should the king, or GG, be able to make independent appointments?

    The crown also has a prerogative in the printing of of banknotes and the minting of coins. This was sensible since in these cases the authority of the crown acted as a guarantee of their acceptability. These days however demand deposits with the trading banks are also considered a form of money. Should there also be restrictions on the banks' creation of money by means of a simple bookkeeping entry? And what about the "independent" Reserve Bank governor: should his or her appointment also be a crown prerogative independently arrived at?

    It is believed by some that the head of state should be an apolitical figure, so should he or she sit outside the political arena? Even the election of a president doesn’t guarantee that.

    • lprent 6.1

      When appointments are made in this country I understand the crown is required to accept the advice of the PM. Is this an entirely satisfactory situation, or should the king, or GG, be able to make independent appointments?

      Not correct and simplistic even when you look at the US judges. They do have to get past senate and a lot of vetting inside the legal profession.

      The cabinet is one of the groups that the crown uses to select their officials, and the PM is is just one member of the executive council.

      Judges are largely selected by lawyers through various means before the PM as lead minister offers their name to the crown. If the PM tried to override that, then they'd find a few teeny problems – like judges and QCs disagreeing directly to the GG or the crown.

      The military and police hierarchy are highly involved in selecting their crown appointed leadership.

      Should there also be restrictions on the banks' creation of money by means of a simple bookkeeping entry?

      Perhaps you should read up on the role of Reserve Bank. Who do you think issues all money directly or indirectly. And if you think that politicians make that decision without getting a general agreement before the name goes before the crown, then you're sorely mistaken.

      All of the things that you're looking at are conventions – they are about as real as the convention that the crown accepts the PM's advice.

      It is believed by some that the head of state should be an apolitical figure, so should he or she sit outside the political arena? Even the election of a president doesn’t guarantee that.

      Having a monarchy and crown detached from the day to day running of their government, but still responsible for the powers that they let others to run directly , is not apolitical? Having the local GG appointed with widespread support from parliament, courts, military, police, maori, and dozens of other interest groups isn't apolitical enough for you? Why exactly?

      You really need to do some reading of history and to exercise your brain a bit…

      The system we have was hammered out over several revolutions and massive strife between parliaments and the crown. It was imposed on NZ, modified several times, and seems capable of all of the required adjustments to issues we have used on it so far. I can't see a reason to do more than tinker with it.

      • RedLogix 6.1.1

        Exactly. It is a stable and yet responsive system when necessary.

        Equally important in my eyes it decouples the symbolic figure-head of the state from the political leadership which when you consider how overseas major power republics are so very prone to personality cult autocracy – Putin, Xi and Trump being very proximate examples – is a very good thing.

        The younger version of me was all for getting rid of an ‘irrelevant monarchy’, but the older version has seen too many fashionable political changes that had unintended consequences.

        • lprent 6.1.1.1

          I have come to prefer our current state of being a republic in all but name.

          Mostly because reading the history of actual constitutional republics indicates that they are inherently unstable, subject to periods of ridiculous instability, and inherently subject to authoritarian rule.

          Currently the longest lasting republic of a substantial size is Switzerland, which became a republic in 1648 – as part of a international treaty that still holds today. Arguably the treaty to stop Swiss mercenaries being used as they had been in the 30 years and 80 years religious wars has provided the sustaining basis of their republics continued stability.

          The next oldest is the US, which has been showing its age recently with a rigid constitution allowing some authoritarian tendencies (think the Gulf of Tonkin incident or the unjustified 2003 invasion of Iraq) in a burgeoning of active authoritarian executive. Plus its eternal deadlocks in congress that are steadily forcing government by presidential decree.

          Next up is a Paraguay – that has had one of the most consistent records of being a republic in name only since before the Paraguayan war of 1864-1870. Essentially it has been a de facto dictatorship for most of its republican existence.

          Rather similar to all of its compatriots of Argentina, Chile, Venezuela, Columbia, and the other republics spawned out of the dissolution of the Spanish empire in the 19th century.

          Basically having a stable republican government that doesn't fall into periodic de facto dictatorships for long periods appears to be the rule rather than the exception.

          This is a clear trend that goes all the way back to the Greek city-states and the Roman republic. It appears to be what the US is teetering on the cusp of now.

          Whereas constitutional monarchies like ours have a much better record of adaption without descent into dictatorship or revolution. It appears that shared fiction is a powerful way to avoid rigidity.

        • higherstandard 6.1.1.2

          Find it difficult to argue with any of the points that you've both made.

          Suspect it points to all of us suffering from the same age related grumpiness.

      • mikesh 6.1.2

        Having a monarchy and crown detached from the day to day running of their government, but still responsible for the powers that they let others to run directly , is not apolitical?

        I did not deny that it was. I merely questioned whether the same thing could apply to an elected president.

        I was also questioning why PM, cabinet or parliament has to be involved at all in some of these decisions.

        • lprent 6.1.2.1

          I merely questioned whether the same thing could apply to an elected president.

          Sorry – got the wrong end of the stick in that case. In theory yes.

          In practice it doesn't seem to be the case. Personally I think the issue is with term limits and impatience. You're trying to find someone who is willing to waste part of their life doing a ridiculous 'apolitical' job. It either means that you get a useless someone who is willing to do that and who you can't count on in a crisis or someone competent who gets frustrated with the role.

          Our GGs do it for a limited 5 year period, mostly from roles inside our public service system, and ultimately who aren't fully responsible for it. It has proved to allow people of high competence in a public service role on behalf of their remote boss. It is hard to see any of the recent GGs who wouldn't make their and their monarchs displeasure clear if parliament or the executive council tried to do something dodgy.

          The monarchy doesn't have term limits and is a lifetime career to which people have been trained from a early age as to being a pretty useless hod carrier with constitutional opinions – and ultimately the ability to constrain a government or parliament from poor decisions.

          Seems to work. It is really hard to find similar restraint amongst elected presidents, protectors, and other variants throughout history in republics.

          The Swiss Executive Council would probably be a better model for a what is known as semi-presidency if we had noticeable regional differences in NZ.

          I was also questioning why PM, cabinet or parliament has to be involved at all in some of these decisions.

          Absent of a revolution or the abdication of the NZ monarchy from the role.. Then the only way that this could be done is using Parliament under our current laws. We are a representative democracy without binding referendums.

          I don't think that we will get a revolution or our monarch abdicating or binding referendums any time soon.

  7. This is not a prime problem for NZ and New Zealanders.

    Environmental problems are! Rising sea levels/sinking coast lines/wild weather.

    Meeting and understanding Maori needs and wishes.

    Providing enough shelter food and work in a sustainable way.

    We need to be pushing for regenerative farming.

    We need to be developing ways to control and use our waste.

    We need to rebuild our supply lines., and look at food miles.

    We need to monitor "Let's make NZ ungovernable" proponents.

    There is no constitutional crisis in NZ, but there are enough concerns as it is imo

    By your own admission the PM listens to the people.

    devil Bloody Hurrah!! Who did you have in mind if not the people?…?

  8. Kat 8

    Timing. The Queen is dead and what will replace her will be far weaker in its importance to us……………"

    Events. That is what replaces the Queen and the PM at this time is wise to hold her counsel and keep the country's powder dry. The PM certainly said NZ will ultimately become a republic over time. This is the continuation and evolution of events that Queen Elizabeth 11 herself oversaw as Monarch in her subtle and deft handling of Deimperialization during the past seventy years.

  9. lprent 9

    I can't see any current or obvious compelling reason to change. You said it yourself…

    It is astonishing that a Prime Minister who has had to use legal and martial forces by the state against its own citizens in security and in public health, seen Parliament occupied for over a month, endured our worst terror attack, and made some of its deepest reforms in three decades in health, local government and water, cannot see any reason to connect weakening democracy to ourselves and hence a need for constitutional reform.

    Those powers were all there already to handle them in whatever manner was required. The Director General of health has the go to power on pandemics – that was set in the 1920s and updated twice since then. The police and military have pretty clear instructions in legislation and regulation on how to support. Same with everything else you mention.

    The basic problem is that you seem to be framing it as political entertainment rather than framing a need for it. Geoffery Palmer's piece was the same. It concentrated on that we could do it rather than why we would want to do it.

    Palmer also governed (in inverse) why the various treaties simply don’t matter either way. Apart from the Treaty Of Waitangi, the others can be flicked over easily.But also non eof them provide a reason why we need to change.

    Sounds like fashionista thinking to me.

    • Phil 9.1

      …concentrated on that we could do it rather than why we would want to do it… none of them provide a reason why we need to change.

      I think you could reasonably look to the bloodshed that America, India, and countless other nations have gone through over hundreds of years to rid themselves of a foreign ruler as a substantial reason why. We currently have an opportunity to do so with a considered, collaborative, process rather than one driven by hurried gunfire. By historical standards that's a rare opportunity.

      • lprent 9.1.1

        Probably pay to have a look at my comment further up where I criticise the historical inherent inability of republics to provide stable, responsive, adaptive, and democratic government.

        I wasn't looking at other countries. I was looking at why this nation would want to change its constitutional base.

        You drifted off into a silly fashionista argument about other countries which had all of the relevance of a Mike Hosking PR line about why we should change a flag. Which so far is all that this discussion has thrown up.

        The mere fact that we have an ability to change a flag or a constitutional basis of a state does not constitute a reason to do it.

        Sure it may please constitutional lawyers with providing a avenue of work, or placate someone with an Irish historical meme. But none of those things provide a reason for me to do it.

        The total interference in my life and my nations life back to a grandparents of being a constitutional monarchy has been an occasional traffic jam, and being forced as a kid to go to Eden park. All of the rest has been from our local government.

        So far I haven’t seen a actual reason offered to make the effort to change that I can’t attribute to people blindly following a fashion.

  10. Maurice 10

    The radical journalist Thomas Wooler mentioned constitutions in Black Dwarf back in January 1817:

    "States must either proceed, or retrograde. ……….

    The people ought to have remembered that they were the guardians of the constitution. Instead of that the simpletons expected protection from the constitution; which is in fact nothing but the recorded merits of our ancestors."

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