Yes, A Constitution

Written By: - Date published: 10:58 am, May 6th, 2023 - 50 comments
Categories: Deep stuff, Politics, treaty settlements, uncategorized - Tags:

We are mature enough to have our own leader. Own our own shit.

And with most major claims done we are mature enough to turn the outstanding Maori redress claims into standard appeals against the state for compensation, past and future. Like everyone else does.

2040 would be a natural time to  actually propose a new constitution for New Zealand.

One that includes:

  • An Elected head of state, powers, electoral cycle, electability
  • The relationship of our Realm states. And of Australia. Also our territorial extent from Antarctica to the equator.
  • Set out our embedded procedures around voting, transfers of power, formation and dissolution of government
  • Set out the limits and exercise and delegations of Ministerial and Prime Ministerial powers, limits and exercise and delegations of powers of elected head of state
  • Embed BORA with a 66% threshold the Parliamentary change
  • Provide a named structure and accountability of broad state functions including judiciary, Police, NZDF, etc.
  • Set out a relationship of Maori to Head of State. Maybe embed Maori seats. Maybe some other mechanism.
  • Maybe constitutionalising the national parks since it’s about 30% of the land mass

We must surely by now be capable of thinking for ourselves, leading ourselves, checking and balancing ourselves.

If we aren’t capable of thinking for ourselves and trusting our own capacity for leadership, we immediately answer the question of whether we should have an alternative to the democratic monarchy we have. Which would be no.

One may well suggest that PM John Key’s flag debate showed that no, it’s not possible to unify us. Let’s just argue about the flag another time.

And we can argue about the personalities available to be a head of state only once we agree the mechanism within the constitution.

It’s only 17  years to our bicentennary.

The debate doesn’t have to be dry.

It has to be noisy. And it has to be done.

50 comments on “Yes, A Constitution ”

  1. DS 1

    No thanks.

    I favour a republic, but not an elected Head of State, since that grants them democratic legitimacy, and puts them on collision course with the Prime Minister. Moreover, actually enumerating their powers gets you into Australia 1975 territory, where convention clashes with their theoretical powers.

    NZBORA is increasingly abused by the judiciary, and needs to go before the unelected courts can interfere with our democratic governance further. The last thing we need is for an otherwise harmless provision to be turned into a Second Amendment situation.

    Fundamentally, New Zealand operates just fine with our unwritten constitution – we haven't had a constitutional crisis since Muldoon refused to devalue in 1984. There's absolutely no pressing need to switch to a written document, not least because every little nutter will want their policy preferences enshrined in it.

    • Mike the Lefty 1.1

      You can't have a republic without an elected head of state otherwise it isn't a republic.

      New Zealand is ostensibly a constitutional monarchy, except that the "constitution" is not well defined and vaguely follows the British Westminster model.

      Geoffrey Palmer in the 1980s was keen to implement a proper written constitution but he didn't get much support.

      I agree that for the most part New Zealand has got along quite well without a well-defined written constitution but society is changing – there is now more pressure on governments to honour the Treaty of Waitangi provisions and indigenous rights and a constitution might well be very beneficial to take us forward.

      • DS 1.1.1

        A republic is just a state without a monarch. The Head of State can be appointed – no need for a election by the public.

        • Belladonna

          We do, however, tend to regard those states with appointed heads of state as dictatorships, rather than democracies…..

          • DS

            Not if the Head of State is a figurehead, like the Governor-General. Seriously, all I am suggesting is a re-title of the GG to make them the Head, rather than the Head's representative.

    • Ad 1.2

      That's just so untrue. You only have to forecast a National 35% Act 15% government to see what is at risk without such embedded protections:

      The start of the Maori seats in 1868 was a major constitutional innovation that continues today. There's a solid chance they would be eradicated under an Act-National government. Unless there were a higher protection such as being specified in a constitution.

      The entire Treaty of Waitangi historical claims was a major constitutional innovation, cementing the Treaty of Waitangi to have claimable historical force after the 1989 judgement by Lord Cooke of Thorndon. As a result Maori claims upon the Crown have gained in force and scale, and they continue through today. Fully at risk especially with an Act+National+NZFirst combination.

      The massive 1989 merger of dozens of local governments and their concentrated corporatisation and decrease in democratic force were a constitutional reform with long term corrosive effects on our democracy. Not at all hard to see remaining local government merged into regional government and remaining public assets privatised.

      The reaction by the New Zealand public to the reforms of 1984-1994 economic reforms resulted in the 1993 referendum and 1996 first MMP election. That was a big constitutional innovation. Perfectly undoable.

      The 3 Waters reforms from 2020-2023 were such an apparent constitutional threat to the democratically mandated force of local government due to the inclusion of Maori representation, that the representational part of it was killed off. Just imagine the shitshow if TPM get 10 seats total and together with the Greens require all those powers back in.

      The exercise of the coercive powers within the Public Health Act during 2020-2021 and the integration of both NZDF and NZPolice in their enforcement, were of real constitutional moment. At Meremere's checkpoint NZPolice and NZDF were armed and acting as one in the cordon. This government has got away with no review of the powers they exercised throughout – other than the Courts showing the employment commands against unvaccinated people were mostly illegal. But it should have.

      We have gone through a series of assumed constitutional accretions that, if a decent radical government comes in, we will find have no right to be retained at all. They can just be swept away by Parliamentary majority.

  2. Stuart Munro 2

    Sure we are.

    But most of the prospective leaders are not.

    • alwyn 2.1

      Very True. In King Charles we have someone who has been training for the job of Head of State for his entire life.

      When you look at prospective candidates in New Zealand you find it hard to go past our politicians. Would you really prefer any of Hipkins, Ardern, English, Key, Clark, Shipley, Bolger or Palmer to King Charles?
      If not a politician who are you going to choose? Bob Jones, Martin Hill, Rod Drury or Theresa Gattung, Perhaps Richie McCaw or Valerie Adams. How about Ruby Tui?

      Hard to see any of them as better than Charles isn't it?

      • DS 2.1.1

        "Training for the job his entire life."

        Yet somehow Charlie feels the need to write letters to politicians, to lobby for his pet causes. His job is to sit in a chair, and sign whatever the Prime Minister asks him to sign, and he can't even do that. He's an elderly inbred prat with a pseudo-fascist for a father and a pseudo-paedophile for a brother. His only redeeming feature is that despite the mountain of entitlement at work, he is not actually an evil man.

        As for your other point… former politicians very rarely get the Governor-General position (Keith Holyoake was a controversial pick back in the 1970s). The role tends to go to judicial or military figures. Quite why an appointed President (or whatever you want to call the position) would be different from that system, I haven't the foggiest.

        • Belladonna

          ATM the GG has to be proposed by the government AND deemed to be acceptable by the monarch. This unspoken, but very real, limitation has (so far) prevented overtly political nominees.

          If it were removed, I don't have any confidence that a future parliament wouldn't appoint a crony.

          Certainly there have been very …. dubious …. political appointees to High Commissioner roles by governments-of-the-day, in the past. Ones which look more like a political pay-off rather than a merited position.

          • DS

            The monarch is bound to accept the advice of the Prime Minister. They do not get a choice if the PM chooses their drinking mate as GG – the reason the PM does not do this is because it reflects badly on the PM. Again, Rob Muldoon and Keith Holyoake.

            • Belladonna

              Apologies if this comment comes through twice – the original one appears to have vanished into the ether.

              Like so much of the relationship between the Crown and parliaments – this appears to be considerably more nuanced in application. An example of the 'soft-diplomacy' which QE2 was so famous for.

              Certainly in practice, the proposed appointment is raised informally with the monarch, in order to gain his/her assent. After all, the GG will be exercising the authority of the monarch in NZ, and s/he needs to be assured they will do so with integrity.

              Since Holyoake's appointment, the prime minister is now meant to consult with the leader of the opposition during the nomination process, to avoid partisan controversy,[19] and informally seek approval for the appointment from the monarch.[16]


              The internal references are to what I would regard as reputable sources on constitutional practice.

              [Both your comments were caught by the SPAM trap because they contained too many links – Incognito]

              • Incognito

                Mod note

                • Belladonna

                  Thanks Incognito.

                  I can see how to rectify this going forward – it's the reference links that are the problem, each element links to somewhere different. I'll de-link them in the future.

                  • Incognito

                    Simply paste as plain text (Ctrl+Shift+V).

                    • Belladonna

                      Ctrl Shift V copies the link formatting as well (and is how I got into this mess); however, if I copy/paste into something like Notepad, it loses the formatting, and I can then copy/paste that text into TS.

        • Stuart Munro

          Charles is as entitled to participate in the political process as anyone else, and frankly, the ministers to whom he wrote were in general so useless they ought to have been grateful for his pointers.

          21. Right to democracy Everyone has the right to take part in the government of his country, directly or through freely chosen representatives. (UN Declaration of Human Rights).

          Largely speakly however, government ministers are so misanthropic and autocratic, not to mention tragicomically wrong, that they bitterly resent public participation, loathing it and resisting it as hysterically as they resist public scrutiny.

          • DS

            Except that Charlie's role is to accept the advice of his ministers at all times – it is utterly improper for him to express any political opinions outside that. He's not even allowed to vote (of course not. He's the King, not a Commoner. Recall the name 'House of Commons').

            Charlie does take part in the government of his country. He's exercising the role of sovereign, after all. It's just that role is is bound by convention, the rule that he must always defer to the elected representatives.

            • Stuart Munro

              You know, he can do both.

              He wasn't interfering or making improper use of his dynastic power.

              As was the case with the execrable Stuart Nash, he was not bound by his formal responsibilities at the time and in the manner he issued his opinion.

              Ministers as useless as those receiving his advice are of course furious with anyone that momentarily slows their avalanche of failure.

              But, much as they wish they could gag anyone that dares to point out their shortcomings, they don't have that power, The only shame is that they didn't take his advice – it was better and more moderate than the neoliberal follies they preferred.

            • Belladonna

              My understanding is that these letters were written while he was Prince of Wales – a position with no constitutional authority whatsoever.

              If he has continued to write to Ministers, once he became King, that would be a very different kettle of fish, indeed.

              • Stuart Munro

                True to a point.

                Much more ancient and honoured even than monarchy itself, is the value of the truth. When it is uttered, everything less is reduced to meaninglessness.

                We do not want Charles to intervene with any frequency. But if he chooses his moments and causes wisely, he may bring great credit upon himself.

      • bwaghorn 2.1.2

        King Tuheitias decndants are the obvious if you want a purely symbolic head of state,

      • Stuart Munro 2.1.3

        Sam Neill might make a decent fist of it – but is probably smart enough to decline.

    • Ad 2.2

      Trust the people: it's worked for nearly 200 years.

      Plenty of worthy and wise that would be capable.

      • Stuart Munro 2.2.1

        Were it so our politics would not be a running sore, working people would be able to house themselves as they were before The Great Betrayal, and our country would be looking forward to a new enlightenment instead of putting morons in power and waiting for AGW to finish us off.

        The worthy and wise are proving to be as chimerical as Diogenes' honest man.

  3. tWiggle 3

    Ireland's constitution can only be amended by referendum, not by the judiciary, government or parliament. Seems a sensible protection to me.

    • alwyn 3.1

      "not by the judiciary".

      It is actually very hard to amend the US Constitution. What the problem that can occur there, and would occur here, is that the Judiciary are the ones who say what the Constitution means.

      I don't want to get into a debate on abortion but when the US Supreme Court ruled in the Roe vs Wade case that is what they were doing. In Roe v. Wade, the Supreme Court decided that the right to privacy implied in the 14th Amendment protected abortion as a fundamental right.

      What the Fourth Amendment says is

      "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

      That is all but that is what the Court ruled was that this gave people the right to an abortion. Requiring that only a referendum is required to approve a change to the Constitution isn't going to affect the situation where the Judiciary is required to interpret what the Constitution means. They aren't changing the Constitution. They are telling us what it means.

      • lprent 3.1.1

        Requiring that only a referendum is required to approve a change to the Constitution isn't going to affect the situation where the Judiciary is required to interpret what the Constitution means. They aren't changing the Constitution. They are telling us what it means.

        Precisely. It is actually simpler and more democratic to leave the actual legislation in the hands of the parliament rather than trying to tie it to some rigid and amended ridiculous document from centuries past that is a rigid and inflexible as US constitution. Which reads like a pile of unclear political slogans lacking detail about what they mean.

        Citizens in NZ have been notable because they have responsibly elected representatives to change legislation with the times and the overall wishes of the population. It is laggy and imprecise. But it also means that issues are dealt with in detail and without a lot of ambiguity.

        If you look at our more ridiculous long-standing rigidity of law, the you really don't have to look far to see the ones resulting from referendums. For instance prohibition, the six-o'clock swill and compulsory military training were all referendums.

        The history of the 48 referendums in NZ, binding and non-binding, and how they have been campaigned for in NZ gives me absolutely no confidence at all in them acting as a law making system.

        Virtually every one of them and usually an ambiguous fashion has been written in a self-serving way. Has been subjected to campaigns of outright and unchecked lying by proponents and opposition, and usually wind up as being a waste of time. They invariably wind up as campaigns of fear mongering rather than any kind of rational debate.

        Overall I agree with the 1986 royal commission on electoral reform..

        The Commission stated, speaking about referenda more broadly, "In general, initiatives and referendums are blunt and crude devices…. [that] would blur the lines of accountability and responsibility of Governments".[3]

        About the only referendum that I thought was handled reasonably well was the 2 referendums in 1992 and 1993 that led to MMP. The reason for that in my opinion was because the choices and reasons for and against various options had been extensively reviewed by the 1986 royal commission, plus Jim Bolger as head of government at the time handled it extremely well.

        BTW I was on the FPP side on the first one and on MMP on the second for the same reasons both times.

        But I also thought that the process could have been handled better within our usual political processes. ie talking about citizen initiated referendums..

        During 2009, there was additional criticism from prominent New Zealand legal academics, such as Andrew Geddis and Bridget Fenton at Otago University. They argue that CIRs are no substitute for more deliberative processes within the existing framework of representative democracy, such as joining political parties, protest marches, voting within general elections and parliamentary select committee submissions.[15]

        That is in my opinion, the responsible mature approach. I'd add royal commissions to that list as well.

        It involves debate, a lot of hard work, having to convince others to at least not oppose, and incremental changes. That all takes decades of time but means that many of the fishhooks have been removed out of the results and everyone involved in the debates are aware of what flaws and unexpected consequences to look for.

        In particular it means that there is legislation in place that expresses the wishes of parliament in comprehensive and comprehensible legislation that the courts can deal with without much ambiguity. Or at least force ambiguous, contradictory and legally untenable legislation back to parliament to deal with properly (3 strikes comes to mind).

        What advantage is advocating is (in my view) just the adolescent approach of trying to shortcut around the hard work. All that usually does is to produce a slogan that is hard to remove and and that is embedded in law that can be interpreted in whatever way that is convenient.

        The 14th amendment that Alwyn points to being a good example. It allowed the US legislative chambers to spend 50 years avoiding the debate that it should have had and making the comprehensive legislation that was actually needed.

        • alwyn

          My goodness.

          Something we appear to be in full agreement on! A miracle surely?

      • Ad 3.1.2

        It has only become hard to amend the US constitution after the 1951 22nd Amendment.

        Obviously in the previous 150 years they had 21 previous amendments, many of them quite detailed.

        • alwyn

          The first 10 amendments were the Bill of Rights. They were all enacted as a group about 4 years after the Constitution itself was enacted.

          It isn't really fair to treat them like the amendments that followed. They probably could have been included in the original Constitution rather than as amendments.

          If you do that then the rate of amendments hasn’t changed very much at all.

  4. Belladonna 4

    The lawyers would be ecstatic. A massive expansion of legal practice into interpretation of the constitution.

    Really. Much better things for NZ to do as a country. Buying a fight over constitutional change, when there is no overwhelming reason to do so – seems bonkers.

    If it aint broke…..

    • Ad 4.1

      There has been remarkably little extra litigation work after the deletion of the Upper House, the change from Dominion to nation, introduction of MMP, or indeed any other major constitutional change.

      So no, being afraid of actual legal work is not an excuse.

      • Belladonna 4.1.1

        There, however, seems to have been an awful lot generated by the Bill of Rights.

        The other elements you listed have no legal basis for challenge – whereas a constitution is chock-full of them – just begging for legal interpretation (sarc intended). Just look at the constitutional law industry in the US.

        Can you name a country, which has a written constitution (and a functioning legal system) which does not have a large body of constitutional law with judicial interpretations?

  5. KJT 5

    As someone who opposes inherited priviledge and all the ideas of "natural upper class" that goes with it, I supported a NZ head of State.

    However over the years i've decided that having British royalty as the official head of State has it's advantages.

    1. They are a long way away.
    2. They have no real power.
    3. They are not appointed by whichever political party is in "power".
    4. And most important. The Pom's pay for it!

    The “Constitional change” we need is actual democracy, not just being able every three years to change to the same people we didn’t like enough to vote for last time.

    • alwyn 5.1

      I go along with your view on the HoS but I would go further. I think we made a mistake when we stopped appointing British Peers as the Governor-General. They had a couple of advantages over the home-grown ones.

      The first was that when their term was up they buggered of home and didn't hang around collecting a pension and collecting perks like a new car every 3 years or so or the Limo service whenever they wanted it. They, or their relicts, get this for the rest of their lives. There must be quite a lot of ex-GGs or their spouse or relict who collect something. I think there are 5 of each but I may be mistaken.

      Secondly they used to give us things. Look at the Ranfurly or Plunket shields or the Bledisloe Cup. Even more generously look at the Treaty House and grounds at Waitangi. What did a local one give us?

  6. Thinker 6

    Advantage, you say "…it has to be done…" which is a gross exaggeration. It doesn't have to be done.

    However, it was done in the USA nearly 300 years ago. And clearly you and I disagree, but I think the UK is in better shape than the USA. Certainly, the USA is far from perfect for all its constitution has done for it.

    Russia, too, is governed by a constitution. Would you say that country is in great shape, or that all the people are "…happy and glorious…"?

    Let's not forget that China is also governed by a constitution. Plenty of Chinese choose to live in New Zealand, in preference to what they left behind. Many others work in sweatshops.

    I could go on… and on.

    Advantage, you clearly prefer that kind of government to what we have. You're entitled to your views. But, please don't do what was done in the 1980s and say "TINA – there is no alternative". Plenty of people don't share your view.

    We live in a world where our Foreign Affairs people are competing with other countries for free trade deals, ostensibly on a level playing field. Being part of the Commonwealth gives us a leg up with Britain, particularly now Britain extricated itself from being ruled from Europe and in my opinion will be looking for trading partners to replace the kind of networks it lost. I think it would be dumb to thumb our nose at that opportunity.

  7. Sanctuary 7

    The problem with a constitution is everyone agrees it would be a good idea until they read everyone else's proposals.

    • Hunter Thompson II 7.1

      Very good point – it is impossible to get general agreement on what a NZ constitution should include.

      We should also be wary of constitutional change that allows greater powers to the judiciary. In the USA the Supreme Court can declare a law to be unconstitutional (although it seems this power is only implicit). Giving such power to a small, unelected group of individuals is dangerous because they cannot be removed by the populace, only by old age.

      Our Supreme Court, already activist enough, does not have the collective wisdom to rule us all.

  8. Sanctuary 8

    I suppose your view on whether we need a constitution depends on what problem you think it would solve. It seems to me to be a mistake to focus on procedural aspects of democracy such as the voting system or constitutional arrangements if the assumption is they can offer a panacea solution to a wider democratic dysfunction. Constitutional reform to create a political arrangement that is more representative of 21st century NZ by way of becoming a republic (or creating the conditions for becoming a republic) has considerable merit in its own right as a public policy objective, but I doubt it would achieve much in terms making a "better" society or deliver a more representative government.

    Imagine if democracy was ice cream. You could have any number of mix and match of flavours – constitutional monarchy chocolate, republican hokey pokey, unicameral Neapolitan, bicameral vanilla – and add an electoral addition to them any number of ways – STV raisins, MMP biscuit bits, FPP caramel pieces. But if the ice cream was from sick cows, or contained all sorts of nasty toxins, or was a bit spoiled in the factory, and the electoral additions were not evenly applied or badly quality controlled then the ice cream flavour wouldn’t be a very good ice cream flavour no matter which one you tried. Saying the ice cream is crap and you need new flavours won’t produce a better ice cream, just different horrible ice cream.

    Now, I am not saying it isn’t possible given the phenomena of post-truth self-radicalisation on the right to imagine a full-throated assault on democracy by a National/ACT government. But attempts to, for example, sweep away the Maori seats would run into certain prudential headwinds, to put it politely. But to me such a government – which would echo the developments in right wing politics across the Anglosphere – would be a symptom of the current wider malaise in civil society and politics.

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