Reviewing New Zealand’s constitutionby Karl du Fresne
Critics claim radical changes to the way we are governed and to the role of the Treaty could be on the way, as our constitution is quietly reviewed.
New Zealand’s constitution is under review, which may come as a revelation to those who didn’t know we had a constitution in the first place. It has also come as a surprise to many people who do know about our constitution and say that it works pretty well as it is, so why tamper with it? The answer to that question lies in the political horse-trading that followed the 2008 general election. It’s hard to find anyone who argues that New Zealand’s constitutional arrangements are in urgent need of an overhaul, but a review was on the Maori Party’s shopping list when it entered coalition negotiations with National. Under the confidence and supply agreement that emerged from those talks, the Maori Party extracted a commitment that the Government would conduct a “wide-ranging” review of the constitution.
Announcing the terms of reference in December 2010, Deputy Prime Minister Bill English and Maori Affairs Minister Pita Sharples said the review would cover issues such as the size of Parliament, the length of the electoral term, Maori representation, the role of the Treaty of Waitangi and whether New Zealand needs a written constitution. The review has come under fire for a variety of reasons, among them the notable omission of any reference to a republican option. But it’s those last two points that have created the most disquiet. Critics claim the review is working towards a predetermined outcome: namely, the creation of a written constitution with the Treaty, or its “principles”, entrenched as supreme law. Under such an arrangement, the critics argue, the Supreme Court would have the power to strike down any laws deemed inconsistent with the Treaty.
Constitutionalists point out that this would subvert the principle of parliamentary supremacy, which underpins our constitutional arrangements. Ultimate power would shift from the people’s elected representatives in Parliament to the judiciary. James Allan, a former legal academic at the University of Otago, now a professor of law at the University of Queensland, says a written constitution would be a disaster for New Zealand, and that he would “run a mile” from incorporating the Treaty into any such document – “not least because no one knows what it means when applied to any specific issue”. Inevitably, it would involve judges determining how the Treaty should be interpreted and applied.
What’s unusual about opposition to the review is that alarm bells are ringing right across the political spectrum. New Zealand First leader Winston Peters says a constitutional advisory panel appointed by the Government is stacked and the outcome already decided. “The so-called ‘principles’ of the Treaty will creep into all laws that shape our existence.” In particular, critics have seized on Sharples’s statement that the review will provide an opportunity to consider how New Zealand’s legal and political systems can reflect tikanga Maori, or Maori custom. Former Act MP Muriel Newman, who has launched a campaign against the review, says a Treaty-based constitution would enshrine Maori privilege and turn non-Maori New Zealanders into second-class citizens. “New Zealand would forever be locked into a future of separatism and racial division.”
Even left-wing political commentator and historian Chris Trotter is worried. In a recent newspaper column, Trotter accused the advisory panel of being on a quixotic quest to incorporate the Treaty in a new, bicultural, binding constitution. His particular concern is that parliamentary supremacy might be threatened, but he’s also unsettled by the possibility that “identity politics” – whereby minority groups (in this case Maori) mobilise around political goals aimed at advancing their own interests – could intrude on our constitutional arrangements.
He told the Listener: “I am of the view that if the people are happy with the constitution, then (a) it’s a pretty good constitution, and (b) you should leave it alone.” He likes the constitution as it is, because there is very little standing between the people and their legislators. “There’s no written constitution, no judicial power to strike down legislation, no upper house to slow things down or throw a spanner in the works and there’s a short parliamentary term, which means that if we make a mistake, we can rectify it fairly easily.” It is, Trotter says, a system so pure in terms of its democratic structure that it is republican in all but name.
SHAM OR SCAREMONGERING?
Virtually all the critics claim the advisory panel set up to conduct the review is weighted in favour of Maori and that the language used in consultation documents is similarly loaded. They point to a requirement that the panel “seek the views of all New Zealanders … in a manner that is reflective of the Treaty of Waitangi relationship and responsive to Maori consultation preferences”. The panel’s engagement strategy emphasises the importance of engaging with iwi and hapu and at one point invokes the principle “Rangatira ki te rangatira – we will engage chief-to-chief”.
The critics’ suspicions are further aroused by the low-key nature of the review process so far. Newman says most New Zealanders have no idea that a constitutional review is under way and alleges the panel’s consultations have been behind closed doors with “carefully selected groups”. Both she and Peters have described the consultation process as a sham.
But are they scaremongering? Consider the following:
The documents outlining the review process emphasise that “engagement and information sharing are important precursors to any discussion on changes to New Zealand’s constitutional arrangements”. They go on to say that “public understanding and acceptance is needed for enduring constitutional arrangements that reflect the values and aspirations of New Zealand as a society”.
In addition, English has given a commitment that any “significant change” will require either broad cross-party agreement or the majority support of voters in a referendum. In an 83-page publication entitled New Zealand’s Constitution: The Conversation So Far, the advisory panel invites New Zealanders to take part in a “conversation” about constitutional arrangements. The panel goes on to say “it’s your constitution and your conversation”. It’s hard to read that as anything less than a commitment to seek public input.
Under the panel’s timetable, the public engagement phase has yet to begin – so it’s possible talk of a “sham” is premature. The first stage of the review, from June until September this year, was about “preparing resources and building relationships”. Stage two, from October until February, will involve “building awareness and public understanding”. Only after that will the panel begin “engaging with a broad and diverse range of communities and individuals”.
By September next year, the panel will work with a “cross-section of New Zealanders” to consider the views put to it. Its final task will be to report to the two ministers in charge of the review, English and Sharples, by December 2013. In the meantime, a cross-party reference group of MPs is being kept informed of developments. All parties except New Zealand First and Act are represented on the MPs’ reference group. On the face of things, these commitments seem to ensure transparency and inclusiveness. What’s certain is that there will be any number of critical observers ready to blow the whistle if the panel doesn’t engage with New Zealanders fully and publicly.
Another factor that might reassure sceptics is that the advisory panel includes high-profile figures with reputations to protect. The co-chairs are the respected academic John Burrows QC, a law commissioner and emeritus professor of law, and former Ngai Tahu negotiator Sir Tipene O’Regan. The panel also includes former Labour deputy prime minister Michael Cullen, former National Cabinet minister John Luxton and former Act MP Deborah Coddington – arguably not people likely to play along meekly with a charade that could damage their standing. Even critical commentators concede that the panel members take their duties very seriously. There is also an assurance from Sharples that the review will be both “open-minded
and open-ended”. Although he acknowledges the Maori Party wants to see the Treaty formalised in our constitutional arrangements, he says: “I am saying that could be an outcome. I am not saying it has to be.” No preconceived ideas, then? “No, not at all.” He later added: “If nothing comes of it, nothing comes of it.”
Sharples points out that although successive governments have recognised the Treaty as New Zealand’s founding document, its constitutional status remains unclear. But he also acknowledges there is no great public momentum for change. Even among Maori, Sharples says, there is no unanimity about the Treaty’s standing. To suggestions that republicanism was deliberately excluded from consideration because of Maori fears that a change to republic status would undo the Maori relationship with the Crown, he says the Maori Party was not too hard and fast about the terms of reference. “The reality is that it’s open for any topic to be discussed, and that’s really important.”
As for claims that the panel is operating by stealth, the Maori Party co-leader says he doesn’t see how the process could be more open. “We are saying, ‘This is the panel, these are the people on it, and they welcome interviews with any group at all.’” For its part, National seems decidedly unenthusiastic about the exercise. English says the Government is “pretty satisfied” with the current constitutional arrangements. He accepts the Maori Party would probably like to see more formal constitutional recognition of the Treaty, but says it hasn’t clearly articulated that desire. “Our view is that the current arrangements are satisfactory and that we want to retain the dynamism of our unwritten constitution. “It’s hard to know where the review will end up. Time will tell.”
New Zealand’s leading constitutional scholar, Professor Philip Joseph, describes our constitutional arrangements as a story of pragmatic evolution – a phrase coined by a parliamentary select committee in 2005. New Zealand is one of only three countries in the world (the others are Israel and Britain) without a written constitution. That doesn’t mean, as is often supposed, that we have no constitution at all. It’s just not encapsulated in a single document, as Australia’s and America’s are. Moreover, most of the laws relating to New Zealand’s constitutional arrangements (again, unlike Australia’s and America’s) are not “entrenched”.
In other words, they are normal statutes that can be altered or repealed like any other legislation. The exception is the Electoral Act of 1993, which contains some entrenched provisions – such as the length of the parliamentary term – that can be changed or abolished only by referendum or with the support of at least 75% of Parliament. Joseph says the main elements of the constitution were brought together in the Constitution Act of 1986, passed by the Lange Government following a crisis triggered by defeated prime minister Robert Muldoon’s refusal to co-operate with the incoming regime in 1984.
Other parts of our constitutional arrangements are set out in British laws inherited by New Zealand (for example, the Magna Carta), vice-regal powers (covered in the quaintly named Letters Patent Constituting the Office of the Governor-General) and certain decisions of the courts. In addition, there are constitutional conventions – practices that have evolved over time and are observed by governments even though they are not set out in law. Joseph says the constitution is constantly undergoing review as discrete issues arise and are dealt with by Parliament or the courts.
As an example of constitutional evolution, he cites the Bill of Rights Act of 1990, which rebalanced the rights and interests of the individual against those of the state. Parliament stopped short of making it entrenched law, as originally proposed, but the act was given traction by the Court of Appeal under Justice Sir Robin (later Lord) Cooke and had a “profound and ongoing effect”. Joseph says the Bill of Rights Act was a good example of New Zealand adapting its constitutional arrangements in a pragmatic way. He adds that many lawyers still believe it should be entrenched.
Another statute with far-reaching constitutional implications was the State-Owned Enterprises Act 1986. To allay the concerns of northern Maori, who feared the creation of SOEs would result in the permanent loss of lands and assets that were likely to be the subject of Treaty claims, a section was inserted in the Act preventing the Crown from acting “in a manner inconsistent with the principles of the Treaty of Waitangi”. It subsequently fell to the Cooke-led Court of Appeal to interpret that section. Joseph says the court’s decision, which spoke of the Treaty as a partnership, “kick-started our modern Treaty jurisprudence in what was really a most significant moment”.
What, then, does Joseph make of the current review? The first point he makes is it’s a political creation rather than a review arising from a need to correct obvious or urgent shortcomings. “The genesis of this review is political. That’s not to say it will play out that way, but certainly its origins can be seen in that context.” He’s critical of the terms of reference, which he says “cobble together fundamental questions regarding the Treaty with discrete, disconnected issues concerning the electoral system. There’s no coherence, really.” Moreover, he notes the conspicuous absence of any reference to whether the British monarch should be retained as head of state. “Republicanism is a simmering issue that we will have to address sometime.”
Does he take the view – as many critics do – that the constitution isn’t broken, so doesn’t need fixing? Joseph agrees our constitutional arrangements have served us well. “There’s no question we are a liberal, democratic country that abides by the rule of law.” But he suggests it’s natural for a country at this point on its constitutional journey, having progressed from colonial through dominion status to a fully independent sovereign nation, to revisit its constitutional foundations. “We’ve reached the stage where we’ll be asking these questions – addressing the fundamentals – more and more.”
As for the notion of a written “supreme law” constitution, Joseph says it offers benefits and disadvantages. It creates a stronger sense of national identity and has educative value as a “proclamation of what the state is and what it stands for”. It can also heighten awareness of individual rights – as in the United States, where college students can recite the Bill of Rights from memory. But more contentiously, a supreme law constitution – as in the US – would represent a very significant shift of power from the legislature to the judiciary. As Joseph says, New Zealanders adhere strongly to the concept of parliamentary democracy. “We elect our politicians and expect them to exercise responsibility on our behalf.” A supreme law constitution would “judicialise” aspects of public decision-making that might be better suited to the political arena.
He points out that the current review isn’t the first. In 2000, a Government-backed conference entitled Building the Constitution was held in Wellington. Joseph was a key speaker and recalls the event as a spectacular failure because every session imploded on the same issue: the Treaty. “It was like a vortex pulling everything in.” Participants talked of the Treaty as if there were an assumption that it must be at the centre of any written constitution, but Joseph highlighted a problem that appeared not to have been thought of by Maori delegates.
“These eminent gentlemen, when they want to have input into public policy, go and knock on the minister’s door and are well received. “But if we entrench the Treaty, they can’t knock on the minister’s door because it’s no longer the minister’s decision, it’s the courts’. You are relocating a fundamental decision-making power from one side of Molesworth St [the Beehive] to the other [the courts].”
Nonetheless, Joseph can’t see the review avoiding the Treaty: it’s in the terms of reference and is deeply important to the Maori Party. Besides, he points out that the Treaty is one feature of our constitutional arrangements that is unique to New Zealand, “so it’s not surprising that it’s centre-stage”. As for claims the panel will be biased in favour of entrenching the Treaty, Joseph says there is a safety valve. “As I understand the panel’s mandate, they are to go out and tap into the public’s thinking. If there is any inherent bias within the panel – and I’m not saying there is – that engagement with the public will be a self-correcting mechanism.”
BEEN THERE, DONE THAT
United Future leader Peter Dunne can be excused a feeling of déjà vu, because he has seen this all before. In 2004 he chaired a special parliamentary select committee that reviewed New Zealand’s constitutional arrangements. It led nowhere. Dunne says Helen Clark’s Labour Government set up the review in response to Don Brash’s famous Orewa speech, in which the then National leader called for “one rule for all” and an end to special privileges for Maori. Labour was in a state of shock and panic over the strong public response to Brash’s speech and saw the review as a way of defusing the issue.
As an “ardent, unreconstructed republican” with an interest in constitutional issues, Dunne was happy to chair the committee. But he says the outcome was limited by the committee’s composition – National, ironically, refused to take part – and Clark’s fear that things might get out of hand. By 2005, when the committee produced its report, “Brash had defused himself” and the political heat was off. In the end, all the committee did was catalogue New Zealand’s constitutional arrangements – “which are spread all over the place” – and suggest a public education programme. Against that background, it’s probably not surprising Dunne takes a cynical view of the current exercise, pointing out that National and the Maori Party went into the 2008 election with fundamentally opposed positions – “one was going to abolish the Maori seats by lunchtime and the other was going to entrench them”.
“My strong view is that this review is a very elaborate mechanism to allow both of them to get off their high horses. It will come out at the end recommending the retention of the Maori seats but not, I suspect, their entrenchment. So the status quo will be neatly preserved and both parties can hold their heads high.” On the other hand, Dunne – a member of the MPs’ reference group – acknowledges the constitutional review panel consists of “high-quality” people who are doing “a good and worthy job” and would not appreciate being accused of undertaking a cynical political exercise. Moreover, he is satisfied the panel will make a genuine attempt to engage and consult widely.
He shares the view that the constitution has worked well but thinks it could have a stronger New Zealand flavour. Apart from favouring a republic, Dunne believes the Bill of Rights Act deserves a more elevated status. And the Treaty? Dunne agrees it’s the most contentious issue, but says it must be addressed. “We don’t know what the ‘principles’ are but we pay homage to them nonetheless. I don’t think that’s a tenable solution, long-term.” He thinks it unlikely New Zealanders will find themselves suddenly presented with a radical new constitution with the Treaty as its centrepiece. Although such a proposal might emerge in draft form, “it would have a long way to go before becoming law, and it’s not the sort of thing I could see this Government going anywhere near”.
So the best we can hope for is an intelligent, mature debate about the constitution and how it might change? Dunne says yes. But although the review may have been initiated for political reasons, he doesn’t rule out the ironic possibility that it will awaken a genuine desire for reform. Among younger people, in particular, he detects an increased enthusiasm for discussion about the country’s future direction. “What is being unleashed is a spirit for change that will be very hard to resist. I think the genie is coming out of the bottle.”
The review panel
Emeritus professor John Burrows QC and Sir Tipene O’Regan. Burrows is a member of the Law Commission and a former eminent law academic. O’Regan was the Ngai Tahu iwi’s chief Treaty claims negotiator and has a background in Maori governance and commercial activity.
Michael Cullen, former Labour deputy prime minister and minister in charge of Treaty negotiations, now chairman of NZ Post and principal Treaty claims negotiator for Tuwharetoa.
John Luxton, former National Cabinet
minister, now involved in agribusiness.
Deborah Coddington, journalist and former Act MP.
Peter Chin, lawyer and former mayor of Dunedin.
Bernice Mene, teacher and former Silver Fern.
Leonie Pihama, former senior lecturer in Maori education at the University of Auckland.
Hinurewa Poutu, doctoral student and Maori language teacher.
Linda Tuhiwai Smith, pro vice-chancellor (Maori) and professor of education and Maori development at the University of Waikato.
Peter Tennent, former mayor of New Plymouth.
Ranginui Walker, member of the Waitangi Tribunal and prominent Maori author and academic.
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