A constitutional examination

March 22nd, 2009 at 9:08 am by David Farrar

The HoS reports:

Top constitutional lawyer Alison Quentin-Baxter and Dundee University law professor Janet McLean will spend three years examining strengths, uncertainties and inadequacies in the country’s constitutional arrangements that will be published as a book.

The Cabinet Office is recruiting a legal researcher who will be based in the office and have access to its files.

This is an excellent thing to do. Events of recent years such as the shattering of the bipartisan convention to major changes to the Electoral Act have shown how uncertain our unwritten constitutional conventions are.

Even minor conventions such as Cabinet collective responsibility have been watered down that they no longer really exist. In fact some say they never did – it was always just a pragmatic practice, not a convention – so where is the line?

For me the most outraegous behaviour, in constitutional terms, was when a narrow majority in Parliament retrospectively amended the Electoral Act to keep Harry Duynhoven in Parliament despite the fact he was no longer eligible to remain an MP, and should have had to contest a by-election to be re-elected. When MPs can amend the Electoral Act by narrow majority to stop an election, we don’t have a lot of protection – just the Governor-General and they can be effectively sacked by the Prime Minister at whim.

Hence one reason I support having a Head of State who can not be sacked by the PM at whim, and a written constitution.

The research was hailed as “very positive” by former Governor-General Dame Cath Tizard, who for six years was the Queen’s representative in New Zealand.

The project would help New Zealand avoid getting into a muddle in the future, she said.

“My instincts are towards becoming a republic but I would want to ensure the change went smoothly. The Australians just barged into it and stuffed the whole thing up. Nobody had thought through the consequences.”

The research is not linked to NZ becoming a republic, but I agree it will be very useful to have had it done so that any future change can be well informed.

Yesterday, Prime Minister John Key emphasised that the book was an independent project. “I’ve made it clear that I think New Zealand will eventually become a republic but I have no plans to push that forward and it won’t happen on my watch.”

I think the logical time to have a vote on change is when the Queen dies. Hopefully that is many years off.

Quentin-Baxter said the book would spell out the constitutional law and conventions regarding the power and influence of the Queen and her New Zealand representative, the governor-general. The authors would note any areas of confusion or controversy, but would not propose law changes.

One “shadowy” area, for example, was what power the governor-general has in forming a government if an MMP election produces a stalemate. …

The book would be neutral on the question of whether New Zealand becomes a republic, she said.

However, if New Zealanders voted in a referendum to have their own president to succeed the Queen, it would be an “indispensable guide” in working out where changes to our constitutional arrangements were needed.

Yep it sounds very useful. Not useful in the sense of something you can eat or drive, but useful for policy wonks!

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20 Responses to “A constitutional examination”

  1. tvb (4,364 comments) says:

    New Zealand’s constitutional arrangements are all too easily messed about by a determined Government as the dropping of knighhoods showed, the Electoral Finance Act, the setting up of the Supreme Court, and the Dynhoven case. But it can be said that ultimately these all fell under the scrutiny of voters – Dynhoven lost his seat, the Electoral Finance Act got repealed by almost a unanimous vote including the Labour Party (who lead the passing of the legislation) and knighthoods are back. By having a written constitution you are bringing the Courts directly into the process. I like things as they are, I am sure for instance that politicians will resist trying to bring in another Electoral Finance Act without widespread support and that seems to be the case. This work of scholarship will be very valuable indeed, I just hope that dreadful pompous bullying Geoffrey Palmer keeps well away.

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  2. reid (16,290 comments) says:

    …the Governor-General …can be effectively sacked by the Prime Minister at whim.

    Really?

    I thought that it was by convention the GG assented to govt legislation: i.e. they have an option to decline if they so wish.

    Similarly, the GG has the power to sack the PM, as we saw in Aus with Whitlam.

    Those two powers which can be exercised when required makes the GG rather more than a mere figurehead which some Republican proponents rather disingenuously imply, on occasion.

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  3. peterwn (3,243 comments) says:

    Re Dynhoven case. In retrospect I consider that it was quite proper that he remained in Parliament. The only sad thing is that the relationship between the main parties was so poor that it was not possible for the House to arrange this unaminously.

    Harry lost Dutch citizenship under Dutch law when he took up NZ citizenship. Under changes in Dutch law he was able to re-gain Dutch citizenship and in doing so fell foul of electoral law. The purpose of the NZ law was to deal with possible trecherous situations. However there is no requirement that a person holding dual citizenship is barred from Parliament. To think that Harry would have betrayed NZ when re-gaining Dutch citizenship is just laughable.

    Parliament can pass retrospective legislation in some circumstances. This IMO was one of them. This is especially as the retrospective legislation did not defeat the fundamental purpose of the original legislation and moreover Harry’s circumstances were unforeseen at that time.

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  4. LUCY (359 comments) says:

    There is no way that NZ should even consider becoming a republic without a full and binding constitution. We have just had 9 years of witnessing how a government put itself above the law of the land and no-one was able to do anything about it. At least with a proper constitution the public may have at least some sense of confidence in the rule of law.

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  5. Graeme Edgeler (3,283 comments) says:

    The only sad thing is that the relationship between the main parties was so poor that it was not possible for the House to arrange this unanimously.

    National, though they might not have been too happy about it, advised that it would support the legislation if it only applied to Harry Duynhoven. Labour insisted that it apply to everyone in Parliament, but would not really say why.

    National moved amendments during the committee of the whole stage to exempt National members from the new law, so that they would would have to have a by-election if they obtained dual citizenship during the course of the Parliament (and NZF, I think, and maybe someone else as well, did equivalent things), Labour voted the amendments down.

    After the term of the Parliament expired, they went back to the old law, which everyone seems happy with.

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  6. gingercrush (153 comments) says:

    Oh please. It’ll just be another wank job with some idiotic proposal of either having a constitution like the US or a bill of rights that is permanent and needs 2/3 of the house agreement to change it. Of course both would include the Treaty of Waitangi. But they wouldn’t look at how we define it or anything. Just that both would include the Treaty of Waitangi in them. Which is pathetic since we’d end up having the courts decide everything. Which would just cause more and more crap and something we don’t need. Bugger looking at the constiutional arrangements of this country.

    I’d rather have what we have now than have to put up with the crap they have in the US or even the things that happen in Australia or Canada.

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  7. Chris Diack (740 comments) says:

    We like Janet McLean.

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  8. reid (16,290 comments) says:

    Those who think a written constitution gives any guarantee might consider how it was that Bush 43’s Patriot Acts I and II which eviscerated various constitutional provisions and the legislation following Katrina that eviscerated Posse Comitatus, were able to be passed into law so easily.

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  9. PaulL (5,971 comments) says:

    I don’t see why we’d wait for the Queen to pass away. Sure, we could do something then, at which point Charlie or Harry will be in the hot seat. We’ll do something in a hurry, and something that is driven by the perceived inadequacy of a monarch who has not been in the seat very long.

    I’d much rather have the debate now, and deal with it in a considered manner whilst there is no burning platform to rush.

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  10. side show bob (3,660 comments) says:

    So when all the results are in and wholesale changes are asked for does anyone think for one minute the politicians will fall into line, don’t make me laugh. Many in power are quite capable of knowing the difference between right and wrong but you could bet the farm they will choose what best serves their own interests. Just look at the last nine years of corrupt leadership we have had to endure and those in power were fully aware of what was right and what was wrong, just take the EFA fiasco for an example. A written constitution will do sweet piss all to bring to heel any politician or party hell bent on having their way.

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  11. racer (257 comments) says:

    I wouldn’t have thought the first 100 days would go very well if there was a written constitution?

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  12. burt (8,238 comments) says:

    Hey I’ve got a great idea – lets retrospectively declare NZ a republic 14 years ago. Labour supporters will love the idea, they have shown before that they fully support retrospectively legislation covering 14 years if it’s to achieve a self serving objective of the govt de-jour.

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  13. deanknight (263 comments) says:

    A couple of things:

    (a) We can become a republic without any radical constitutional reform, other than deeming our present Governor-General to be our Head of State rather than the Queen. There’s no need, in my view, to open the can of worms that is a written constitution etc. We’re a de facto republic already and the most painless approach is to simply formalise.

    (b) I still favour a referendum now, with a positive result deferred until the Queen passes or otherwise departs. A referendum on once she passes will mean we will be years into Charles’ reign before we even vote on the issue.’

    d

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  14. PaulL (5,971 comments) says:

    We need a written constitution, it is separate to being a republic, but tidier in some ways to do both at the same time.

    We need a written constitution to protect our basic rights, which the bill of rights doesn’t seem to do:
    – property rights
    – right to our bodies and minds (i.e. do what we like and think what we like)
    – right to freely engage in contracts with others
    – right to political expression
    – right to free speech
    – our democracy and electoral system (or at least parts thereof)
    – right to religious freedom (Brethren anyone?)

    It sort of seems like we shouldn’t need to write these things down, but whom amongst you wouldn’t say that some of them have been nibbled away at recently?

    The challenge with getting a written constitution is getting one that covers these things, but doesn’t cover random crap like the right to not be offended, the right to interfere in other people’s affairs, the right to have a job or some other things that aren’t real rights at all.

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  15. Don the Kiwi (1,706 comments) says:

    What Lucy said.

    There may be a rare issue with a Written Constitution, as witnessed in the US under Bush, and as now with Obama attempting a gag on freedom of association, and freedom of expression, and freedom of religion.
    He will not succeed, because too many savvy americans are onto him already.

    But I do agree that, if we had a Constitution as the Constitutional Society has been pushing for , for at least 50 years that I am aware of, it would have prevented the shenanigans and corruption of the Klark Kullen Klique.

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  16. deanknight (263 comments) says:

    On “rights”, see the useful analysis of their paradox here:

    http://www.guardian.co.uk/commentisfree/libertycentral/2009/mar/18/human-rights-asylum
    http://www.guardian.co.uk/commentisfree/series/deconstructing-rights

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  17. Gooner (995 comments) says:

    Yes Mr Diack, you won’t meet a nicer person than bonny lass Janet McLean.

    And if this researcher’s job is in Wellington I can think of a certain blogger with a name that rhymes with Smedgeler who should apply. I reckon it’s got his name written all over it.

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  18. Graeme Edgeler (3,283 comments) says:

    Gooner – thanks for the vote of confidence, unfortunately they’re looking for a law grad, and a pay cut. Still kinda tempting ‘though :-)

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