Constitutional Recommendations

December 6th, 2013 at 6:42 am by David Farrar

The Constitutional Review Panel has made a number of recommendations to Cabinet. Mostly they are general stuff about further talking, but a few specific views emerge. They include:

  • notes that although there is no broad support for a supreme constitution, there is considerable support for entrenching elements of the constitution
  • notes the consensus that our constitution should be more easily accessible and understood, and notes that one way of accomplishing this might be to assemble our constitutional protections into a single statute
  • notes the Panel’s advice that the current arrangements for the representation of Māori in Parliament should remain while the conversation continues
  • sets up a process, with public consultation and participation, to explore in more detail the options for amending the Act to improve its effectiveness such as adding economic, social and cultural rights, property rights and environmental rights; entrenching all or part of the Act
  • does not undertake further work on the size of Parliament 
  • notes a reasonable level of support for a longer term
  • sets up a process, with public consultation and participation, to explore a fixed election date in conjunction with any exploration of a longer term
  • notes a level of concern about MPs leaving the parties they were elected with, especially list  MPs, but no consensus about a solution
  • recommends the Government invites Parliament to differentiate between types of urgency and to minimise the use of the urgency truncating select committee consideration of bills

Some worthwhile stuff there on bringing the constitutional acts into one statute, and looking at a longer term with a fixed date. Including property rights in the Bill of Rights Act has appeal also.

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Constitution and confidence votes

November 15th, 2013 at 3:00 pm by David Farrar

The Governor-General made some interesting points in a speech this week:

It is worth remembering that a party or grouping of parties may be able to secure a majority even if it does not hold more than half of the seats in the House.  This is because a confidence vote, like all questions put to the House, is decided by a simple majority of votes cast.  To illustrate the point: a party may state publicly and unambiguously that it will not provide support on matters of confidence to any other party or grouping of parties, and that it will instead abstain on confidence votes and vote on legislation case by case.  Whatever that party’s motives, its abstention is constitutionally significant, because it reduces the number of votes another party or grouping of parties will need to win confidence votes and command the confidence of the House.

This is not an impossible scenario. A centrist party could take that stance. They would effectively hold the balance of power on votes on individual legislation, but abstain on confidence and supply votes. This would mean that the party or bloc with the largest number of seats (even if not a majority) could form Government.

Since MMP was introduced, it has been the practice of the parties forming the government to commit to working together for the duration of the parliamentary term.  This is not a formal requirement, and there can never be a guarantee that any agreement reached will hold in practice.  My experience of New Zealanders, though, is that they place a high value on stable government, and will expect parties to make best endeavours to agree on commitments for the full term of Parliament.

This is also a key point. Parties don’t need to commit for the full term, and as the GG says, they can change their mind anyway.

It is possible for a Government to be formed without formal confidence and supply agreements. Just on the basis of a statement from a party that for now they will vote for confidence. Basically it is minority government. This is the case in Canada where minority Governments often are the case, but never have formal confidence and supply agreements.

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Should blood determine seats?

June 19th, 2013 at 10:00 am by David Farrar

The Listener has a lengthy article based on a submission by Michael Littlewood to the constitutional review. Well worth buying the latest issue for the whole article. A few extracts:

In the past three years, I have been tracking down my family’s roots and I now know the names and origins of all 32 of my great-great-great (GGG) grandparents. Fifteen were from England, 10 from Ireland, four from Scotland, two from Wales and one, a Maori, from New Zealand. 

The individual form in the 2013 Census, like others before it, had three questions on race. Question 11 asked: “Which ethnic group do you belong to? Mark the space or spaces which apply to you: New Zealand European; Maori; Samoan; Cook Island Maori; Tongan; Niuean; Chinese; Indian; Other such as Dutch, Japanese, Tokelauan. Please state.” Based on the nationalities of my GGG grandparents, I suppose I should have chosen New Zealand European and Maori, but I really do not feel I “belong” to those “ethnic groups”. Given that “belong” is as much about perception as DNA, I chose Other and wrote “New Zealander”. 

But ticking that box has a great effect on policies and funding.

But what would they have made of my answer if I had chosen “New Zealand European” and “Maori” as I suspect they wanted? The significance of the answer to this ques- tion diminishes over generations. It is now irrelevant and it’s time the statisticians real- ised that. If your grandparents were born in New Zealand, perhaps even your parents, you are surely a New Zealander, regardless of your racial background. It’s wrong for the census to ask me ques- tions about my feelings, which is what question 11 really does. It’s also wrong for whatever reason to slice and dice New Zealanders according to their feelings about ethnicity. I understand the wish of statisticians to continue asking the same questions from census to census so they can look at changes over time, but it’s time to stop asking New Zealanders a question about their feelings on race. 

And he looks at the Maori seats:

Given the now extremely low threshold that establishes whether a New Zealander is Maori or not, it is hardly surprising that the number of Maori MPs representing electors on the general roll significantly exceeds the number of MPs in Maori seats. In 2013, 16 “Maori” MPs represent electors on the general roll compared with just seven separately elected Maori MPs.

I think the distinctions between Maori electors and others, and between Maori MPs and others, are now indefensible. I’m not suggesting we ignore public policy issues of direct concern to Maori. We do not need a female roll and female MPs to ensure issues of concern to women are addressed; nor do we need an Asian roll and Asian MPs to address the needs of the Asian com- munity. That there are still issues of concern to Maori does not justify a Maori roll and Maori MPs. In 1840, the Treaty signatories did not directly contemplate separate repre- sentation in a Parliament of New Zealanders, but even if they had, that is no justification to continue race-based separatism in 2013.

Sadly some people do push for there to be female quota MPs, and no doubt a female roll!

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SST readers on constitutional issues

May 5th, 2013 at 9:00 am by David Farrar

The SST did a survey of readers on constitutional issues. Not a scientific random sample, but some interesting results. They are:

  • 27% for a republic, 55% against
  • Preferred President – John Key 20%, Helen Clark 15%, Geoffrey Palmer 12% (really?), Willie Apiata 8%
  • Four year term – 56% yes 40% no
  • Maori seats – 26% yes, 70% no
  • Treaty in written constitution – 34% yes, 56% no
  • If capital moves – Auckland 39%, Nelson 17%, Invercargill 8%, Suva 3%
  • New national bird – Kea 36%. Kahu 24%, Pukeko 13%
  • Change NZ flag – 50% yes, 45% no
  • Change NZ anthem – 40% yes, 54% no
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A constitutional issues poll

April 7th, 2013 at 10:00 am by David Farrar

I’ve blogged at Curiablog the details of a poll by ResearchNZ on constitutional issues. Pleased to see 58% support for a four year term, but that is not the surprising result.

If NZ does adopt a written constitution, 58% said they support incorporating the principles of the Treaty of Waitangi into it, with only 35% opposed.

I’m a bit surprised by that level of support. Mind you if you asked along the lines of “Do you think the Supreme Court should be able to strike down laws that it finds are inconsistent with the Treaty of Waitangi“, you may get a somewhat different result.

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Debating the Constitution

April 2nd, 2013 at 2:00 pm by David Farrar

The NZ Centre for Public Law at Vic Uni has a series of debates on constitutional issues. They run for the next five Mondays at 6.30 pm. The details are:

  1. 8 April, Hunter Council Chamber – “What’s the problem?”. Professor Bruce Harris, Moana Jackson, Dame Claudia Orange, Dr Matthew Palmer – about the Constitutional Review, its process, its political genesis.
  2. 15 April, Hunter Council Chamber – “Reforming our democratic institutions”. Dr Maria Bargh, Colin James, Professor Elizabeth McLeay, Sir Geoffrey Palmer QC – term and size of Parliament, size and number of electorates, Maori electoral representation.
  3. 22 April, Te Herenga Waka Marae – “Maori aspirations for constitutional change”. Tai Ahu, Dr Rawinia Higgins, Veronica Tawhai, Valmaine Toki – status of the Treaty, alternative models of Māori-Crown relationships, development of a kaupapa Māori or tikanga-based constitution.
  4. 29 April, Hunter Council Chamber – “Human rights in the constitution”. Professor Andrew Geddis, Jack Hodder QC, Stephen Whittington, Professor Margaret Wilson – Should the Bill of Rights be supreme law in a written constitution? If so, what rights should be included or excluded?
  5. 6 May, Hunter Council Chamber – “Time to be a Republic?. Jim Bolger, Professor Janet McLean, Michael Mabbitt. Is it time to become a republic? If not, will it ever be? What would that involve, and what will be the major issues confronting us if and when we do so?

I plan to attend at least three of the debates. I assume they will allow interactions from the floor? They will be broadcast of Radio NZ also.

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Constitutional Issues Forum

February 26th, 2013 at 11:00 am by David Farrar

Audrey Young at NZ Herald reports:

The issue of whether MP Brendan Horan should resign from Parliament now his party has expelled him could be part of the legitimate public “conversation” on a wide range of issues relevant to New Zealand’s constitutional arrangements.

The Government-appointed advisory panel on constitutional issues will today launch a public consultation process at Te Papa in Wellington.

One of the issues under discussion is electoral integrity legislation – also known as party-hopping law – and whether MPs that leave parties from which they were elected can continue to remain in Parliament. …

Among the other issues the panel wants discussed is whether Maori representation in local government should be guaranteed, whether the Treaty of Waitangi should be entrenched in law, if the Bill of Rights Act should be made higher law (enabling the courts to invalidate laws that are inconsistent with it), the size of Parliament and the length of the parliamentary terms, and whether New Zealand should have a written constitution.

All good issues for debate.

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The term of Parliament

February 7th, 2013 at 10:00 am by David Farrar

Simon Day at Stuff reports:

Prime Minister John Key wants to extend the parliamentary term to a fixed four-year period as part of the Government’s constitutional review.

One hundred and 73 years after the constitutional foundation of New Zealand was laid, the constitutional landscape was again the topic of discussion at Waitangi yesterday.

“My view is that there should be a four-year fixed date of Parliament.

“I think it makes a lot more sense to know when the date is fixed and I think it makes a lot more sense to have it for four years,” Mr Key said.

I support both these changes. A fixed date gives certainty and also removes a tactical advantage from the incumbent PM. And absolutely three years is too short an electoral term. NZ and Australia are very rare in having such a short term. It gives very little time for Governments to design and implement policies before the politics of election campaigns interfere.

The only Parliament I know with a shorter term is the US House of Representatives at two years, and we can see the impact as Representatives are constantly campaigning for re-election and hence the House has been a source of leglisative gridlock for many years.

Any change would require the support of 75 per cent of MPs or public support in a referendum. The proposal had failed twice before, in 1967 and 1990.

But the prime minister appears to have the support of his political opponents and allies.

Opposition leader David Shearer agreed that three years was not enough.

Good on Shearer. Any change should go to a referendum, and importantly should not come into force immediately. What I mean is if there is a referendum with the 2014 election, the term of Parliament for the next Parliament should not be dependent on the  outcome, rather it impacts the term after that.

So the next Parliament would be 2014 to 2017, but the one after that might be 2017 to 2021 if NZers voted for a four year term. This is important for two reasons.

The first is we must know what the term of Parliament is when we elect a Parliament. The second is that people are more likely to vote for an extension of it is not see as a Government trying to extend its next term in office – but rather is for the term after the next term.

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Cullen on the constitution

February 6th, 2013 at 3:00 pm by David Farrar

Sir Michael Cullen writes in the NZ Herald:

It is no great secret that I am, by and large, a constitutional conservative, supportive of parliamentary supremacy, and therefore opposed to a written constitution which has the status of supreme law, not fussed about New Zealand continuing to be a constitutional monarchy, a little sceptical about how much of the burden of defining a nation the Treaty can bear, and generally holding the view that the onus of proof in relation to any proposed constitutional change lies with the proponents of that change.

I agree the onus of proof for constitutional change should lie with the proponents.

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The Constitutional Advisory Panel

September 13th, 2012 at 11:00 am by David Farrar

The Constitutional Advisory Panel has published a discussion booklet. Some of the issues they are looking at are:

  1. Should the size of Parliament be changed?
  2. Should the term of Parliament be increased?
  3. Should the election be a fixed or semi-fixed date?
  4. How many electorates should we have?
  5. Should the South Island requirement of 16 electorates remain?
  6. Should the population tolerance for electorates remain 5% or increase to 10%?
  7. Should we have electoral integrity or anti-party-hopping legislation?
  8. Should the Maori seats be retained?
  9. Should the Maori seats be entrenched?
  10. Whether there are alternative or complementary ways to ensure Maori are represented in Parliament, to the Maori seats?
  11. Should there be guaranteed Maori representation on local authorities?
  12. Are there are more effective ways of ensuring Māori views are represented in local authority decision-making?
  13. Should the Treaty of Waitangi be supreme law so laws can not be inconsistent with it?
  14. Should the Bill of Rights Act be supreme law so other laws can not be inconsistent with it?
  15. Should the Bill of Rights Act be superior law so other laws can not be inconsistent with it, unless Parliament explicitly resolves otherwise (a notwithstanding clause)
  16. Should the Bill of Rights Act be broadened to include additional rights, such as property rights, social rights, cultural rights or environmental rights?
  17. Should the Bill of Rights Act be entrenched?
  18. Should we have a written constitution, with the judiciary able to strike down laws inconsistent with it?
  19. Should we reintroduce a second legislative chamber or upper house?
  20. Should we become a republic?

My views are:

  1. The size of Parliament should be increased to 160.
  2. The term of Parliament should be increased to four years.
  3. The election should be a semi-fixed date of last Saturday in November unless no Government can govern with confidence.
  4. The number of electorates should be 100, with 60 list MPs or alternatively be a ratio of 5:3
  5. The South Island should have 25 electorates.
  6. The population tolerance for electorates should be 10%.
  7. We should not have electoral integrity or anti-party-hopping legislation.
  8. The Maori seats should not be retained, but realise change should only occur with Maori agreement.
  9. The Maori seats should not be entrenched.
  10. The alternative to Maori seats should be a lower threshold for parties representing Maori interests, as recommended by the Royal Commission.
  11. There should no guaranteed Maori representation on local authorities.
  12. All local authorities should have non-voting representatives of local Iwi on them, who have the same support and access as Councillors. However voting rests with elected Councillors only.
  13. The Treaty of Waitangi should not be supreme law unless there is a mechanism to amend it.
  14. The Bill of Rights Act should not be supreme law.
  15. The Bill of Rights Act should be superior law so other laws can not be inconsistent with it, unless Parliament explicitly resolves otherwise (a notwithstanding clause).
  16. The Bill of Rights Act should be broadened to include property rights.
  17. The Bill of Rights Act should be entrenched.
  18. We should have a written constitution, with the judiciary able to strike down laws inconsistent with it.
  19. We should not reintroduce reintroduce a second legislative chamber or upper house.
  20. We should become a republic.
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History revisisted

August 29th, 2012 at 7:09 am by David Farrar

Audrey Young at NZ Herald reports:

 Former National Party leader and New Zealand’s ambassador to the United Nations Jim McLay today revealed more details around Plan B to deal with the economic caused by Sir Robert Muldoon in 1984.

It involved the cabinet deposing him.

It also involved the getting Governor General Sir David Beattie to appoint himself, Mr McLay, as a temporary Prime Minister in order to carry out the requests of the incoming Labour Government.

Straight after the snap election in 1984, but before the Labour Government could be sworn in, Reserve Bank and Treasury officials advised Sir Robert to immediately devalue the New Zealand dollar to address the pressure on the currency that had been building.

Their advice had the support of Labour leader and incoming Prime Minister David Lange.

Sir Robert refused, much to the astonishment of Mr McLay, who was his Deputy and outgoing Attorney General.

It was an astonishing stand off, and the closest we have come to a constitutional crisis. It was also a very undignified end to Muldoon’s tenure. It was as if he could not accept he had lost.

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Can they ever be constructive?

March 14th, 2012 at 1:00 pm by David Farrar

Radio NZ reports:

New Zealand First is refusing to take part in the Government’s constitutional review.

The review is looking into matters such as the size of Parliament, Maori representation, the role of the Treaty of Waitangi and whether New Zealand needs a written constitution.

But New Zealand First leader Winston Peters says it is sham designed to sneak the principles of the Treaty of Waitangi into all laws.

This is so typical. An inability to actually contribute constructively to anything – just mindless opposition. It would be one thing to take part, and then if you didn’t like the recommendations to depart, condemning them. But to refuse to even participate in the first place, means that you have made your mind up to oppose it regardless of what is recommended. And that is a pity because constitutional changes should have as much support as possible.

Peters lies that it is all about the Treaty. In fact many of the issues under consideration are ones he has championed – the size of Parliament and electoral integrity (waka jumping) laws. So NZ First has said we don’t want to even advocate for policies we have supported in the past.

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The Elias speech

October 15th, 2011 at 11:05 am by David Farrar

The media have suddenly found a speech by Chief Justice Elias and are reporting:

The country’s top judge has taken a veiled swipe at the Government’s justice policies, warning that some Cabinet decisions threaten the “fragile” independence of the judiciary.

In a rare public critique, Chief Justice Dame Sian Elias warns that decisions “which seem quite innocent” are undermining the basic principles of the constitution.

In a speech at Waikato University last month, Dame Sian broke with convention, criticising moves by politicians to interfere with the courts in pursuit of cost savings.

The speech was made on 12 September, so has been available for five weeks. The first part of her speech is about constitutional reform, and I tend to agree with the sentiments of the CJ that the reliance on conventions has its risks. On one issue of electoral law the CJ said:

The Electoral Acts stand in a special category because they establish the conditions of democratic government and have long been subject to supermajority requirements for amendment as a result.

I wish that was the case. But in fact only a small number of provisions in the Electoral Act require a super-majority, and in recent times we have seen highly partisan and even retrospective changes to the Electoral Act done on narrow majorities. I would like to see more of the Electoral Act entrenched.

Of course the entrenchment clause itself is not entrenched so Parliament could change even entrenched clauses with a bare majority, but there would be a significant political price to pay for doing that.

The CJ then refers to three risks from the current “obscurity” of the constitution. They are:

  1. the rule of law
  2. human rights
  3. the role of the Treaty

With regard to (1) she quotes Lord Cooke that there are some rights and duties that are “truly fundamental” and are ultimately an inescapable judicial responsibility. This is an ages old argument about what would the courts do if for example Parliament voted to execute all babies with blue eyes. It is an interesting academic argument but not one I deem necessary to stay awake at nights worrying about.

Personally my view is that the reserve powers of the head of state should be the protection we rely on from a non-benign Parliament, but the problem with our current arrangements is the PM can sack the effective head of state at will.

The part that has got people excited is this:

I think there are signs that the courts are isolated and aspects of their independence precarious. Court resources are within the responsibility of executive government. Regulations prescribe the terms on which citizens have access to the courts. Court fees are within executive control. These are matters which should be subject to more public discussion than has been the case, perhaps because they are not popularly seen as touching on the constitutional principle of access to the courts. One of my colleagues has asked in a previous Harkness Henry lecture, not entirely in jest, whether we would regard with similar equanimity the imposition of fees to have access to a member of Parliament or a responsible Minister. Judges and lawyers may get the point. But if the wider community does not, it is no jesting matter at all.

Judges complaining about court fees is nothing new. But unless the Judges wish to self-fund their salaries, then Parliament will set the fees (or delegate to Govt) as it is Parliament that raises the revenue to pay for their operations.

As for the comparison to access for MPs, I think it is apples and oranges. No developed country charges for access to MPs and no developed country I know of has no court fees.

Judicial support staff are Ministry employees. The Registrars of the courts are managers employed by the Ministry although nominally responsible to the judges for their registry functions. The judges have no effective say in the allocation of the budget for courts and have had little influence in the priorities set by the Ministry. It seems to be assumed that the administration of the courts (including the administration of judges) is an executive function and that judicial independence is sufficiently preserved if individual judges are not directed how to decide particular cases.

Here the Chief Justice is acting as head of the Judges’ Union. Most previous CJs have done the same. Wanting their own budget has been a long-standing issue, as is wanting to control their support staff directly. I have some sympathy for their desires but would be interested in how many countries have the judiciary actually managing their own department.

It can be expected, too, that the work of international agencies such as the United Nations Human Rights Committee will provide encouragement towards commonality. It would be bold to suppose that legal cultural differences will not shift under such external influences.

The UN Human Rights Committee/Council is probably the biggest threat to human rights we have. They seek to invent new rights such as for religions to be immune from criticism which would be fatal for free speech.

Perhaps it is time to think again about the recommendation of Lord Lester that we would benefit from a Human Rights Committee of Parliament to keep a close watch on legislation which impacts on fundamental rights and freedoms. Such a Committee might even with advantage take on a wider responsibility to scrutinise measures which impact upon constitutional values.

The CJ says several times that protecting human rights is not the duty of the courts alone. I agree, and think a Human Rights Committee of Parliament could be a good thing.

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The constitutional review

December 8th, 2010 at 11:07 am by David Farrar

Bill English and Pita Sharples have announced:

The Government will conduct a wide-ranging review of New Zealand’s constitutional arrangements, Deputy Prime Minister Bill English and Maori Affairs Minister Pita Sharples announced today.

“This is the start of what will be a considered process over the next three years,” Mr English says.

“The review is deliberately wide-ranging and will include matters 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.

“New Zealand has a long history of incremental constitutional change and we are keen to stimulate debate on these matters, hear the public’s views and consider whether any aspects require change.

I’m delighted these issues are being examined together, rather than piece-meal. It is long over-due.

“Of course, we will keep in mind that enduring constitutional changes generally require a broad base of support. Significant change will not be undertaken lightly and will require either broad cross-party agreement or the majority support of voters at a referendum,” Mr English says.

This is vitally important. Decisions on the constitution should not be made by narrow partisan majority in Parliament.

Mr English and Dr Sharples will lead the review in consultation with a cross-party reference group of MPs. They will write to all party leaders in the next few days and ask them to nominate a representative for the cross party reference group.

It will be very interesting to see whom the parties choose. My guess for the Greens is Metiria or Kennedy Graham. Labour is probably Parker or Dalziel.

An advisory panel will support the ministers, who will make a final report to Cabinet by the end of 2013. The Government will respond within six months.

As well as an advisory panel, there should be plenty of public seminars and workshops. Also formal consultation issues and options papers.

The ministers’ first report to Cabinet – expected by June 2011 – will seek agreement on the makeup of the advisory panel, a plan for public engagement and how the review will interact with other government projects with a constitutional dimension – such as the referendum on MMP.

Sounds good.

Electoral matters including:

  • The size of Parliament.
  • The length of terms of Parliament and whether or not the term should be fixed.
  • The size and number of electorates, including the method for calculating size.
  • Electoral integrity legislation.

Crown-Maori relationship matters including:

  • Maori representation including the Maori Electoral Option, Maori electoral participation and Maori seats in Parliament and local government.
  • The role of the Treaty of Waitangi within New Zealand’s constitutional arrangements.

Other constitutional matters

  • Whether New Zealand should have a written constitution.
  • Bill of Rights issues

Very pleased to see the size and term of Parliament included. I support a fixed four year term. The electorate size variation is also an issue. Not sure what electoral integrity legislation means though – presumably giving parties the ability to sack MPs from Parliament (which I do not support).

The role of Treaty has to be part of any discussion. My view is that it is a very important aspirational document such as the US Declaration of Independence and it can not be incorporated into a written constitution because there is no process to democratically update or amend it. Constitutions have to be amendable.

The issue of the Maori seats will be interesting also. I actually think that Maori would be better served by adopting the Royal Commission’s recommendations on the Maori seats and threshold for list votes – it would make it more likely you would have multiple Maori parties in Parliament.

Also very keen to engage on the issue of a written constitution.

Somewhat ridiculously the issue of the head of state is not included explicitly but the cabinet paper notes this “may” arise as an issue. It will inevitably arise during discussions of a written constitution as powers of the head of state will form part of that.

The full cabinet paper is here.

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Labour should be consulted

November 9th, 2010 at 1:47 pm by David Farrar

NZPA report:

Labour expects the Government to consult with it over a constitutional review to consider such issues as Maori representation, leader Phil Goff says. …

Mr Goff said constitutional issues should be decided on a non-partisan basis but the Government had made no effort to contact his party over the review.“The Government, I presume, will make an approach to try to get a cross-party agreement on something as fundamental as constitutional change in New Zealand,” he said.

“I think the whole process should be inclusive, and that includes talking to all the parties across Parliament.”

I agree with Phil Goff. Labour, and indeed all parliamentary parties, should be consulted at an early stage on constitutional issues. These should be dealt with as openly as possible.

Of course Labour did not consult themselves on major constitutional issues such as the Electoral Finance Act and the Supreme Court establishment, but the record of the last Government should be seen as what not to do – not a benchmark for future Governments.

Prime Minister John Key said the Government had not yet decided when it would consult other parties.

“That’s something we’re going to have to consider, not just Labour but other political parties,” he said.

“You’ll remember that its genesis came from the confidence and supply agreement with the Maori Party so that’s been our initial body of consultation … between National and the Maori Party.”

However, the nature of the review meant it was likely other parties would be consulted.

Sounds like they will, which is the right thing to do. Also, maybe ask the public for our views on what the terms of reference for the review should be. Ultimately the constitution belongs to the people, even if indirectly.

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Reconstituting the Constitution

September 2nd, 2010 at 9:00 am by David Farrar

I’m attending the Reconstituting the Constitution conference today and tomorrow. Topics being discussed are:

  • Overseas constitutional reform lessons
  • The republican question
  • The need for a written constitution
  • The future of electoral law
  • Australian constitutional reform
  • Influence of international treaties
  • The trans-tasman relationship
  • The role and governance of sub-national government
  • Protecting future generations

I hope to blog some of the contributions.

UPDATE: The conference is being webcast for those who are interested in these issues – http://www.r2.co.nz/20100902/

Grant Robertson, as host, did the welcome address. He must have read my blog this morning as he remarked how looking around the people gathered in the Legislative Council Chamber, he thought what a fine upper house they would make. Then seeing me at the back, he hastened to add on “except for David Farrar”. I guess Grant prefers one party rule :-)

In a  nice twist the opening speech is not from one of the “good or great”, but a couple of recent Victoria law graduates – Greg who now works for Crown Law and Catherine who is a clerk to Justice Arnold of the Court of Appeal.

Greg made the point that most people probably know more about the US constitution, than the NZ one. He went on to say this is partly because our arrangements do work. He does see the future as NZ having a document which is supreme law, and NZ being a republic.

He also touched on how to get better engagement with these issues. Looking around the room I note there are very very few MPs or media present. If one really wanted to get constitution debate going you need the people who can actually do something about it there and participating.

Catherine touched on how the projected population growth for Maori (21% vs 11% for non Maori) means it is likely treaty issues will become more important in future. She compared our approach to constitutional issues as being like McGyver – we patch it up with number 8 wire and think she’ll be fine mate.

Was a very good idea starting with two young graduates. Any constitutional changes in future will affect them most of all, and it was refreshing hearing from them.

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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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Judges’ Pay

February 11th, 2009 at 9:00 am by David Farrar

The Herald reports:

Prime Minister John Key expects other high-earners paid from the public purse to follow MPs and the Governor-General by asking not to get a pay rise this year.

Parliament yesterday unanimously agreed to ask the Remuneration Authority not to lift MPs’ wages when they are reviewed in the middle of this year.

The Remuneration Authority is responsible for setting the salaries of MPs, judges, local body councillors and public sector bosses.

“I’m sure judges and the like will take a similar view and I’m sure the Remuneration Authority, in reaching their conclusion, will take into consideration that this is a time of restraint and it’s important that we, as well-paid New Zealanders, show leadership,” said Mr Key

Good God, this is about as subtle as firing a flare gun through the door of the court. The PM is basically telling Judges to suck it up and also ask for a nil pay rise.

John has to be careful here. Trying to pressure Judges into a nil pay rise, isn’t that far removed from trying to pressure them into a pay cut. And in real terms, a nil increase is a pay cut. The motives are good, but perhaps the Attorney-General could point out to the Prime Minister that rather useful piece of law known as The Constitution Act 1986:

24 Salaries of Judges not to be reduced
  • The salary of a Judge of the High Court shall not be reduced during the continuance of the Judge’s commission.

Dean Knight also blogs on this issue, and suggests freezing Judges salaries could border on unconstitutional.

John did say he admired Muldoon when he was at school. Hopefully admiration does not become emulation!

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Previewing Waitangi Day

February 4th, 2009 at 1:00 pm by David Farrar

AUT History Professor Paul Moon previews Waitangi Day:

Few people will miss the bad old days, when our national day was punctured by protests, revealing one of the less edifying sides of our country’s character.

Much of the new calmness that has descended on Waitangi Day can be attributed to John Key who, as Prime Minister-in-waiting, allayed fears about how a National Government would deal with Maori issues in general and who, on being elected, followed through with his commitment to inclusion by inviting the Maori Party to have a role in his administration.

It is due to this expected calm, that Taiuni’s Maori King is attending for the first time.

So now that the new age of co-operation has dawned, what is the future for the Treaty? The Government has made it clear that it is dedicated to a deadline for resolving historical claims, and so it is time to start looking to a post-Waitangi Tribunal era for the Treaty.

There will be some losers in this. A coterie of lawyers – fleshy-lipped from years of sucking healthy fees from the claims process – will be left looking elsewhere for sources of income. But it is unlikely that many people will evince much sympathy at their plight.

Personally I think 2014 to settle all outstanding claims may be overly ambitious, and won’t be surprised if it stretches out a bit beyond that. But I do expect that finally all claims will be settled between say 1990 and 2020.

The next challenge will be in considering whether the Treaty belongs in some formal constitution that will no doubt be devised in the next few decades (can I hear the sound of lawyers again rubbing their hands?).

This is a much more complex issue than it sounds, though. The Treaty of Waitangi was an agreement between two sovereign nations, and was not initially intended to serve as an internal constitutional document.

This is a critical point. It was, well a Treaty, not a constitution designed to be supreme law.  A constitution has to be voted on (well maybe not in Fiji but here) and accepted by either a super-majority of Parliament or by the people at large.

Someone once suggested that if you look at the United States, our Treaty of Waitangi is more akin to the Declaration of Independence (which has no legal standing) than the Constutition and Bill of Rights. The Declaration of Independence is an important founding document, but there is no constitutional right to the pursuit of happiness :-)

Not that I am against any Constitution for NZ possibly having some recognition of the Treaty, but that is very different from just declaring the Treaty as part of the supreme law.

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Peter Dunne on Constutional Issues

February 3rd, 2009 at 2:00 pm by David Farrar

Peter Dunne has blogged his wishlist/policy for constitutional issues. Worth taking them one at a time.

A referendum on the future of MMP, in 2010, to allow the New Zealand people to review the effectiveness of the system to date

Is going to happen as was an election promise. Timing not certain though.

A referendum on the future of Maori seats in Parliament to be held in conjunction with the MMP referendum, with a view to abolishing the seats by 2014. This would give effect to the recommendation in the 1986 Royal Commission on the Electoral System.

I do support implementing the Royal Commission’s recommendations, but you need to do all three of their outstanding recommendations – reduce the threshold from 5% to 4%, waive the threshold for Maori parties and then abolish the Maori seats. I think a waived threshold is a superior way to have Maori representation than separate seats.

Moving towards New Zealand becoming a republic within the Commonwealth by 2017, with a referendum in this term of Parliament on having our own Head of State.

No surprise I support this one, but I doubt a referendum will occur in the near future.

Establish a New Zealand Day separate from Waitangi Day to celebrate our nation’s history, multicultural society.

I support this one strongly. I think Waitangi Day should stay, but it would be good to have a New Zealand Day also that is celebrated like national days are in Australia, France and the US. A possible date for this would be Dominion Day in mid September.

Investigate an extension of the Parliamentary term to four years, with a fixed election day.

Again support both of these. The second one is a bit harder than the first, but not impossible. A longer term would lead to much better policy making.

Introduce a Multicultural Act, similar to Canada, for the preservation and enhancement of multiculturalism in New Zealand.

Not so sure on this one. We are already obviously a multicultural society and have anti-discrimination laws. I’m sceptical of the benefits of such a law.

Ensure that school pupils understand their civic rights and responsibilities, the structure of the New Zealand Parliament and of Local Government and their means of access to them.

I would hope this gets covered in senior years already.

Nationally televise the Youth Parliament to give credence to the efforts of young people to lift the bar.

Now we have in house TV in Parliament, I would hope this could be done for almost no cost on Sky.

Require immigrants to take a civics course as part of becoming a New Zealand citizen, to promote civics understanding and teach immigrants what it is to be a “Kiwi” & what the norms & expectations of New Zealand society are.

Very good idea. Ideally some of this should be done even before they apply, so immigrants get as much information as possible to decide if they will be happy here.

Introduce a graded system towards citizenship to develop the idea that citizenship is a privilege and not a right.

Yes, but more than that we need to look at whether certain entitlements should be reserved to citizens, rather than all permament residents. There is little incentive for people living here to become a citizen.

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