The students’ constitution

September 7th, 2012 at 10:00 am by David Farrar

Isaac Davison at NZ Herald reports:

The Waitangi Tribunal would have binding powers to remedy Treaty breaches in a written constitution drawn up by 50 of the country’s brightest young people.

The draft constitution, developed by law, history and communications students at Parliament, also called for New Zealand to become a republic and for four-year parliamentary terms.

I agree with a four year term (essential in fact) and a republic. The Treaty issue is more difficult.

Lead facilitator Dean Knight, from Victoria University Law School, said the group made it very clear that the Treaty of Waitangi should be central to a new constitution.

The final document, which is published online today, said: “The tribunal may provide a remedy to a claimant if a breach of a right arises from a breach of the principles of Te Tiriti.”

Mr Knight noted that the gathering did not reach a consensus on this clause. “What they’re signalling is enhanced powers for the Treaty of Waitangi, moving towards binding recommendations, but not necessarily going as far as striking down legislation.”

At present, the tribunal could make recommendations which Government could choose to ignore.

Otago University law student Louis Chambers said the biggest sticking point in developing the document was how strong the constitution would be. “We had to ask: ‘Is the constitution a symbolic document that guides the New Zealand public or is it something that you can actually go to the courts and enforce if it is not complied with?”‘

The group eventually decided that the Bill of Rights would be strengthened, and the Waitangi Tribunal would be given greater powers. But ultimate responsibility would be left to Government, and the judiciary would not be able to declare any law invalid if it breached the constitution.

I support there being a written constitution. Having seen a Government retrospectively amend the Electoral Act to keep a Minister in Parliament, I am convinced we need safeguards from a non-benign Government.

I’m not against the Treaty of Waitangi being part of a constitution, but with two caveats.

  1. It must be the Treaty itself in the constitution, not these nebulous “principles of the Treaty” that have taken a life of their own.
  2. The constitution, and hence the Treaty, must be amendable

You can not put something into constitutional or supreme law, which is unamendable. The US Constitution and Bill of Rights is amendable. The US Declaration of Independence is not, and hence has no status in law.

If people want the Treaty to be part of our constitution, they have to provide for a mechanism which can update it


The Constitutional Advisory Panel

August 4th, 2011 at 1:18 pm by David Farrar

Bill English and Pita Sharples have announced the membership of the Constitutional Advisory Panel:

The Panel will be co-chaired by Emeritus Professor John Burrows and Sir Tipene O’Regan, of Ngāi Tahu.  The other members are:

  • Peter Chin
  • Deborah Coddington
  • Hon Dr Michael Cullen
  • Hon John Luxton
  • Bernice Mene
  • Dr Leonie Pihama
  • Hinurewa Poutu
  • Professor Linda Smith
  • Peter Tennent
  • Emeritus Professor Ranginui Walker

This will surprise some people but I think including Dr Cullen is a brilliant move. Not because I necessarily will agree with his views. But panels like these has a habit of producing worthy but useless reports which try to lay down principles for the perfect constitution, and they become door stops.

Dr Cullen’s presence (and others) should help ensure that the panel will actually come up with some proposed reforms which are actually achievable, if the public support them.

I hated Cullen’s appointment to NZ Post – partly because of the timing, but partly because National had fought several elections railing against his economic management, so giving him the chair of our biggest SEO was a slap in the face for many National supporters.

But a role like this one, I think is much more appropriate, and Dr Cullen will I think play a very useful role in it. The issues they are looking at include:

the size of Parliament, the length of the electoral term, Māori representation, the role of the Treaty of Waitangi and whether New Zealand needs a written constitution.

Also pleased to see Deborah Coddington and John Luxton there. Again, a panel with nothing but academics would be less likely to succeed.

But academics are not bad per se, and Professor Burrows as a co-chair is also an inspired choice. He is widely respected, and has done some excellent work at the Law Commission. He has a lot of experience at taking complex issues, and turning them into specific proposed law changes.

Likewise Sir Tipene has a good track record of making things happen, and a necessary degree of pragmatism.

Peter Chin seems a solid choice and a former Mayor will have some good perspectives, as will Peter Tennent.

I don’t really know much about Bernice Mene (except that she was a great netballer) or Dr Pihama, Ms Poutu or Professor Smith. Dr Walker is more well known, and his inclusion is no surprise.

As a constitutional geek, I’m really pleased to see some important issues will be debated and discussed. I doubt I will like everything they recommend, or even most of it. But I definitely plan to be involved in the process, and will next year cover the issuees extensively on Kiwiblog.