Hehir argues against a written constitution

April 13th, 2016 at 2:00 pm by David Farrar

Liam Hehir writes:

Earlier this year, American Supreme Court Justice Antonin Scalia died while holidaying in Texas. 

As one of the brightest lights in the conservative legal movement, the process of replacing him is going to be partisan, ugly, public and potentially quite vicious. The American judiciary is just one more battlefield in the culture wars.

By contrast, judicial appointments here barely make the news. Few New Zealanders – even political trainspotters – would be able to name all of our present Supreme Court justices. That is as things should be, since our courts have the trust of the public when it comes to the neutral and impartial interpretation and enforcement of the law.

It is true that a written constitution would increase the importance of the Supreme Court and make partisan politics more of an issue for it. However I’d argue we already have that to some degree – but more quietly.

One of the central outcomes of having an unwritten constitution is parliamentary sovereignty. Aside from some minor provisions in the Electoral Act, Parliament can pass any law it likes.

It can change the entrenched provisions also – just needs to amend the entrenching section first.

The provisions of the constitution, not Parliament, would be supreme. And since the meaning of the constitution would be determined by judges, this would necessarily elevate our unelected courts over our elected lawmakers.

Yep and I trust them more.

The American constitution is a very concise document, with its seven articles and 27 amendments clocking in at fewer than 8,000 words. But despite that brevity, the document has been stretched by the courts to cover such controversial matters as abortion, gay marriage and capital punishment. The actual text of the constitution neither prohibits nor mandates any of these things – but judges have allocated to themselves the final say on these matters to the exclusion of the people and their representatives.

The original constitution didn’t. The Bill of Rights did. One could not have the Bill of Rights in a constitution. Or do what Canada does and allow Parliament to over-ride the Supreme Court using the “Notwithstanding” clause.

Palmer calls for a written constitution

April 6th, 2016 at 4:00 pm by David Farrar

Stuff reports:

It’s time for New Zealand to draw up its own constitution and a 40-page document would be enough, says constitutional law expert and former prime minister Sir Geoffrey Palmer.

Palmer has long advocated greater attention to the country’s constitutional laws but said he had reached “a new plateau”. 

In Nelson to address the Spirited Conversations group on this subject, he said he hadn’t before advocated a full written constitution.

The architect of the 1986 Constitution Act and the 1990 Bill of Rights Act, he said an entrenched bill of rights was no longer enough. 

I support a written constitution.

This would be a significant change, as implicitly or explicitly it would give the courts the power to strike down laws that breach the constitution.

I used to be opposed to such a power, but changed my mind around a decade ago.

When the Clark Government had Parliament retrospectively amend the Electoral Act so one of their MPs could avoid a by-election, after he had breached the Act – that was when I realised that you need stronger protections against a majority in Parliament. A Parliament that can retrospectively amend the Electoral Act to avoid a by-election, is one that could change the term of Parliament to ten years without consultation.

So I think we do need some laws that MPs can’t change or ignore at whim.

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.

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


Why sometimes it is personal

October 14th, 2008 at 12:18 pm by David Farrar

Most of my opposition to Helen Clark is political. I don’t like her policies. I also think that she probably thinks ethics is a nice county in England. But again that is political not personal. I am quite capable of acknowledging her strengths, her skills and her desire to do what she thinks is best for NZ – even though I disagree whether or not they are.

I’m not a big hater of people. Life is too short. If people are pleasant to me, I’ll be pleasant to them. Most of my interactions with Labour MPs are very reasonable, and I even have one senior Minister who helpfully e-mails me with the odd correction to the blog. I always

That is my default position. But there are times when my rational calm self gets submerged and I yell abuse at the newspaper or TV set as I read something outraegous. For that period of time it is personal, and I briefly loathe someone. This doesn’t happen very often.

Reading Helen’s response to the issue of the Government refusing to allow the Reserve Bank to brief Key and English, was one  of those moments. As the Dom Post puts it:

7/10 “I think we should have been consulted because of the magnitude of what’s going on today.”

National leader John Key reminds Helen Clark and Michael Cullen that in 3 1/2-weeks he could be the one left holding the baby over any decisions made in the final four weeks before a possible change of government.

3/10 “I think once again he’s been caught sleeping on the job. He purports to know about international finance markets. If he can pick up so little that he doesn’t pick up that both New Zealand and Australia are likely to move sooner, rather than later, on a deposit guarantee scheme, then frankly, you wonder what that experience is worth.”

Labour leader Helen Clark fires a cheap shot back.

It is more than a cheap shot.My thoughts on reading it were unprintable.

It is outrageous that her Government is so dismissive of doing the right thing, and worse suggests it is the fault of the Opposition Leader that she and Cullen blocked officials from being able to do a briefing. It reminds me of all the other constutional conventions that have trampled over:

  • Consultation on quasi-judicial appointments such as Human Rights Commissioners
  • Retrospectively amending the Electoral Act to protect a Minister who vacated his seat
  • Shattering the bipartisan consensus on electoral law reform
  • Continuing to make significant appointments within the final 90 days
  • Attacking independent officers who try to hold them to account such as the Auditor-General, Chief Electoral Officer and Serious Fraud Office Director
  • And now announcing a $150 billion guarantee four weeks before an election, and refusing to let officials brief the Opposition

Stuff like this really does anger me. That is because it is permanent damage. You destroy a convention and it is very very hard to put it back together. It is an eternal lowering of the standards. It is because of these shameful actions that I have changed my mind 100% on having a written constitution.

I used to be totally against having one. I trusted parties and PMs to respect the unwritten rules and conventions that had served us for over a hundred years and the UK for centuries before that. I no longer have that trust. Parliamentary supremacy means the Government can retrospectively amend the Electoral Act – and have done so for the most partisan of reasons. It does not get much worse than that on a sliding scale. This is why it is vital that at some stage we the people vote into existence a supreme law or constitution that not even a Helen Clark can ignore or amend. A law that allows Judges to strike down a Government’s actions or even a Parliament’s actions if they act in an undemocratic way.

If we ever manage to get such a supreme law, it should be dedicated to Helen Clark and Robert Muldoon. They have proved why it is necessary.