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A New Zealand Constitution: Starter for Discussion

We need a Constitution – badly. As covered in our policy release #4 Democracy Reset, confidence in government and faith in our democracy is falling away rapidly, particularly amongst those generations younger than the Baby Boomers. The unbridled power of Cabinet and the implied loss of sovereignty of parliament are both reasons New Zealanders regard voting as futile. A Constitution would make it loud and clear to politicians what it is New Zealanders value and what we require to be protected.  Restoring an Upper House would ensure that parliaments sovereignty is protected and the unbridled power of Cabinet, ends. Constitutions and Upper Houses are essential features of almost all democracies.

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Yesterday we published the results of a survey we conducted on what is meant by Kiwi values. Your responses highlighted honesty, respect, fairness, and freedom – all values that can be reflected in a Constitution by it incorporating the provisions of the NZ Bill of Rights and Human Rights Act.

Also strong in those results from our values survey was environmental protection. That came across loud and clear – whether it be access to bush and water, sustainability of fisheries, protection of ecosystems – all are valued highly by New Zealanders. As is freedom and equality of opportunity – often seen as opposites, freedom to what you like but ensuring that’s the same for everyone, is clearly a Kiwi value. And finally the importance of community, enabling local common interests to be pusued, is a big deal.

So how might all this be reflected in a written Constitution that gives parliament its terms of reference and which is staunchly defended by an Upper House that has the power to highlight breaches of constitutional rights that proposed legislation threatens? Remember a Constitution is changeable – but only by the people, not by the parliament. It is the people’s protection from the vagaries of political opportunism.

This following set of provisions are the standard ones drawn from our Bill of Rights, Human Rights Act and the Treaty of Waitangi but augmented where noted.

Individual Freedoms, Rightssuch as civil rights that include rights to  - life and security, voting, freedom of expression, association, free speech, movement, peaceful assembly, freedom from discrimination, criminal justice and a fair trial, natural justice

Religion – we are a secular society, religious freedom is fine but only up to a point. That point is where it clashes with our human rights and anti-discrimination legislation. At that point religious mores are subject to rights under the Constitution. One of that set of rights is the rights of the child which raises the question of what limits should there be on parents to recruit children into their religion. It is an area worthy of a national discussion.

The Treaty of Waitangi – this is a unique and essential element of our Constitution. It is the founding document of this society and already features in over 300 pieces of legislation and regulation. The Treaty must be honoured so that both societies – tangatawhenua and the rest of us, can live in harmony as New Zealanders, with a duty of care between the signatories, ensuring each community can fulfil its aspirations as the Treaty and its principles outline.

Women’s Rights – New Zealand has a proud record of protecting women’s rights and while we are by no means perfect in this regard, there is a commitment to continually improve our record.

Ethnic rights – New Zealand is a multicultural society and strongly defends the rights of its ethnicities to protect their cultural values and customs. This is subject only to the Constitution which outlaws discrimination, restricts the influence of religious mores, ….etc. New citizens need to understand that while New Zealand is multicultural, it has a bicultural founding document that binds all New Zealanders who are not tangatawhenua to defend the treaty and its principles.

Transparent governmentNew Zealand has a strong history of good governance, with low levels of public sector corruption. Public sector advice needs to be in the public interest and able to be given freely and frankly. There must be limits on the ability of Ministerial offices to dictate what advice they will receive and their ability to suppress and redact Official Information Act requests.

Equal Opportunity - This includes equal effective access to publicly funded health and education services. Necessarily this requires an element of cultural and ethnic empathy with the recipients of those services – including language, customary and traditional practices. For most minorities, this is an aspirational objective; resource constraints necessarily limit the ability to perfectly replicate the practices of places of origin. But a reasonable effort must be made by the public sector. The exception is for Maori, who are guaranteed this under the Treaty and for whom Whānau Ora is an example of its practice in the social services of health, education, housing, employment and income

Rights of the Child – these are strongly protected in New Zealand as well, again something that not all societies do, so all permanent residents need to be aware of this. Having said that, child poverty here is unacceptably high and if we enforced our child rights, more would have to be done simply not to be in breach of our Constitution. So there’s plenty of room to walk the talk if constitutionalal rights are continually highlighted as our Democracy Reset policy proposes . TOP wants to see equal opportunity for children enshrined in the Constitution, with that covering access to healthcare, housing and schooling. And we very much like the Brazilian Constitutional approach wherein any advertising to children is regarded as child abuse.

Rights of Nature – As per the results from our values survey, New Zealand needs to formally recognise the rights of endemic ecosystems to survive and thrive. It is overdue. The constitutions of Bolivia and Ecuador provide precedents for how this right can be defined and protected. For New Zealand, whose natural capital contributes significantly to our well-being, this constitutional protection is critical.

A written Constitution is only of value if the population knows what it says and in essence can cite it at will. Its most common from cannot be 40 pages, it must be able to be summarised in 1 or 2 pages at most, in plain English, not Constitutional lawyers’ lexicon, and it must be taught to all New Zealanders – either at primary school as the civics curriculum or as a prerequisite for residency for any newcomers. Without that set of values popularly supported, our democracy will be usurped by political elites and the disenfranchisement we’re seeing now, get worse.

What’s above is merely a draft for discussion. Feel free to rip into it. 

Showing 21 reactions

  • Ngawai Robinson
    commented 2017-02-20 00:19:50 +1300
    Kia ora TOP,
    Here’s my perspective on the Treaty; Tangata whenua have the right to monitor the Crown to ensure that our written partnership promises are kept…period. The United Nations Declaration on the Rights of Indigenous Peoples, also reinforced by the Treaty of Waitangi. Together they are are key legal tools Tangata whenua may utilize to problem solve and to find solutions as the signing partners.

    Our duty of care isn’t limited to our natural environment, it includes the wellbeing of all New Zealanders in our communities.

    Secondly, the reason why we monitor our Treaty partner is clear. The normalization of ethnic inequalities in health has been repeatedly played out over many decades, I needn’t explain the statistics, you’re all fully aware of the numbers I’m talking about. Maori health expectations and the normalization of inequality over decades wasn’t something governments were willing to unpack, numerous excuses lead to their in-actions over time.

    Thirdly, human rights charters recognize that where systemic inequalities exist, the government has a duty of care as the governing Treaty partner to provide affirmative interventions and programmes’ such as but not limited to “Whanau ora”.

    The Bill of Rights Act 1990, NZ Human Rights Act 1993, and United Nations Declaration on the Rights of Indigenous Peoples 1965, 1980, 2001 are legal remedies, or tools tangata whenua may utilize to prevent ongoing and persistent inequalities in all economic fields between Maori and non Maori, but in particular in the health arena.

    I like the work you’re doing TOP, keep informing the uninformed the newcomers and the rest of us, what a healthy discussion!
  • Guy Hatchard
    commented 2017-02-18 15:41:20 +1300
    The preponderance of regulatory bills that parliament has passed means that very often committees of appointees decide on how law is enacted. For example the current draft of the Natural Health Products bill has a clause which prevents anyone from going to a court of law if they feel unfairly treated by the proposed natural health products regulatory authority. Appointed regulatory authorities are invariably dominated by industry insiders who facilitate the commercial imperatives of their erstwhile profession. The Bill of Rights as it stands does little to protect broad rights such as health freedoms. Practices which are mandated by government and which harm health do not fall under the current Bill of Rights protections, only if they cause loss of life. Moreover the removal of the right of appeal to the Privy Council, has disconnected NZ law from notions of common law and fairness which underpin English jurisprudence. The result is that NZ judges do an in fact cannot challenge the right of parliament to pass any law they wish to, even if it is patently unfair or worse untrue. Thus the lack of a written NZ constitution cedes the supremacy of truth, health, and justice.
  • David George
    commented 2017-02-18 12:21:24 +1300
    Agree M8… we always need a vision and a purpose… that our children and mokapuna can latch on to…
    no harm in booking a hall or a conference centre somewhere… and rotating…
  • Steve Cox
    commented 2017-02-18 11:01:10 +1300
    Hi David
    You are heading in the same direction as my thoughts on an Upper House.
    As a working name I’d call it the House of Interests. It has Maori seats, religious seats, business seats, union seats, local government seats, etc. Also give the Governor General a seat so they can break a tied vote.
    And here’s the cool bit. The groups that are represented have to fund the House. No turning it into a trough of tax-payer funded largesse.
  • David George
    commented 2017-02-18 10:27:39 +1300
    Maybe not a physical House of Lord and Ladies. A caucus or whanau instead of a single guv? Maybe, if it was effective….
    We have numerous ginger groups and lobby groups around the place. And ia marae, ia marae… but who will represent who? And who will have a mandate?
  • steve pivac
    commented 2017-02-17 18:09:59 +1300
    Good work, i like it..bit reluctant to indulge in an ‘upper house’
    What is it’s purpose?
    If it is to guard lower house legislation against the Constitution, well and good, I approve.
    stevep, Taranaki
  • Steve Cox
    commented 2017-02-17 17:57:23 +1300
    Is there a constitutional lawyer in the house?
    A treaty is an agreement between two or more sovereign peoples. And only the signatories, and their successors may seek redress from the other party for failing to adhere to the treaty. I cannot sue Australia if it breaks a condition of Closer Economic Relations, but NZ can.
    Now a constitution. This is the “agreement” between a government and it’s citizens. Citizens may sue their government if it breaks the rules (constitution).
    If you then go and put a treaty into a constitution do you not then allow any citizen to sue any party to that treaty?
    Now if what I have suggested is true then Maoridom is opened to being sued by any citizen for not honouring the Treaty.

    Change of subject, sort of. In the Palmer/Butler constitution they state that not only is there the Treaty but also it’s “spirit, intent and principles”. TOP also throws in the principles. There were no principles until the 1970’s and I for one do not recall the Treaty being re-signed then to include them. And what are these principles? According to Wikipedia there are seven and five of them (depending on source). According to Te Ara there are eleven. Lawyer heaven.
    What was the intent? Look at history and judge the intent by all those other treaties the white man was signing with indigenous peoples and tell me how many of them were honoured. Mostly the intent behind them had nothing to do with honesty or complying with the treaty. They were intended to give the white man a foot in the door, and once they had sufficient strength to then manufacture a reason to seize native lands as punishment for the natives having allegedly broken the treaty. Sound familiar as to what actually happened here in NZ?
    Do we adjudge intent then by 19th century norms, or do we give it a nice 21st century gloss. Again lawyer heaven as what intent means. The same with spirit – what does it mean?
  • Oliver Krollmann
    commented 2017-02-17 16:54:50 +1300
    I’m not as passionate and black-and-white about it as John, but yes – that’s basically how I think it should work, too. And John is right – MMP provides the proper form of representation for any kind of group with a common view and agenda, based on whatever principles – as we can see emerging right here with TOP. Cementing a bicultural society in a constitution just doesn’t feel modern and completely fair to me. The ToW hasn’t been honoured as it should have been , I get that – but for how long do we drag this out, stick to the old ways, and seek compensation or retribution? Should the losing nations of the many wars in the last century still be paying reparations to the winning nations today, to make good (if they were ever able to)? Not a fair comparison, I accept that – but at some point you should be willing to leave the grievances of the past behind and move on, to boldly go where no country has gone before. Sure, the past wasn’t fair, but shouldn’t we restore fairness by giving everybody the same chance and set of rules? Look at TOP 1, which does just that – tax all income and close tax loopholes. If we applied the current TOP 4 approach to that, we’d have to give all the home owners a break, as many are demanding, because, well, it’s always been this way, and you can’t do this to them now, because they’ve worked so hard for it, and so on, and so forth. So why not the same clean-slate approach here? Am I too naive?
  • John Petrie
    commented 2017-02-17 16:19:27 +1300
    We already have a constitution; a body of constitutional and legal development dating back to the 1680’s, although some would identify the Magna Carta.
    New Zealand is a model of a progressive and caring Western democracy, with modifications to a social framework occurring from our establishment as a part of the old Empire. The Treaty itself is an example of the “New Age” thinking of the time – ensuring a single sovereignty along with one common citizenship. Hence voting rights for the first settlers allowing for their different structure of land ownership, early voting rights for women, etc. Contrast that to the clumsy, unresponsive and downright dangerous consequences of the US Constitution and it’s plethora of amendments.
    Redistributing wealth and universal incomes are singularly great planks for a democratic political movement. TOP economic policies have my enthusiastic support, and my financial balls are in the hands of Gareth’s investment company.
    But the sycophantic acceptance of the “partnership” interpretation of the Treaty leaves me cold. This Rousseauean concept of the noble indigenous savage is no basis for constituting a government or social framework. With MMP we have a vehicle for any group bound together by a common culture, be it Christianity, Islam, Naturists, marijuana reformers or Maoritanga.
    Second to economic reform, the greatest threat to an egalitarian society is the rise of a disaffected, disadvantaged and dispossessed group who are led to believe they deserve to be treated better than the rest of the population. Four legs good, two legs bad becomes “some are more equal than others”. Abolish the Maori seats, remove references to the Treaty from our legal lexicon and complete the Waitangi Tribunal settlements and I’m your man. Continue with this 4th proposal and I am out.
  • Oliver Krollmann
    commented 2017-02-17 16:02:04 +1300
    Good points, Steve. I haven’t read Palmer/Butler yet, but will do so, thanks for the suggestion.
    As for the special treatment of Maoridom, that is something that I struggle with, too. You can argue that making exceptions isn’t providing or restoring fairness for all, and you can also argue that honouring the ToW is in fact restoring fairness – at least to that part of the population. Immigrants like me might find it difficult to wrap their heads around that, particularly because it’s not the 19th century anymore, and things have changed considerably since then. Given the fact that New Zealand wasn’t actually inhabited until 700 to 800 years ago, I tend to look at ALL of us as fairly recent immigrants – some of us just happened to arrive a few hundred years earlier. But we’ve all come here for at least one common reason – a better way of life – so it’d be great if we could enjoy that as one people governed by a common set of values, rights and laws. I apologise if that view offends anyone or seems ignorant or unexperienced or dumb – it probably is, to some extent, as I wasn’t born and didn’t grow up here in this great country.
    As for Trump’s executive order, that would have been equally unlawful if the constitution was just a simple framework that included the right not to be discriminated because of religion or origin (amongst many others, of course). Keeping it simple doesn’t have to mean that it becomes vague, if the basic values and rights are well-defined.
  • Steve Cox
    commented 2017-02-17 14:28:46 +1300
    Hi Olliver
    Have you read the Palmer/Butler proposed constitution? It’s fifty pages long and is what might be called a complete constitution. But for two constitutional lawyers it includes some sloppy work.

    The workability of a constitution is going to revolve around how well it is written. A two pager isn’t long enough unless it is the summary. The post above would use up most of those two pages. Do you think it covers things well?

    If we look at TOP’s comments above we have already run into an issue: – “Equal Opportunity … The exception is for Maori, who are guaranteed this under the Treaty and for whom Whānau Ora is an example of its practice in the social services of health, education, housing, employment and income”. Maori may choose between (or use both of) Whānau Ora or the standard services available to non-Maori New Zealanders. It is not equal opportunity if there is an exception right from the start.

    I’ve thought for many years now that we should have an Upper House but just how it is constituted and how it interacts with Parliament is vital to its success. More detail on request.

    Hi Winston
    “Evidence for constitutions stopping revolutions or tyranny is virtually nil”. That is a bit of a negative proof argument. Using the current evidence in the US we see the courts striking down Trump’s immigration orders because they are un-constitutional. Had the courts said OK would other actions follow in the future to make the US a tyranny? Maybe. Maybe the scare of that fight might be enough to stop other tyrannical actions. Maybe future actions would get knocked back by the courts stopping any tyranny in its tracks.

    Unfortunately we are left with history’s judgement that the constitution in a specific case did not stop a tyranny. I would ask your question from the other end. How many countries with constitutions have not succumbed to a revolution or tyranny?
  • Paul King
    commented 2017-02-17 13:58:31 +1300
    I would like to see more on the Treaty of Waitangi – so far my reading and understanding of it was that it does no more than spell out that Maori will continue to retain ownership of the tangible and intangible assets they owned before signing the treaty – in other words preserving the exact same rights any other British subjects already had over their own assets. Rather than intending to set up an ongoing Partnership between permanently distinct sovereign entities, the treaty provides for a merger of the two. The separate sovereignty of the Maori chiefs was effectively translated into tradable land ownership in British terms, with all sovereignty passed to the crown.
  • Paul Callister
    commented 2017-02-17 13:57:22 +1300
    So the overall them is ‘the opportunity for everyone to get a fair go’. And we dont want a Trump type leader in NZ. But you have a proposed constitution that protects ’women’s rights’ and ’chidren’s rights’ But what about ’men’s rights"?It might seem that men still rule society, filling most top positions. But they also fill the bottom tier too whether its the prison population, who fails at school, and who tends to die younger including through suicide. And in some areas of law, such as paid parental leave, they do not have the same rights as women. Trump picked up the support of many low skill males who had been screwed over by an economy which had turned against them. Perhaps we should be focussing on human rights rather than trying to divide the population up into categories within which there is a mix of both advantage and disadvantage.
  • Oliver Krollmann
    commented 2017-02-17 13:26:58 +1300
    I was in full support of a constitution, until I read Winston Wolfe’s comment below. It made me think that a constitution, particularly if it is the size of a tome, might actually be detrimental to progress and change of values in the modern world because too much might have been set in stone. Constitutions are also even more difficult to change or amend than individual laws or rights – I’ve seen it happen in Germany, where even a great coalition of the two leading parties with the required 2/3 majority couldn’t get any change underway.
    Maybe it is smarter to look at something new and simple, like a two-pager of values and basic rights that are guaranteed and cannot be violated but leave enough wiggle room for progress, cultural changes etc. And conflicts don’t have to end up in the courts all the time – this is where the regulatory effect of an Upper House would come in, to make sure that any legislation is in line with the core values and rights but also up to the task to deal with the issues of the day.
  • Oliver Krollmann
    followed this page 2017-02-17 13:05:03 +1300
  • A Steve in Auckland
    commented 2017-02-17 08:22:57 +1300
    I think the lack of confidence in government – to the extent it exists in NZ – is due to three things. First, the constant drumbeat of American hostility to THEIR government because their democracy is so awful and it doesn’t really represent voters very well, and,

    Second, the relative ‘laissez faire’ stance of our current government as tends to leave really important things like housing and climate change to what it broadly sees as market forces. The market has failed over and over on both counts….and the government has been very slow to appreciate this. On climate change they are utterly useless.

    Thirdly, most people didn’t vote for this government and it is only in power thanks to the rorting of MMP in Epsom and Ohariu-Belmont with ‘fake’ parties giving national a two-seat boost over their actual vote entitlement. The Royal Commissions made it clear voters don’t want the one-seat cheat left in place and would prefer a lower threshold overall. The government did nothing because they see remaining on office as being dependent on cheating MMP.

    It won’t take much to tip them out. To address the issues outlined just dont’ vote for National or their two zombie parties.
  • Winston wolfe
    commented 2017-02-17 07:24:25 +1300
    I say don’t do it. Constitutions often act as a block on innovation or evolving morality. One of your other posters has pointed to AI, others may point to evolving recognition of the need to protect environmental interests. Nations with constitutions find they act as a block to becoming more inclusive and more ethical – ending slavery, racial equality, equal rights for women, and LGBTQ rights have all been obstructed by antiquated morals enshrined in obsolete but obstructive constitutions. Evidence for constitutions stopping revolutions or tyranny is virtually nil – from Rome to banana republics there is little evidence they provide any real protection against despotism. The three nations without a constitution (New Zealand, the UK and Israel) have on the other hand been unusually stable. Constitutions offer little practical protection – as your illustration of Trump shows, even the land with the most promoted constitution in the world still has issues, and I’d suggest more issues than we do. So why bother? Fixing what is not broken will be another flag debate and only make things worse.
  • Roy Vannini
    commented 2017-02-17 04:26:23 +1300
    Read the the following four books and then THINK.
    Rise of the Robots: Technology and the Threat of a Jobless Future, Martin Ford
    Sapiens: A Brief History of Humankind, Yuval Noah Harari
    Homo Deus A Brief History of Tomorrow, Yuval Noah Harari
    The Shock Doctrine: The Rise of Disaster Capitalism, Naomi Klein
  • Scott Smith
    commented 2017-02-16 18:31:34 +1300
    Peter H – Nature can have rights (and responsibilities) if it is given “personhood”. This is similar to how we give corporations and organisations rights. The Whanganui River example is a good one. I believe that giving natural systems “rights” is much more powerful than the approach currently in favour in many countries, which is treat the natural system (say a river) as an asset – with social, environmental and financial capital values. To me this is always going to lead to the degradation of the natural system. Absolute limits on how we use and abuse nature need to be set otherwise they can always be compromised away for fiscal expediency. The notion of personhood, including “rights” and “responsibilities” is a much more powerful tool.
  • Steve Cox
    commented 2017-02-16 17:55:39 +1300
    Constitution? Yes.
    A two page summary? Yes.
    But the full constitution does need to be 40 pages, or however many, long.
    The briefer an article is in the constitution the more likely it will end up being interpreted by the Supreme Court. We should use the evidence of the US to guide us to avoid this.
    Lets use Freedom of Movement as an example. Does that mean you are entitled to a passport? Because without one you are deprived of your freedom to move anywhere else in the world. So what happens if you’re off to fight for ISIS?
    As happens with some high country land that is bought by a foreign owner and gets closed off to trampers. Is there a line between freedom of movement and quiet possession of private property?
    A short constitution would have both those examples before the Supreme Court many times as the individual circumstances were argued. A fuller constitution cannot cover every possibility but may save much litigation.
  • Peter Humphrey
    commented 2017-02-16 17:34:23 +1300
    A worthy conversation for sure, and one requiring considerable time and effort. But what’s with all these ‘rights’? Women’s Rights, Ethnic rights, Equal Opportunity, Rights of the Child etc, surely should all be covered under a carefully drafted section on ‘Individual Freedoms and Rights’.

    And ‘Rights of Nature’? How can ‘nature’ or ‘the environment’ have rights? Along with ‘rights’ come ‘responsibilities’… and surely taking care of ‘nature’ is a fundamental human responsibility.

    I’ll be looking forward to further input..

    PeterH