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.

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, Rights – such 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 government – New 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.