If Andrew's constitutional blog leaves you wanting more, you won't be disappointed by this post and its attempt to spark some debate

While Andrew has written a post  superior to anything I can offer, I too am going to post on the report released yesterday by the Constitutional Advisory Panel... because it's my blog and I can. And anyway, it's the first government review I've ever submitted to, so I'm interested. And a little disappointed.

The findings revolve around the importance of continuing the constitutional conversation and other, frankly, woolly but nothingish sentiments that almost everyone will agree on. I'm disappointed because I think groups such as this should always try to be braver, to challenge the public imagination. Because as it stands, the handful of news stories in the past 12 hours – essentially reporting that the Treaty need not be part of any consitition. Yet – is as much as most New Zealanders will hear about the years of work put in.

The truth is, that while stressing the need for a continued conversation around these issues, the panel has done little to stimulate such a conversation.

Am I being overly harsh? A little. But then I want to actually stimulate some debate, so come along with me.

It's no bad thing to have a group wandering the country getting some pretty full venues so that people can talk about these issues; there's little enough awareness and plenty of ill-informed judgment around them. So let's not fret about the money spent on this. The problem is that the conversation doesn't go any further. At least not for adults.

To give credit to the group, it has, as I understand it, created educational resources and its member will hope they somehow work their way into our schools so that we eventually have more civically aware citizens. The urgings are there in the report, so hopefully those who can enact those wishes are listening. That will be a useful legacy at least, because most New Zealanders have little understanding of our constitution and how it works.

Maybe these resources will be available to adults as well, but short of having them sent to every home like the 1954 Mazengarb report, I can't imagine them being a best-seller with the likes of you and me.

Where I hoped the panel would be braver is around the Treaty of Waitangi and its talk of entrenchment. Instead it has merely reflected the mixed views of the public back to the public. To some extent its terms of reference were limiting, given it was meant to only "stimulate public debate" and then "report to Ministers with advice on the constitutional topics, including any points of broad consensus where further work is recommended".

Simply offering advice and recommendations where there was broad consensus is pretty limiting. But such panels are a rare opportunity to push the envelope; sometimes a few controversial positions need to be pushed forward as a way of stimulating that debate. That didn't happen in this case.

So to what was concluded: That there's no broad support for a supreme constitution but "considerable support for entrenching elements of the constitution". And that the Treaty of Waitangi need not be part of any constitution. Instead, there needs to be more conversations about future options and what might... zzzzzzzz.

Perhaps that's a fair reflection of the national mood at the moment. There's little heat around it and even less consensus. But here's a way to spark some debate just by pointing out the obvious – of course the Treaty will be part of any constitution that may one day be created. I don't see any alternative being politically tenable and the panel should have had the courage to lay spell out.

On the other hand, if you're not even going to recommend a single written constitution, there's not much point recommending that the Treaty be part of something you're not asking for.

It's pretty weak too to talk about entrenchment but then not get into the detail of it. This is how it was reported:

"There was no significant support for a supreme fully entrenched written constitution, whichempowers judges to strike down legislation and that can only be amended through specifiedprocesses. Support appears to lie, for now, with contested issues being decided in Parliament through the legislative process or other negotiated processes rather than by the courts. 

There may be support for a single written constitution which sets out a short and simple set of standards, but without additional judicial powers. This would leave the Executive and Parliament flexibility to decide which policies, within those standards, best suit the circumstances of the day."

Well, at least that's something. I'm amongst the latter group offering supporting for some short, single statute setting out a "simple set of standards". I think there are some collective values we should be entrenching or somehow firming up in a constitutional way.

But even if you disagree with that, don't you want to know more about how that might work? The panel's response was rather cursory:

A key reason for supporting a written constitution is that it could be entrenched to protect important rights, principles and institutions. Entrenchment requires a special process for changing the constitution, ensuring that citizens could participate in and endorse any constitutional change, either directly through a referendum or by a special majority, say 75%, of elected representatives.

Options discussed included:

• entrenching specific elements of the existing arrangements, such as the New Zealand Bill of Rights Act 1990 and the Constitution Act 1986

• entrenching a consolidation of existing rules and principles

And that's it. That's something worthy of further explanation.

Still, here's hoping the panel's work at least finds its way into the classrooms of the country so that this conversation can actually be had... and not just be law professors and old hacks. 

 

Comments (28)

by Andrew Geddis on December 06, 2013
Andrew Geddis

While Andrew has written a post  superior to anything I can offer ...

What - again?

Seriously, but, on your point:

 I'm amongst the latter group offering supporting for some short, single statute setting out a "simple set of standards". I think there are some collective values we should be entrenching or somehow firming up in a constitutional way.

I guess there's two questions here.

The first would be, what would go in here? Let's take even as innocuous and vanilla a statement as "all New Zealanders are equal before the law". If we apply that standard to (say) John Banks or David Cunliffe regarding their little electoral law scrapes, everyone will say "hells, yeah! They ought to have to answer for their actions, just like anyone else." But then try to apply the principle to, say, the Maori seats. Or to Labour's gender-equity policy for its caucus. Or to a policy that younger people should be prioritised for organ transplants over older ones. And so on ... .

Point being, even a "simple set of standards" that reflect "collective values" ends up being highly controversial in particular circumstances. 

That then leads to the secondary question - who will get to decide what these "simple set of standards" that reflect "collective values" require of government? Will it be the courts? Or, will these be "moral signposts" for government alone to interpret and apply without the courts being able to review its decisions (as is the case, say, with Article 45 of the Irish Constitution - which sets out "principles of social policy", and then specifically says that they: "are intended for the general guidance of the [Irish Parliament]. The application of those principles in the making of laws shall be the care of the [Irish Parliament] exclusively, and shall not be cognisable by any Court under any of the provisions of this Constitution.")

 

by Richard Aston on December 06, 2013
Richard Aston

Moral signposts are a fine thing and I am all for them but I wonder if there is a cynical apathy out there that says govts will do whatever they damn well want. That our current govt have not bothered to even draw breath over the assets referendum tells us that is true.  It seems standards without judicial underpinning are a weak option but I think of the very real impact the Treaty of Waitangi has had on our country – and various govts . It has no legal power, is not embedded in constitutional law – as far as I know. What gave the Treaty the mana to effect change?   

by Nick Gibbs on December 07, 2013
Nick Gibbs

@Andrew

That then leads to the secondary question - who will get to decide what these "simple set of standards" that reflect "collective values" require of government?

I'm not busy right now so I can do if you like.



by Andrew Osborn on December 07, 2013
Andrew Osborn

Andrew: But then try to apply the principle to, say, the Maori seats.... 

Bingo!

The ugly, unadorned truth is that there is a raft of legislation in this country which, in a less hospitable regime would be considered highly undemocratic and racist in nature.

(...pause for the flood of comments claiming I'm racist for wanting to remove a race-based franchise...)

I suppose the pragmatic answer is that since there is a fair amount of good will on both sides, we can roll with this anachronism until some undefined point in the future when we can kick it into touch. Yes?

by Andrew Geddis on December 07, 2013
Andrew Geddis

The ugly, unadorned truth is that there is a raft of legislation in this country which, in a less hospitable regime would be considered highly undemocratic and racist in nature.

But we're not in a "less hospitable regime", so the point is ...?

Mine was that for every "simple standard" that reflects some "collective value", there's another that potentially conflicts with it ... as when our desire for equality under the law crashes up against our recognition of Maori as tangata whenua with an ongoing claim to tino rangitiratanga. That conflict inevitably involves some form of compromise (such as the Maori seats, 'though it doesn't necessarily have to take that form) - a compromise that has to be reached by someone. So ... whom?

by Andrew Osborn on December 08, 2013
Andrew Osborn

Andrew: But we're not in a "less hospitable regime", so the point is ...?

I made the point in the paragraph below: 

I suppose the pragmatic answer is that since there is a fair amount of good will on both sides...

The logical conclusion then is that the constitution doesn't matter that much, just as long as there is enough good will.

I'll go one further and suggest that maybe constitutions can be a bit of a handicap in the long run. A good example would be the USA where a bunch of white (slave owning) guys in tall hats wrote a constitution which is still today the legal template for everything and results in some weird supreme court decisions. In the long run you'd want a greater degree of flexibility in running the country's affairs.


by Chris Webster on December 08, 2013
Chris Webster

Tim: Thanks for this post. I too was disappointed with the outcome & the process. I went to two different meetings in two different places. It was boring....zzzz.. no flare-ups .. everyone was so very 'middle-class' polite - not that I have anything against any class of people. I asked some pesky questions which drew some applause - that was not the intention - but later - people (strangers to me) said: 'Well done. You were very brave'.  Huh?

When some brave soul actually posed a question - you could feel their hesitation & hear the uncertainty in their voice. At both meetings there were different panelists. I felt each of the panelists had been given very stern orders to not stray from the brief - & fel back on the policy - this meeting is 'meant to stimulate debate'. This rider was quoted oft - it became a case of watching paint dry - grass growing. Zzzz - Ho hum.

Provocative questions or statemens were obliquely handed over to either the chair or if it mentioned the word 'Maori' or the 'treaty' then it was again deferred to a panel member who was either a 'Maori citizen' & or a person with well-known analysis of the 'treaty'.   Any Panel member should have taken the question.

I agree with Sir Tipene (IV @ radionz/Waateanews that 'some parts of society suspect that any such (treaty) education is a 'left-tish' plot - but there is a problem when the community does not understand its own history'.

He too is looking for 'more intelligent discourse about the future of the treaty rather than the simplistic slogans that we basically live off'.

Which is all very nice & well. But these kinds of responses did not really address the issues that are deeply felt in many communities & which people struggled to articulate at meetings. And unfairly & without intention - it kinda 'white-washed' the purpose of the conversation.

I learned before going to a second meeting (one of 120 Hui / meets held) that there had been considerable research - data mining - of which NZ organisations had what audience reach within NZ & that the panelists attempted to use this research to promote its work. How succesful that marketing objective was is not discussed.

Rather bland I think - was it a marketing exercise then?

As you well know face-to-face conversations & or debates are far more powerful & interesting & allow the human dynamics - temperature increases - hostilities - anger emotion - to occur.

For me the experience @ two meets felt like people were walking on egg-shells - the atmosphere was uncertain & though well-attended - apprehension & hestitation ruled.

In the overall analysis I agree though that the discussion/conversation must continue. Education on constitutional basics such as civics, the history of te tiriti & its role in contemporary times - will win my vote. They are absolute. And maybe - just maybe - a more-informed debate to historical claims before the Waitangi Tribunal & subsequent settlements will result.

Let us rid ourselves of this 'meddlesome priest' & understand that setlements are necessary to achieve a form of redress for the awful things that happened last century.  They may be touted as full & final & fair. But it is the 'fair' bit which catches the craw.   

Each question posed for this Conversation linked to the other. And it is silly to argue angst against one question & not take into account the impact elsewhere.  

The question of the Maori electorates - for instance - seems to be attracting unncessary heat from an ill-informed person - whom I will not deign to educate. He obviously has lots of reading to achieve & may actually understand the history & why the seats have been retained not only by government & its political partner - the Maori Party - but also by considerable numbers of Maori citizens who wish to enrol & to vote under this legislative option. And I see no disadvanatge when a democracy votes in support of its election laws. 

But 2014 is an election year & due to that somewhat mportant factor - it may have been the driver to the Panel to only make recommendations. It is likely therefore that this report may not see the light of day until after the elections.

What's the public law principle Andrew? Parliamentary sovereignty prevails & cannot be bound by its predecessor. 

by Andrew Geddis on December 08, 2013
Andrew Geddis

@Andrew,

I made the point in the paragraph below:

So, there isn't really an "ugly, unadorned truth" involved? It was this comment that confused me.

by Andrew Osborn on December 08, 2013
Andrew Osborn

Perceptions being everything.

I suspect the average New Zealander would likely be appalled at hearing he lived in an Apartheid regime...but it OK in this instance because our intentions are good

Not that good intentions pave the road to hell

 

by stuart munro on December 09, 2013
stuart munro

@ Andrew O.

You forget the little matter of choice. Apartheid was imposed - going on the Maori roll is voluntary.

As far as good intentions go, I'm all for them. Ben Franklin and a couple of his mates boiled down the mass of moral philosophy to 'be just and good'. This would make a splendid constitution - it would be like a little ray of sunshine for our current politicians, or perhaps more like a deftly placed wooden stake.

When we see the many corrupt political transactions that taint New Zealand politics, the criticisms can readily be identified as deficiencies of fairness, or virtue.

by Alan Johnstone on December 09, 2013
Alan Johnstone

I can see the purpose of the Maori roll in an FPTP environment, and the role they played in maintaining Maori political representation, but can't for the life of me see what purpose it serves in an MMP environment when have the list system.

 

by Richard Aston on December 09, 2013
Richard Aston

Chris, thanks for you impressions of the two hui you attended. Sounded like a stilted process.

I can hear you needed a lot more fire in the conversation and you say it didn't really " address the issues that are deeply felt in many communities & which people struggled to articulate at meetings."

Whats your sense of what those deeply felt issues are ?

 

by Ross on December 09, 2013
Ross

I must confess I have not given the issues a lot of thought. If proponents want a constitution, what are the pros?

I'm not a big fan of John Ansell but I recall him asking the Panel a specific question and the answer bore no correlation to the question. That doesn't inspire confidence in the process. Ansell suggests the "conversation" is heavily weighted in favour of Maori. Maybe he's right.

http://treatygate.wordpress.com/2012/06/11/oia-exclusive-minutes-confirm-bias-of-constitutional-advisory-panel/

At a cost of $2.6 million, it's not a cheap conversation, which I suspect will go nowhere.

by Richard Aston on December 09, 2013
Richard Aston

Alan its the difference between an electorate MP and a List MP.
A Maori electorate MP is obliged to represent the interests of that Maori electorate first and their party affilation next.Maori electorates are a very rough way of representing tribal groupings, in my opnion.
The good people of Epsom are a kind of tribal grouping.

 

 

 

by Richard Aston on December 09, 2013
Richard Aston

The report seems weak and wishy washy to me. Lots of talk about ongoing conversations and bugger all else. Perhaps the terms of reference were, as you point out Tim, limiting. Limited to a survey of public opinion, further weakened by trying to blend what must have been a range of opinions into a "broad consensus".

Picking up on the energy behind Chris's comment I'd would rather see some strong ideas (ideals) vented into the public space challenging us all to think about what New Zealand is, who we are. Something creative and challenging.

Dissappointing.

 

 

 

by Ross on December 09, 2013
Ross

If the comments section in this post by Chris Trotter are anything to go by, the "conversation" has an awfully long way to go.

http://bowalleyroad.blogspot.co.nz/2013/04/not-debating-constitution.html

by Andrew Osborn on December 09, 2013
Andrew Osborn

Stuart: You forget the little matter of choice. Apartheid was imposed - going on the Maori roll is voluntary.

Fair point. I didn't know I had the choice of going on the Maori role.

 

by Alan Johnstone on December 09, 2013
Alan Johnstone

Accepting your broad point Richard about the difference between list and electorate mps, I'd still question the value of them, I struggle with your idea of tribal representation, when everyone else is represented on a geographical basis, like the guy said, He iwi tahi tatou.

Choice isn't really good enough a reason, when it's not extended to any other ethnic group. 

by Richard Aston on December 09, 2013
Richard Aston

"Choice isn't really good enough a reason, when it's not extended to any other ethnic group."
Sure if you consider Maori, any other ethnic group.

 

by Chris Webster on December 09, 2013
Chris Webster

@ Richard:Yes I agree the report is disappointing - but hey the brief was to do x and y and not 'a,c or c.'

'I can hear you needed a lot more fire in the conversation and you say it didn't really " address the issues that are deeply felt in many communities & which people struggled to articulate at meetings. Whats your sense of what those deeply felt issues are ?

The issues are many - like an iceberg - 99.9% lies under the waves. But to lay some on te tepu. People were uncertain as to the kind or type of tone of question they could ask. They were unsure and I think that their exhibiting / publicly displaying their own knowledge among / before an august body also made them uncomfortable. Many came for answers - rather than ask questions. This is cutting edge stuff  - having a conversation.

Some people that spoke with me were very concerned that Maori people were going to be given carte blanche power of the the country - or take it. When I asked him how that would be possible given that we have 3-yearly elections - there was a deafening silence as they realised how silly their fears. Then it became awkward for them. I was not there be to cinderella or to safe them from their fears. But it was good for them to turn out - & to participate in the actual event.

I was a meeting & a Hui. And the resulting cultural differences were widely apparent. There was no holding back at the Hui. Passion, anger, frustration, cries the treaty was a fraud, lousy settlements - hell they blamed everyone for their frustration.There is of course lots of facts in what ewas said. And this public outing was also frustating them because they knew little or nothing would come of it.

You must also recall there were three conversations on the same topic taking place around the motu with different agenda and with different personalities. I suggested to some at the general meeting they attend the Hui. The response: 'What? Can we go to those?  Are you sure? Will we be welcome?'

That was disappointing to hear that people were uncomfortable about coming to a Hui or even going the Waitangi Tribunal hearings. Why? 'Well they speak Maori and we dont.  Ah. Well it is not all in te reo - nzild chat is expressed there most eloquently. 

I would suggest Richard - if those same people were to read the CAP report they would conclude as you have done. Disappointing. Disappointing in how it was presented or the outcomes that they recommended.  I do note that $2.m from VOTE Maori has been assigned for these education seminars & materials.

But if you review what has happened since the heady days & outcomes of NZMC v Attorney-General dealing with land, coal, language, policy; coupled with the resulting reports from the Waitangi Tribunal (they are a real taonga) & what they offer as a most valuable resource (English & Te Reo) that would go a long way to assauge some of the discomfort that people were afraid to express publicly.

@ Alan J: FPTP & the Maori seats - tra-la yawn. Come on this is settled. It is part of the constitutional journey we have all be on.  They are part of our constitution. Look at the history of the establishment of the 4 Maori seats & by what government & how long the number stayed at 4 while the general seats increased. 

@ Ross:  'Ansell suggests the "conversation" is heavily weighted in favour of Maori. Maybe he's right.'

Well where to start with that source? Well he would say that. So Maori citizens are/ were favoured? Mmm. How? Dual ministers of the crown Pita & Bill. The Panel had dual chairs - Tipene & John? I do note John has been as silent as a lamb since the release of the report. I wonder why?  

And Ansell's alternative group was heavily stacked with Pakeha people. What is this nonsense? We could spend all night & day inferring this & that. Pakeha people are still the majority in terms of citizens - followed by a growing Asian community & Maori citizens are now 3rd or 4th in numbers & language. So how are the 'heavily favoured'?

@ Alan J:again  :-) . 'Accepting your broad point Richard about the difference between list and electorate mps, I'd still question the value of them, I struggle with your idea of tribal representation, when everyone else is represented on a geographical basis, like the guy said, He iwi tahi tatou.'

Tribal representation MPs is something I do not like nor subscribe to.

But do you realise how physically huge they are with competing hapu interests & traditional boundaries - it is a jellied nightmare. The South Island (which has 16 or 17 general seats) v Te Tai Tonga held by one sole Maori MP. Sure there may be Maori citizens as list MPs. But they are there for their party & its policies - not to represent Maori citizens based on tribal groupings.  

We all know our electoral boundaries are set by a government agency. If the Maori electorates were truly 'tribal' there would be 500 electorates. Every hapu in the country would want their traditional rohe/district lands returned. We all know how all the electoral (Maori & General) seats are created - by population changes - driven off census data. With the Maori electorates - as a country have been there & done that via the courts & the Waitangi Tribunal & the Privy Council.

Should moves of NZ becoming a republic you will hear from the Maori communities. Big time! Why? Because te tiriti was signed between Maori & the Crown. What would become of that treaty relationship & how would our constitutional arrangement change under that scenario?  Any takers?.

'He iwi tatou'. Well if you read the 2013 census data - we are no longer a country of two peoples. It may turn into - nga iwi tata :-).

by Andrew Osborn on December 09, 2013
Andrew Osborn

Chris: And Ansell's alternative group was heavily stacked with Pakeha people. What is this nonsense? We could spend all night & day inferring this & that. Pakeha people are still the majority in terms of citizens - followed by a growing Asian community

Aren't Asian people Pakeha in a bicultural universe?

 

by stuart munro on December 10, 2013
stuart munro

Stuart: You forget the little matter of choice. Apartheid was imposed - going on the Maori roll is voluntary.

Fair point. I didn't know I had the choice of going on the Maori roll

Andrew you do - you can claim Maori descent through a friend of your mum, or simply choose just to assimilate by self-identifying. Not a very rigid system, and nothing to be frightened of.

 

by Andrew Geddis on December 10, 2013
Andrew Geddis

I suspect the average New Zealander would likely be appalled at hearing he lived in an Apartheid regime...but it OK in this instance because our intentions are good

Apart from the stupidly inappropriate decision to use the term "apartheid" at the same time as Nelson Mandela is being buried - our present system of proportionate reserved parliamentary representation of NZ's indigenous people who choose to be represented in that way being the complete opposite of what South Africa imposed on its indigenous peoples - you could do with learning a bit of history.

Up until the 1970s, all "pure blood" Maori (i.e. people with a "blood quantum" of more than 50%) had to enrol on the Maori roll and vote in the Maori seats. There then were only 4 seats for Maori, no matter how large the voting population. If New Zealand has ever been an "apartheid" system, it was then.

by Chris Webster on December 10, 2013
Chris Webster

@ Andrew O: Self-education is less painful than self-flagellation. 

by Richard Aston on December 10, 2013
Richard Aston

Chris , thanks for fleshing out the issues as you experianced them at the meeting and hui.

I take your point about Maori electorates not equating to tribal affiliations , I was out on a limb with that idea in my futile attempt to counter Alan's argument that Maori seats are meaningless in an MMP system.

 

 

by Tim Watkin on December 10, 2013
Tim Watkin

I was away for the weekend so please excuse my absence on this thread.

Andrew, those are all good questions at the top. I didn't think I had to figure out the whole process on my own! You're that so many virtues you might want to embed in some way end up contradicting another or becoming a straightjacket in some unexpected way decades down the track. Yet I don't think that's a reason not to try. Andrew O takes a potshot at the US constitution, which I take up to a point. But really that's a phenomenal document that gets more right than wrong. Seeing the unintended outcomes brought by it and others like it makes me err on the side of simplicity; less would be more. But I think it would be a noble and useful exercise to find the bare minimum of common ground as a legacy for generations to come.

No, I don't know what they'd be, but you'd start with the Treaty and BORA, wouldn't you? I tend to think a constitutional convention as Australia used and as Mike Moore advocates is probably the way forward. I'm unsure as to enforcement. On one hand I like the supremacy of parliament. On the other I like the bit of ginger and detatched intellectual scrutiny courts can offer. The Israeli supreme court has been pretty good at that, especially ensuring minorities aren't forgotten in the tyranny of the majority.

Andrew O, one person's racism is another person's affirmative action. For me a lot of it comes down to whether you honour history or whether you just start the story at chapter 10. Where wrong was done, a civilised society takes some time to put it right. It's about reconciliation and justice and for me, New Zealand has been incredibly gracious in how it's gone about it.

 

 

by Tim Watkin on December 10, 2013
Tim Watkin

Chris thanks for that info on the meeting and hui you attended. Interesting. To play devil's advocate with you (and myself) there is some value in our politeness on such things. As much as I'd like to see some more robust debate, better a slow and careful conversation than armed uprising, which has been so common elsewhere. I'd rather we were gentle with each other in these conversations than go down the blame and accusations path with Maori never being able to forgive and pakeha forever saying 'why do they get that and I don't?'

Maori have been very generous in how little they've sought in these debates and pakeha generous in the sharing of power. None of it perfectly of course, but still something to be proud of. 

by Andrew Osborn on December 11, 2013
Andrew Osborn

Stuart: Andrew you do - you can claim Maori descent through a friend of your mum, or simply choose just to assimilate by self-identifying. Not a very rigid system, and nothing to be frightened of.

Of course I know that > Satirical comments sometimes don't come across so well in text.

 

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