Constitutional review - timidity means little grist for the mill

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, which
empowers judges to strike down legislation and that can only be amended through specified
processes. 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.