What the constitutional review will recommend - you heard it here first!

The Government has announced its review of New Zealand's Constitution. I'm announcing what it will recommend - except about thething that really, really matters.

The Government (finally!) has announced the bones of its review of constitutional issues, a key component of the Confidence and Supply Agreement between the Maori Party and National Party. The fact that this agreement stated the review was to have commenced "no later than early 2010" strongly suggests that there has been a bit of push-and-shove over the issue within the halls of power.

I say the "bones" of the review have been announced as there is still a lot of detail to be filled in. Indeed, the announcement basically says that the next six-months will be spent putting flesh and skin on the review processes, before a six-month hiatus to allow the election and electoral referendum to occur. (Note that, election watchers ... this announcement suggests the PM already has penned in a post RWC November date.) The real work then begins in 2012-2013 when the review enters a phase of public consultation and discussion, with a final report due at the end of that year.

However, there is enough of a skeleton in place to make a few comments about the review's structure. First of all, it is to be an "insider's job". The final report (along with interim reports made along the way) will be from the Deputy PM and Minister of Maori Affairs ... which are assumed to be Bill English and Pita Sharples (note again what this says about predictions for the 2011 election and aftermath!). These two will get support and advice from not only officials but a "Constitutional Advisory Panel" of indeterminate size and composition. They also will make their reports after "consultation" with a "reference group of MPs from all parties across the House... ." So their report shouldn't just be whatever appeals to them as individuals, but rather a distillation of the considered views about the matter from the nation's political leaders, constitutional experts and (following a process of public debate and discussion) the people themselves.

There's swings and roundabouts to this approach. On the plus side, this review likely will escape the fate of (for instance) the 2025 Taskforce's detailed and passionate reports and recommendations, which seem destined simply to provide the PM with a chance to appear moderate and pragmatic as he rejects them forthwith. Having the reports come out under the names of two cabinet heavyweights makes it more likely that the recommendations they contain will actually be followed, rather than treated as an interesting but ultimately academic (in the pejorative, as-used-by-Gerry-Brownlee sense) enterprise.

The downside is the risk that the report will contain those options that are most palatable to those presently in power. Sure, there is to be extensive and widespread consultation with the public in general and Maori in particular. And I do not mean to imply that this exercise simply is window dressing designed to permit a set of pre-determined preferences to be imposed. But the fact is that where there is real, widespread disagreement over, or where there are choices between, how a particular issue should be resolved then (i) the status quo will prevail; unless (ii) the alternative is to the benefit of incumbent politicians (especially in the governing parties).

I hope that doesn't come across as unduly cynical, because it really isn't meant to. There is a reason to be somewhat conservative with regards to constitutional change; generally the known-if-flawed will be better than the unknown-and-risky. And as there is no Archimedean point from which we can judge the "real, true" best option for change, the fact that incumbent politicians will have their biases along with the rest of us simply is a fact of life.

So there's a trade-off. The review has mana and a chance of actually accomplishing change, at the cost of close political control and a certain (small-c) conservative-bias. Perhaps, like love and marriage, you can't have one without the other. But it does mean that it is highly unlikely that this review will produce any completely unexpected, out-of-left-field recommendations (a la the 1986 Royal Commission on the Electoral System's call to adopt MMP).

To that end, here's my as-of-now, off-the-top-of-my-head, predictions for what will be recommended at the end of 2013 with respect to each of the review's current terms of reference. I note that these aren't necessarily my preferred outcomes to any or all of the issues. They rather represent my view on what Government ministers, after consulting with other MPs, hearing from "Constitutional Advisors" and receiving submissions from the public, are genuinely likely to think is the best way forward.

As always, reasoned and thoughtful comments - as well as disagreement on the substance of these thoughts - is welcome.


Electoral matters including:

  • The size of Parliament.

This will not change. We need the MPs we have (see the Justice and Electoral Committee's report on the "99 MPs Bill" a few years ago), but there is no way MPs will put forward a recommendation for even more of them to be elected.

  • The length of terms of Parliament and whether or not the term should be fixed.

The recommendation will be to move to a 4 year parliamentary term, with fixed election dates as the quid-pro-quo. The "inside the beltway" view is that 3 years just isn't enough time to get government business done, but the public just won't vote for extending the parliamentary term. A recommendation that this should happen - tied to a fixed term, to take that advantage away from the PM - will allow MPs to do it for themselves.

  • The size and number of electorates, including the method for calculating size.

The number of electorates will stay the same, but there will be a recommendation to increase the permitted variation in population between electorates to 10% (up from 5%). This will allow some larger electorates (see most of the Maori seats, Westcoast-Tasman, Clutha-Southland) to shrink a bit in geographical size.

  • Electoral integrity legislation.

This will be deemed unnecessary (unless there is a meltdown within a party between now and 2013). Since the "Waka Hopping Law" disappeared in 2005, this problem has largely resolved itself (Chris Carter being the present exception, and 2011 will solve that).


Crown-Maori relationship matters including:

  • Maori representation including the Maori Electoral Option, Maori electoral participation and Maori seats in Parliament and local government.

The Maori seats will stay in place "until Maori themselves decide to get rid of them". There's no way Maori will want to see these removed, especially with the Maori Party in a position of influence at the present. And there's no way a report coming out under Pita Sharples name will say anything different to what Maori want, even putting aside his obvious self-interest in the question.

  • The role of the Treaty of Waitangi within New Zealand’s constitutional arrangements.
Having said these are just my predictions about what will be recommended, I honestly don't know what will happen with this. I just don't. It is the biggest question that will get addressed, and its the one with the most potential to blow up in a major fashion, but how it is likely to get answered (indeed, how it ought to be answered) is something I just can't say. A cop out I know, but there's always known unknowns in any enterprise...
Other constitutional matters
  • Whether New Zealand should have a written constitution.
The answer to this will be "no", at least insofar as a "written constitution" equates to permitting the judiciary to override Parliament on any particular matter. MPs like parliamentary sovereignty, and there isn't enough of a public (or academic) swell of disagreement to force them to abandon it. So we might "write down" a few more of our constitutional rules - enact some conventions into legislation, change some prerogative powers into statutory ones - but we won't be going for a full U.S. (or even Australian) style constitution.
  • Bill of Rights issues.

As above, there won't be a recommendation for entrenchment of this instrument. There may be some tinkering with the rights therein; the review outline mentions property rights as a possible addition, which will trigger calls to put social and economic rights in as well. I also think it's likely that the courts will be given the express power to issue (non-binding) declarations of inconsistency. But that'll be as far as things go.