The Government has announced its review of New Zealand's Constitution. I'm announcing what it will recommend - except about the thing 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.

Comments (25)

by Phil Lyth on December 08, 2010
Phil Lyth

Politicians (of all stripes) tend to ignore other people's work.

But it would be useful to remember the review of current constitutional arrangements, reported at the end of the 2005-2008 Parliament.The report identifies in detail a lot of the work to be done in the first stage.

Dunne chaired, Labour, Act and Greens participated. From memory, National spat the dummy.

Report is at http://www.parliament.nz/NR/rdonlyres/575B1B52-5414-495A-9BAF-C9054195AF...

by Andrew Geddis on December 08, 2010
Andrew Geddis

Phil,

The review proposal does recognise that earlier review's existence - but as you note, National (and NZ First) chose not to participate in it, while the Maori Party was but a fond dream in Tiriana Turia's mind. So while it produced a bunch of useful background material, the actual report it produced was a bit limited.

Indeed, here are its recommendations in full:

 

1 Some generic principles should underpin all discussions of constitutional change in the absence of any prescribed process.

(a) The first step must be to foster more widespread understanding of the practical implications of New Zealand’s current constitutional arrangements and the implications of any change.

(b) Specific effort must be made to provide accurate, neutral, and accessible public information on constitutional issues, along with non-partisan mechanisms to facilitate ongoing local and public discussion.(By majority*)

(c) A generous amount of time should be allowed for consideration of any particular issue, to allow the community to absorb and debate the information, issues and options.

(d) There should be specific processes for facilitating discussion within Māori communities on constitutional issues.(By majority*)

2 To foster greater understanding of our constitutional arrangements in the long term, increased effort should be made to improve civics and citizenship education in schools to provide young people with the knowledge needed to become responsible and engaged citizens.

3 The Government might consider whether an independent institute could foster better public understanding of, and informed debate on, New Zealand's constitutional arrangements, as proposed in this report.(By majority*)

 

by Tim Watkin on December 08, 2010
Tim Watkin

You beat me to it, Andrew. I had a post half written in my mind, but it's too similar to yours to bother now.

Essentially, my heart sank when I saw Bill English as one of the lead ministers. If it was to be an historic attempt at change, the minister Simon Power would have put his name to it... or even more so, the PM would have taken the lead. It's been stuck on the 9th floor for most of the year, after all, while the Nats and Maori Party wait for the fuss (UN declaration, Tuhoe, F&S) to die down. When it never did, they just went with the 'it's almost Christmas and no-one will bother' approach.

First impressions suggest the outcomes will be conservative and incremental. In effect it'll be a two-year process after the next election, not a decade-long constitutional congress or a society-wide debate. I just hope pakeha will take as much interest as Maori are likely to.

You're bang on about the election date, but I wonder about the term length. The perceived wisdom is that Kiwis won't vote for a four year term, but I'm not so certain...

by Andrew Geddis on December 08, 2010
Andrew Geddis

"The perceived wisdom is that Kiwis won't vote for a four year term, but I'm not so certain..."

Well, they didn't in 1967 and 1990 - by over a 2-1 margin. Of course, things may have changed since then (1990 especially was a time of disgust with all things parliamentary ...), and it always depends what else is in any constitutional reform package that may go to a referendum.

But I think it is just as likely that if wide-enough support can be drummed up from "constitutional experts" and the like, then Labour & National (who really are the only ones who matter on this issue) will use this as cover to do it by a 75% majority in the House (which is what you need under the Electoral Act 1993).

by Graeme Edgeler on December 08, 2010
Graeme Edgeler

Key as quoted on Stuff:

"Fundamentally three years is very short, as we've seen. You end up having to go back to the polls much more quickly than most people would want," Key said.

"Again that's a matter for New Zealanders. We've had two referendums in the past four years. Both of those have been lost. But my view is there might be quite an appetite in New Zealand for a four years fixed term."

Sounds like he's no keen on doing it himself, which is good.

by LJ Holden on December 08, 2010
LJ Holden

Really? He sounds keen on it. Personally I think Key is correct - but the public won't support what they see as lessoning their control over parliament.

by Ben Curran on December 08, 2010
Ben Curran

There are pro's and con's to the whole four year debate. Not sure which way I would go.

Most of those subjects seems particularly contentious though. Sounds like a lot of work for not much change, just to make it look like they're doing something. We know the Maori seats won't go, we're never going to have a single written constitution (as opposed to having it spread over several acts as we currently do) . I don't think anyone is seriously mooting the possibilty of changing the size of parliament.

About the only one that seems interesting is the roll the treaty. To be honest though, I'm more worried by the possibility of losing MMP than by any of the topics in this review.

by william blake on December 08, 2010
william blake

I cant honestly see a constitution for Aotearoa being written up without the Treaty of Waitangi being central to it.

Some may see this as an opportunity to tie off treaty settlments and declare te T.O.W  as redundant but I think that would be unlikely with Pita Sharples on the team.

Or is tinorangitiratanga able to be conferred democratically? and its corrolary; pakeha being able to vote maori out of their sovereign rights.

by Graeme Edgeler on December 08, 2010
Graeme Edgeler

Really? He sounds keen on it.

Yes. But not on doing it himself. Kinda like supplementary member. National could pass a law changing the voting system to supplementary member, and John Key sounds keen on it, and reckons the public might be as well. But there's still going to be a referendum.

by Kadin Prideaux on December 08, 2010
Kadin Prideaux

Andrew,

Why do you think that there's "no way" Parliament would vote to increase the number of MPs? I can imagine that it wouldn't go over well with the voters, but I doubt a four-year term would, either. I can't think of any way that one might be sold to the public, that would not also be effective for the other.

As regards NZBORA, two alternatives to outright entrenchment and full judicial review that I believe I saw mentioned on NRT were (1) to grant judges the ability to declare legislation inconsistent with NZBORA; rather than striking down the legislation, Parliament would be required to formally respond to the decision, and (2) grant judges the ability to strike down legislation, but include a "Notwithstanding clause", like that in s33 of the Canadian Charter of Rights and Freedoms; Parliament could pass inconsistent legislation by explicitly suspending provisions of the NZBORA for the purposes of a particular Act (which suspension would then have to be renewed every five years).

Number 1 there is more or less what you suggested would be the outcome, and I agree that anything that goes further is pretty unlikely. I know that Parliamentary sovereignty is pretty popular in New Zealand circles (with good cause), but do you think there's a possibility of any serious consideration being given to judicial invalidation of law (even if only in the weak, Canadian form)?

by Andrew Geddis on December 08, 2010
Andrew Geddis

Graeme,

Of course, National couldn't pass a law introducing SM or a 4 year term by itself (or with ACT/Maori Party support). Only National and Labour together can meet the 75% entrenchment threshold ... unless you mean Key could repeal this, then pass the said law?

And were National and Labour to conspire in extending the parliamentary term by a year now, they'd be absolutely flayed for it. Whether a review process that reveals strong support for the extension from "constitutional experts" (i.e. Wellington insiders) would change that calculus, I don't know. But Key's position now need not reflect that of whomsoever is PM (likely Key) at the end of 2013.

However, the length of Parliament thing isn't the real issue here. It's the Treaty.

by Andrew Geddis on December 08, 2010
Andrew Geddis

Kadin,

I think there's "no way" there'll be an increase in the number of MPs simply because there's no-one arguing for this ... as opposed to a 4 year term, which has a lot of support in Parliament and policy circles generally. As for the "fixes" to the NZBORA, the non-binding/UK-style declarations are the least-intrusive power for the courts (my own view is it won't really change anything at all, given how readily Parliament legislates even after the Attorney-General has said the measure is inconsistent with the NZBORA). A Canadian-style "notwithstanding" requirement actually isn't that "weak" a measure - in Canada it has never been done by the national Parliament - and I think MPs simply will resist giving that sort of power away.

Of course, I may be entirely wrong. It may be that the weight of opinion/submissions is along the lines of "you guys are out of control and need some sort of check on your actions, even if it is only to make you explicitly say that you are ignoring rights", which may force  the politicians' hands. But I'm doubtful that sort of consensus exists within the legal acadamy, let alone the general populace.

Others have a view on this?

by karen chance on December 08, 2010
karen chance

Entrenching a Bill of Rights - no way!

by Graeme Edgeler on December 08, 2010
Graeme Edgeler

Of course, National couldn't pass a law introducing SM or a 4 year term by itself (or with ACT/Maori Party support). Only National and Labour together can meet the 75% entrenchment threshold ... unless you mean Key could repeal this, then pass the said law?

SM they could.

Electoral (Supplementary Member) Amendment Bill

...

4. Amendments to s 191 of the principal act

Section 191(7) of the Principal Act is amended by deleting the number "120" and substituting the number "50".

5. Amendments to s 192 of the principal act

1. Sections 192(2) and 192(3) and 192(5) of the principal act are repealed.

2. Section 192(4) of the Principal Act is repealed and the following subsection substituted:

"(4) After the process descibed in subsection (1) has been completed in respect of each party, the number derived therefrom shall be the number of seats to be allocated to that party from the list of candidates submitted pursuant to section 127."

Voila! Supplementary Member.

And if you wanted fewer list MPs, just lower the number to 30 instead of 50. The bill would only need 75% or a referendum if you wanted to increase the number of electorates.

by stuart munro on December 08, 2010
stuart munro

One way of resolving the representation issue in a four year or longer term would be batched elections - shifting a quarter of MPs every four years. Before you cry absurdity, remember that many statutory bodies and corporations have similar systems, the intent being to smooth power transfers.

The answer to public dislike of four year terms, if it arises, is to put the introduction 10-15 years out. If the public really don't like it, that ought to be time enough to find MPs willing to modify or repeal it. It also reduces the possibility of the change being exploited for partisan advantage, and therefore the perception that the change is driven by the pursuit of partisan advantage.

Improved feedback mechanisms could be pretty readily achieved by having a live monthly grilling of 1-4 government ministers by citizens chaired by some neutral functionary (the GG perhaps, or the ombudsman). It would, to be sure, be uncomfortable. But it might encourage a more spirited performance on the part of MPs than has lately been the rule.

Perhaps we might also make some provision for therapy for MPs too, for many of them seem to be, as Bierce puts it :

"...fools and rogues, blind with superstition, tormented with envy, consumed with vanity, selfish, false, cruel, cursed with illusions, and frothing mad."

by BeShakey on December 08, 2010
BeShakey

Given Key's populism I wouldn't read too much in to what he says now (or even what the experts say).  I suspect that the experts will float various well thought out arguments and whichever one/s the public grasp on to will be progressed (within reason).  I suspect anyone with some good PR skills could manipulate this fairly easily to get the result they want.

by Andrew Geddis on December 08, 2010
Andrew Geddis

"The bill would only need 75% or a referendum if you wanted to increase the number of electorates."

Which is the version of SM that is on the table - 90 constituency seats, 30 list.

But stop trying to make this one of our "who is the biggest election law nerd"-type comment threads! I accept you own that title ...

by Phil Lyth on December 08, 2010
Phil Lyth

Graeme, you bet me to it.  The entrenchment in s268 protects the method of voting in s168, one party vote + one electorate vote per person.

But it does not protect the way that party votes are translated into seats, s191.

Nor does it protect the total size of the Parliament, set at 120 (yes, there can be overhang) in s191(7)

A Government in theory could change both of these by simple majority.  Yes, outrage would ensure, but there is the precedent of CERRA.

by Phil Lyth on December 08, 2010
Phil Lyth

But stop trying to make this one of our "who is the biggest election law nerd"-type comment threads!

I wasn't trying to compete, honest. For completeness I'll note the Act does NOT specify the number of electorates, but the way they are calculated.  They have increased from 65 in 1996 to 70 today, and numbers of list seats have reduced.

by Ian MacKay on December 09, 2010
Ian MacKay

A pity that the Republic question is not part of it.  John Key is not keen to even discuss it as I suspect that his next goal is to gain  a Sir.

"The Right Honourable Prime Minister Sir John Key."

by Chris Webster on December 09, 2010
Chris Webster

Andrew: Bill of Rights issues: quick and dirty response.

Whilst Simon Power is not named he remains very much in the wings and has signalled his thinking on property rights; relationship of the NZBORA to other legislation, which additional rights need protection, entrenchment and the role of the courts; & an interesting analysis of s7 NZBORA A-Gs determinations since 1990 -http://www.beehive.govt.nz/speech/speech-bill-rights-act-symposium;

Radio NZ discussions: endorse Moana Jackson's comments: Maori have been doing it for years - and the need to find a bridge between the paths of Maori thinking and Crown direction - and public opinion

by Dean Knight on December 09, 2010
Dean Knight

Apropos RNZ remarks, "Republic issues not important"!?! Hrmph!  <grin>

by Andrew Geddis on December 09, 2010
Andrew Geddis

Dean,

Oh - I know ... symbols matter, etc, etc. But it's just not the top of my pile of stuff that really fires me up. My problem, I freely admit.

BTW - how come I was doing that gig and not you? Not had a falling out with RNZ over your salary, have you? Bloody prima donna talent and their grasping demands ...

by dave on December 10, 2010
dave
With regards to the Treaty, it appears that some Maori want to have a different and quite distinct conversation to the one non Maori want to have. Many will want to discuss the place of the Treaty in the constitution, whereas Maori want to discuss the relevance of the constitutional framework to the Treaty. Which is perhaps why we will not have a written constitution.
by Dean Knight on December 10, 2010
Dean Knight

Andrew

LOL.  Yeah.  Actually, the republic aint really about constitutional reform, if you take a soft republican approach.  It's about nationhood and community identity...

I dobbed you and Moana into RNZ.  (1) With my departure abroad I've resigned the NTN show; and (2) we're crazy busy here with a conference examining the role of people, incl academics as "critic and conscience" (and (3) I think they knew there was a chance I would have ranted about the republic too...).

We start our conference this morning with a conversation between Ani Mikaere and Moana Jackson on "Māori critic and conscience in a colonising context - law and leadership as a case study".

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