Kia ora folks,
Recently there’s been people milling around the foundations of our country talking about doing some pretty major renovations. By that I mean there has recently been suggestions about changes to Aotearoa New Zealand’s constitution and I think it’s dangerous.
A constitution is the basic set of principles that sit beneath our governing systems and institutions. It’s the thing that everything else is built on top of. Why do we have a Prime Minister and a parliament, why do we have elections, why do we have courts? These are things that a constitution defines. You could think about it like this - if the government governs the country, the constitution governs the government. A constitution has a lot to do with the rights of people and how power is exercised, distributed, and the limits on that power. The fact that we have a single ‘house’ (Parliament) where our laws are debated and passed and no ‘upper house’ is a constitutional matter. The fact that we are still attached to the British monarchy and that the Queen (via the Governor General) is still our head of state is a constitutional matter.
So where are these rules? Where can we look them up? Well in almost every developed democracy in the world that’s a simple question to answer. You can just go and look up and read the constitution. E.g. on the country’s government website. But in New Zealand the question is not so easy to answer. New Zealand is one of only three western countries that doesn’t have a written constitution laid out in a single document.
So, does that mean we don’t have a constitution? If you think that’s the case, you’re not alone, many New Zealanders are under the impression that we don’t have a constitution and perhaps a lot of us have never thought much about it. But we absolutely do have a constitution, it’s just not documented in a single easy-to-find place. But anywhere you find laws and conventions that govern the government or enshrine the rights of people, you’re looking at bits of our constitution. And there are bits of it scattered all over the place. You can find it in laws like the Bill of Rights Act 1990, The Human Rights Act 1993 and The Treaty of Waitangi Act 1975. You can find it in court rulings, and you can find it in the conventions and traditions of our government institutions. That’s right, many things that happen in government are unwritten conventions, things we do because we’ve always done them.
So, is the constitution boring? Perhaps, but it’s also very important. It gets a bit more interesting when you consider that without a written constitution or an upper house to act as a safeguard on constitutional changes it’s actually quite easy for the government of the day to make changes to constitutional law. I’m not necessarily advocating for a written constitution (although I think one day we will embark on that journey). But let’s take a quick look at some of the recent goings on.
In 2018 former New Zealand Prime Minister Sir Geoffrey Palmer assembled a written constitution which he proposed might serve as a starting point for a codified constitution for Aotearoa New Zealand. This would involve a transition away from the monarchy into an independent republic. A pretty big renovation that Sir Geoffrey is talking about here.
In 2019 after it was pried from behind closed doors the Government revealed He Puapua [the] Report Of The Working Group On A Plan to Realise the UN Declaration on the Rights of Indigenous Peoples in Aotearoa/New Zealand. This report also proposes a massive constitutional transformation which would establish a “kāwanatanga (Crown) sphere”, “a rangatiratanga sphere” and a “joint relational sphere”. This might be thought of as ‘three houses’ – as opposed to the single house (Parliament) we currently have.
Very recently, citing He Puapua, The ACT party raised concerns about Māori co-governance and proposed that the next Government should all but redefine the Treaty of Waitangi and then ask New Zealanders to subsequently pass this redefinition by referendum. Again, another massive shift in our constitutional trajectory.
So, what should we make of all this? Sir Geoffrey Palmer at least took the time to travel the country talking to New Zealanders before presenting a carefully thought-out written constitution. However, by its own admission this proposed constitution does not attempt to answer the most fraught area of constitutional change – the place of the Treaty of Waitangi – especially the questions related to Māori tino rangatiratanga (Māori sovereignty) which most(?) Māori see as being guaranteed to them in Te Tiriti.
He Puapua’s proposal could reasonably be described as radical and it’s not yet clear to me what it would practically mean or how it would work. At best it would allow for a functional and fair exercise of Māori tino rangatiratanga. At worst, it could seriously undermine our democracy. In my view it would set us on a “two nations, one country” path. Is this the right thing for Aotearoa? Is it even what most Māori want?
ACT appears to want to dismiss the fact that even as the ink on the Treaty was still drying and for the subsequent 182 years Māori have fought continuously to retain any authority in the lands of their ancestors. Authority they have cogently argued was guaranteed to them in Te Tiriti. It seems to me that ACT is attempting to massively oversimplify a hugely complex constitutional issue with the hope that the bulk of New Zealanders would opt for simplicity over justice, tick the box, and go back to sleep.
Folks, there is absolutely no way that we are any where near ready to embark on significant constitutional change. Attempting to do so, whether by back-door reports like He Puapua or through dog-whistle referendums as proposed by ACT, would be nothing short of dangerous. Attempting to make significant constitutional change using our 1890s style political parties as the vehicle is like trying to fly a 1920s biplane over Mt Everest. It’s difficult to know where, or how hard you’ll land.
Folks there are no shortcuts – to address these massive questions we need to do the mahi! We need to develop a much better way of having these kinds of conversations. We need to cut the political bullshit out of our politics and really listen to each other. We are the sovereign directors of our country, we need to start acting like it.
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Finally, I want to acknowledge the passing of Moana Jackson today. I’ll leave it to those far more eloquent than I to pay tribute, but his writings have certainly made an impact on me. It’s perhaps serendipitous that I’m writing about tino rangatiratanga and constitutional law today.
Ngā mihi rā
Rhys