Reviewing New Zealands Constitution

Critics claim radical changes to the way we are governed and to the role of the Treaty could be on the way, as our constitution is quietly reviewed.

Signing the Treaty, courtesy Alexander Turnbull Library

New Zealand’s constitution is under review, which may come as a revelation to those who didn’t know we had a constitution in the first place. It has also come as a surprise to many people who do know about our constitution and say that it works pretty well as it is, so why tamper with it? The answer to that question lies in the political horse-trading that followed the 2008 general election. It’s hard to find anyone who argues that New Zealand’s constitutional arrangements are in urgent need of an overhaul, but a review was on the Maori Party’s shopping list when it entered coalition negotiations with National. Under the confidence and supply agreement that emerged from those talks, the Maori Party extracted a commitment that the Government would conduct a “wide-ranging” review of the constitution.
Announcing the terms of reference in December 2010, Deputy Prime Minister Bill English and Maori Affairs Minister Pita Sharples said the review would cover issues such as the size of Parliament, the length of the electoral term, Maori representation, the role of the Treaty of Waitangi and whether New Zealand needs a written constitution. The review has come under fire for a variety of reasons, among them the notable omission of any reference to a republican option. But it’s those last two points that have created the most disquiet. Critics claim the review is working towards a predetermined outcome: namely, the creation of a written constitution with the Treaty, or its “principles”, entrenched as supreme law. Under such an arrangement, the critics argue, the Supreme Court would have the power to strike down any laws deemed inconsistent with the Treaty.
Constitutionalists point out that this would subvert the principle of parliamentary supremacy, which underpins our constitutional arrangements. Ultimate power would shift from the people’s elected representatives in Parliament to the judiciary. James Allan, a former legal academic at the University of Otago, now a professor of law at the University of Queensland, says a written constitution would be a disaster for New Zealand, and that he would “run a mile” from incorporating the Treaty into any such document – “not least because no one knows what it means when applied to any specific issue”. Inevitably, it would involve judges determining how the Treaty should be interpreted and applied.

GENERAL ALARM

What’s unusual about opposition to the review is that alarm bells are ringing right across the political spectrum. New Zealand First leader Winston Peters says a constitutional advisory panel appointed by the Government is stacked and the outcome already decided. “The so-called ‘principles’ of the Treaty will creep into all laws that shape our existence.” In particular, critics have seized on Sharples’s statement that the review will provide an opportunity to consider how New Zealand’s legal and political systems can reflect tikanga Maori, or Maori custom. Former Act MP Muriel Newman, who has launched a campaign against the review, says a Treaty-based constitution would enshrine Maori privilege and turn non-Maori New Zealanders into second-class citizens. “New Zealand would forever be locked into a future of separatism and racial division.”  ...click for more

http://www.listener.co.nz/current-affairs/politics/queen-and-country-reviewing-new-zealands-constitution/