Challenging Our Constitution

Otago University academic Professor Janine Hayward has written a great overview of New Zealand's Constitution and the need for a robust conversation.

Prof Hayward loves to challenge her students with the frightening reality of what is constitutionally possible:

"If Parliament decides to forcibly take the babies of beneficiary parents into state care, it can, if it has 51% support in Parliament."

While many may consider this a shocking possibility and not likely to happen, we need only to look at Labour's Seabed and Foreshore legislation where a Labour Government removed indigenous rights to gain popular support. This year the National led Government removed the legal rights of family carers of the disabled. They passed an Act that capped the number of families who can be paid for looking after a family member, limited the level of those payments, denied spouses rights to be paid and specifically prevented anyone testing these issues in a court. Breeches of human rights abound in New Zealand law.

Unlike many democracies New Zealand has a sovereign Parliament that is answerable to no one and a constitution that doesn't exist as a single document but consists of a collection of statutes, the Treaty of Waitangi, Orders in Council, letters patent, decisions of the courts and unwritten constitutional conventions. Political parties are reluctant to push for greater constitutional clarity because of the power available if they get control of the Government benches.

The National Party has pushed its legal powers while in Government to the ultimate level by claiming they have a mandate to do as they wish because their party received the greatest number of votes (47%). The only democratic control they feel is necessary are the three yearly elections, in between these autocratic governance is completely reasonable.

What makes me most concerned about the current constitution is how easy it is to push through significant legislation with little scrutiny and often disregarding basic human rights. The National Party has been able to dismiss legal and academic opinion, avoid having to consult with those directly effected by significant changes in law, use urgency to avoid select committee scrutiny and pass legislation through parliament by a majority of one vote. In many constitutions a threshold of 65% support is necessary to pass changes in rules or law and this seems entirely reasonable.

Surprisingly this Government has supported a Constitutional Conversation and a panel of advisors have been promoting discussions around the country. Most of the engagement has been by iwi, for whom the place of the Treaty in any future constitution is problematic but hugely important. I believe in the possibility that the Government deliberately set up the panel as a distraction, knowing that few New Zealanders would really engage with the complexities of constitutional law and if they were ever challenged regarding their autocratic style of Governance then they could honestly direct people to join the 'conversation'.

No matter what comes out of the Conversation the current Government is unlikely to adopt anything that will reduce their powers, they have already rejected the recommendations from the electoral commission with regards to MMP and will probably ignore a negative result from the asset sale referendum. It appears that under the current Government real constitutional change is unlikely and dictatorial, ideologically driven governance from an electoral minority (47%) will continue.