How would the Treaty of Waitangi fit in a written constitution?

This post is part of my draft submission to the 'constitutional conversation'.

What future role could the Treaty of Waitangi have in our constitution?

The Treaty is a product of negotiation between iwi/hapu and the Crown, and should be preserved as such, to the extent possible. From time to time, parliament must pass laws that empower Treaty settlements and/or that require consistency with the principles of the Treaty, and the courts have to apply that legislation. The Treaty is one key historical source of our constitution (along with other documents such as the 1688 Bill of Rights and the 1852 NZ Constitution Act) and hence will always be acknowledged to have a place in our constitution, in the broader sense of the word. The Treaty is not, however, a charter for the principles or institutions of government and law, and so it needs to be kept in perspective.

Should the Treaty be made a formal part of the constitution?

A clear and up to date restatement of the basic principles of the Treaty could be made into a formal part of the constitution, perhaps in a preamble, but not the full verbatim text of the original Treaty.

These basic founding principles that derive from the Treaty should not depart too far from the three articles themselves, and hence might be in a form something like this:

The Crown originally gained the right to form a government in New Zealand in 1840.

The Crown is thus bound to protect the mana, valued possessions, customary rights and cultural practices of tangata whenua.

The Crown guarantees to tangata whenua all the rights and privileges of New Zealand citizenship, in accordance with the law.

The original Treaty text as a whole should not be imported into a written constitution. The reasons for this are:

The Treaty is ambiguously worded and poorly translated. This has been the source of many disagreements, and we should not import those problems into a constitution that we hope will outlast us and remain relevant for future generations. No-one suggests importing the Magna Carta or the 1688 Bill of Rights into our written constitution, even though they still serve an important historical constitutional role for us, and so we should not do that with the Treaty.

The Treaty contains wording that is now anachronistic, such as ‘British Subjects’ and ‘right of Preemption.’ It would be unwise to include words that no longer have practical relevance to the New Zealand constitution.

Placing the Treaty into an entrenched overarching constitution risks making the Treaty itself subject to decisions in the courts, with precedents creating ever more complicated interpretations of a poorly drafted document. This may not be in the interests of Maori seeking redress under the Treaty, as it would create conditions for more litigious and costly settlement processes. The Supreme Court’s recent finding on the government’s decision to proceed with sale of shares in Mighty River Power would surely discourage us from believing that entrenchment of the Treaty in a written constitution would be in the interests of Maori. The courts will not necessarily find in favour of Maori nor agree with the Waitangi Tribunal’s interpretations of the Treaty’s implications for particular present-day issues. And the Treaty itself should not be converted into a supreme law that might constrain future decisions, especially given its lack of clarity.

The constitution could include some reference to the Treaty and its basic principles. If indigenous rights are to be recognized in a written constitution, however, it may make more sense to look at the UN Declaration on the Rights of Indigenous Peoples as a source of relevant and up-to-date wording.

The Poverty Budget

A remarkable feature of Budget 2013 is its recognition of the existence of poverty in New Zealand. It would be easy to join the critics who say that the Budget does not do enough to tackle poverty. But to do so overlooks the fact that the National-led government has helped to put an end to middle-class denial that poverty exists in New Zealand; and hence they have helped to put poverty on the agenda for the 2014 election debate. The result may be that parties will be competing next year for our approval of who has the best poverty-reduction policy. Whether or not such a debate would motivate more poor citizens to actually vote is, of course, a 'wait and see' question.
Now, the Maori Party is probably not getting enough attention in the media for the pro-poor policies that have been announced in the Budget, such as home 'warrants of fitness' and food in schools. The danger for them, on the other hand, is that they get tarnished for having collaborated in the government that 'did not do enough' for the poor. Being a small support party for any government can be a no-win option sometimes!
Once a conservative government comes out, however, and addresses poverty – an issue that has been swept under the carpet for the last two decades – then it becomes open season on debating this important social question in a much more constructive atmosphere. Line this up with the government's desperate efforts to improve housing supply and affordability, and one can see how these concerns about pressures on disposable incomes merge into middle-class anxieties, and thus cannot be relegated to the 'feckless' or 'idle' poor. Many people may not approve of the government's present policies, but the poor don't vote National, so one shouldn't expect too much right now. Nonetheless, the core political development here is that social policy is back to the foreground and the mainstream of politics in this country. 'What are you doing for the poor?' should become a question that we all use to interrogate all of the political parties before the next election, regardless of our party preferences or our personal wealth.

The Kindness-To-Waiters (KTW) Test

I have often heard it said that, if for instance you are on a first date, a good test of the character of the company you are with is in how kindly and respectfully they treat waiting staff. Regardless of the true and correct account of what may have happened on the day, it is clear that, in the court of public opinion, Aaron Gilmore has been found to have failed this test.
One might call the harsh treatment he has received from the media as an example of the great Kiwi clobbering machine at work. But one might also say that it shows how greatly New Zealanders detest haughtiness and arrogance, and how we do not like to see the powerful lording it over the rest of us, or threatening our security. It shows that we wish to be able to trust those who lead our communities and our government. Any signs of abusive or bullying behaviour, or that the powerful see themselves as exempt from social norms of decency, are subject to severe punishment in this democratic society of ours.
John Key has dealt with Mr Gilmore accordingly, as his actions have turned him into a political liability for brand National. Key's 'common touch,' in contrast, has helped to maintain his personal popularity, and to mitigate accusations that he may represent traditional born-to-rule, entitlement-by-wealth conservatism.
But, while one waiter's job may be very safe for the time being from John Key's attention, the fate of workers generally in New Zealand is not. This is the same National Party that has threatened the job security and pay rates of all workers in this country with policies like the 90-day rule and youth rates, and a hands-off attitude to factory closures. Not to mention redundancies in the state sector.
The haughtiness of which Aaron Gilmore stands accused is merely a symptom of a deeper, but thinly disguised haughtiness of the present government towards especially the low-paid and precariously employed workers of this country. The distrust that this causes will gradually erode support for this government as the feelings of insecurity infects wider sections of the middle class.

Should NZ have a written constitution?

This post is part one of my draft submission to the 'constitutional conversation'. Constructive critical comments are welcome.

Should our constitution be written in a single document?

Yes. As our society becomes more diverse and more open to complex influences, domestically and globally, we need to codify the basic values, rights and institutions that have enduring worth and widespread support. We do not presently have enough checks on the unicameral parliament and the executive, and a written constitution could prevent governments and legislators from overstepping boundaries that are crucial to the values and basic rights of the people. Much of the performance of our constitution presently relies upon convention, and so a written constitution would set out the basic democratic principles in compliance with which a matter would then have to be settled in situations where there may be doubt or disagreement, or where new practices are needed.

The content of a written constitution can largely be gleaned from existing documents, such as the Cabinet Manual, the Constitution Act and the Bill of Rights Act. A constitution’s contents should be relatively brief and clearly written, so that all can understand it, and include only those essential matters that New Zealanders would not wish to see compromised or neglected by their elected representatives or by the courts. That is, it should cover those matters that we believe have been essential for the good functioning of government and law so far and that will continue to be of value for future generations. Knowing that we have developed, in the course of our history, a relatively stable system of government, a constitution should be regarded as a gift we give to future New Zealanders, for the preservation of sound and enduring values, rather than a set of rules that we hope might deal with today’s problems. In writing it, we should be thinking of that which has endured through our history, and that which, in our best judgement, will continue to be of relevance and importance to generations not yet born. We should try not to leave future citizens with a document that needs frequent amendment.

We should get on and do this job soon, while we have the luxury of time on our side, rather than wait for some unforeseeable crisis to force the need for a written constitution onto us.

Should such a written constitution have a higher legal status than other laws (supreme law)?

Yes. Although New Zealand has done well in preserving the principle of parliamentary sovereignty, it must also be admitted that executives have in the past abused their powers, and parliaments have passed legislation that was acknowledged to be discriminatory and inconsistent with the Bill of Rights Act. Given such behaviour, it would be best for the people now to constrain law-makers and administrators to certain indelibly marked boundaries.

Who should have the power to decide whether legislation is consistent with the constitution: Parliament or the Courts?

It is already parliament’s job to decide whether legislation is consistent with the Bill of Rights Act. But, on occasions, it has been decided that a Bill is inconsistent, and yet it has been passed anyway. Hence, we cannot trust legislators alone to be always the arbitrators of our constitutional rights. The courts should have the power at least to impliedly repeal, if not to strike down, legislation that is found to be inconsistent with the constitution, as a supreme law. This should not include the right of citizens to seek declaratory judgements on constitutionality from a court. Such findings should be restricted to occasions that arise from litigation involving parties affected by the Act in question. That is, I do not think that a constitutional court should be politicised by disgruntled citizens seeking to overturn legislation they happen not to like.

One criticism of the idea of giving courts the power to over-ride legislation is that it may allow unelected judges to reverse the decisions of the elected legislators who are democratically accountable. If, however, the constitutional oversight of the courts is limited to situations in which they are protecting the rights of the citizen against a parliament with full law-making powers, and only in safeguarding popularly accepted standards of human rights and due process, then this new role of the courts would be seen to be a part of the democratic rule of law, rather than an exception thereto.

The Labour–Green power policy

Is the Labour–Green promise of creating a monopoly wholesale electricity provider a game-changer for the 2014 election?
The answer to that is probably 'yes'. This is a policy that has the potential to give some relief to the budgets of every low-to-middle or fixed-income household in the country and to appeal to their economic common-sense, as compared to superficial questions about which leader they 'like' the most. Furthermore, it gives voters a clear signal that the Labour and Green parties are able to collaborate effectively as policy-makers. And the fact that the government and its supporters have only been able to splutter lamely about the plan being 'communist' shows how they have been blind-sided and have no effective reply. National's politics of greed and asset-sales will be directly comparable to a policy of fair pricing and public ownership of an essential service.
The timing of the announcement is important, as it serves as fair warning to those who were considering investing in Mighty River Power in the coming weeks. This reminds me of Labour's promise, in 1998, to reverse the National government's privatisation of the workers' compensation portion of ACC. That too was a warning to investors, who were mainly Australian insurance companies, as it came just before the legislation was passed. I recall at the time wondering if Labour would be staunch enough to carry out the threat. They were, and they did – bringing work-injury insurance back under the ACC monopoly soon after taking office in 2000. The result is that the billions of dollars that employers have paid since then to raise ACC's reserves remain in New Zealand ownership, rather than across the Tasman.
The power companies are different, of course, in many respects. As a state-owned enterprise, Mighty River, for instance, has been creaming excessive profits from NZ households for years now. We could perhaps tolerate this if we saw it as a kind of taxation, as the profits were going to the government and then being used for public services. If private investors can pick off 49% of that asset and profit from it, then half that excess no longer comes back to the public purse, but is privatized. Those investors will, of course, be looking for good dividends from MRP as a cash-cow, at the expense of poorer households. Hence the asset-sale policy represents a huge upward mobilization of capital and of income. The rich win and the poor lose, based on a commodity that the poor have no choice but to use.
The government has tried to convince us that 'we have a highly competitive electricity sector'. But this is cold comfort for those who are watching their power bills rise. Wasn't competition meant to keep prices low? But electricity is not easily translated into a free market. For one thing, no-one (or very few of us) can do without it. In a true free market, the consumer has the option of not using that commodity at all. Just swapping providers is not good enough. Electricity supply is essential for public health and for economic survival in a modern economy. It's an essential service, not just an optional good that you can take or leave, like fizzy drink. Furthermore, much of the supply-chain is naturally monopolistic, in particular the distribution and transmission networks.
Just as it makes sense to have Pharmac as a monopoly purchaser of pharmaceuticals to get New Zealanders a better deal, so it makes sense to have a monopoly buyer of power – just as they do in places like California. It's not strictly a socialist idea, as the Key government is trying to paint it.
My hunch is that the Labour–Green power policy will make many uncommitted voters prick up their ears and shift towards the centre-left. Let's watch what this does to the opinion polls, which were already moving that way anyway.

Let's make the GCSB Director's appointment more transparent

The Prime Minister had great difficulty in telling a straight story about the appointment of the Director of GCSB, at one point saying that the State Services Commissioner appointed him (which is not true), and, at another, saying that it was a ministerial appointment and so it was up to him as PM anyway. This obviously has reflected badly on Mr Key's integrity, especially given that the appointee was, at the least, an old acquaintance. Was he trying to deflect responsibility onto his public-service advisers?
Labour's Grant Robertson has rightly called for 'more transparency' in the process for appointing the country's top spy. After all, it's not as if that person's identity, as chief executive, can or should be a state secret. And we all want to avoid accusations of prime-ministerial favoritism or bungling.
As mentioned in my previous blog, the GCSB Act requires that the appointment of the Director is made by the Governor-General. Note that this is not 'the Governor-General in Council', as is required by the State Sector Act in the case of other public-service chief executive appointments. A meeting of Executive Council requires, for a quorum, at least two Ministers. So the fact that the GCSB appointment is simply made by the GG is significant. The GG is required to act on the advice of his Ministers. In the case of the appointment of the GCSB Director, he would be acting on the advice of the Minister responsible for the GCSB, the Prime Minister, and hence Mr Key was correct in saying that this appointment is, in effect, a ministerial appointment. That is, he gets to decide, and the GG accepts his advice on whom to appoint, potentially without any oversight at all.
Now, I know what you're thinking: Why then did the PM bother to involve the State Services Commissioner at all, when the SSC's processes do not legally need to be applied in this case? He could have just appointed Mr Fletcher and that's that. Well, it still makes sense to involve the SSC's independent selection panel as a way of vetting candidates and having due process at arm's length from the PM. It helps to keep things above board and to make sure that a suitable candidate is selected for such a sensitive post.
The State Services Commissioner, Mr Rennie, has expressed 'surprise', though, that the PM went ahead and made a direct call to Mr Fletcher regarding the position that he, Mr Key, gets to decide upon. This was clearly unwise of the PM, and Mr Rennie said that he would have advised Mr Key, had he known that the PM was intending to make that call, that it would have been better if he (Mr Rennie) were to call Mr Fletcher. For the Commissioner to publicly differ and distance himself from the PM in that fashion shows that there has been a serious rift opened up between the PM and the public service. That alone is bad news.
But, the SSC's involvement in the GCSB appointment is only by convention, and not required by law. The PM could leave the SSC out of it altogether, if he chose, and simply advise the GG on whom to appoint – even though such a short-cut would be unwise and lacking transparency. The Cabinet Manual – a set of guidelines for the executive that has no legal force – does state that the SSC 'also has a role in managing the appointment process' of (among others) the GCSB Director. So this makes it an informal, and not legally mandatory, norm for the SSC to be involved.
But, if we want a more transparent process in future, then I suggest that the GCSB Act 2003 (evidently passed during the Clark years) needs to be amended so that this can't happen again. Labour can call for an inquiry if they like, but the fact remains that Mr Key did nothing illegal – even though he should have told us a cleaner story about what he did do. If Grant Robertson keeps pushing this line for too long, then it may blow back in Labour's face. Because the solution to the basic problem is to amend a law, passed by a Labour-led government, that allows the PM to make a ministerial appointment without proper oversight and safeguards.
Politics aside, I think that the GCSB Act does need to change and that better oversight of the Director's appointment should be legally mandatory in future.

The GCSB Director's appointment process involves the Governor-General

The State Services Commissioner, Mr Rennie, has assured the public that a panel chaired by him interviewed the successful candidate for Director of the GCSB, Mr Ian Fletcher, in July 2011. The Commissioner recommended Mr Fletcher to the Prime Minister (who is Minister responsible for the GCSB), and the Commissioner has assured us that "his candidacy was considered in the rigorous process all chief executive candidates are required to undergo.”

But the GCSB Act does not require the SSC to be involved at all in the appointment of its Director. Section 44 of the State Sector Act 1988 makes it clear that the normal processes under that Act for the recruitment and selection of state-sector chief executives do not apply to the appointment of the Director of the GCSB. Instead, section 9 of the GCSB Act 2003 states that the Director of the Bureau "is appointed by [and] holds office during the pleasure of the Governor-General." It may not be inappropriate that the PM should have been involved or consulted in the appointment, nor that the SSC should have assisted, but, under the law, the appointment is simply made by the Governor-General.

Normally, CE's are appointed by the Governor-General in Council, based on the recommendation of the State Services Commissioner. It sounds like this latter kind of "rigorous process" has been followed, even though the GCSB Act does not strictly require the involvement of the SSC.

But, to make things more interesting, the present Governor-General was himself the former Director of GCSB. According to his own website, "retiring from the NZDF in January 2011, he [Sir Jerry] was appointed as Director of the Government Communications Security Bureau." It was from that very post that he was elevated to his present office by the Queen, an appointment that is made on the recommendation of the Prime Minister. So, in effect, the Governor-General has appointed his own successor to a CE post that reports to the Prime Minister. The Prime Minister recommended Sir Jerry as Governor-General, and then called on his old acquaintance, Mr Fletcher, to apply for the job that the Governor-General had recently vacated and that the Governor-General decides upon.

A "rigorous process"...?