29 May 2013


Winston Peters has used the cover of parliamentary privilege to accuse Peter Dunne of having leaked the Kitteridge report into the GCSB. But, at the time of writing this, I have yet to hear of Mr Peters producing any evidence to back this up.
Unless Mr Peters has some credible evidence, we should treat his allegation against Mr Dunne as nothing but political theatre. His surprise attempt to embarrass Dunne in front of a parliamentary select committee could have been intended to damage one of the links supporting the National-led government.
As for Mr Dunne, he has denied leaking the report, and I can see no political reason why he would have done so. What could he have gained from it, as against the risk of being found out?
In the meantime, we should await the results of the investigation into the leak of the Kitteridge report. Maybe we’ll find out one day who did leak it. But, from the point of view of the average citizen, it really makes no difference ‘who-dunne-it’. The Kitteridge report was going to be released at later date anyway.

24 May 2013

Māori Representation

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

How should Māori views be represented in Parliament?
The immediate constitutional question behind this is whether New Zealand should retain a Māori electoral roll and Māori seats. See my recent post on the Māori seats.
The Māori electorates have been criticized for being tokenistic and ineffective in representing Maori views, on the one hand, and racially separatist and a form of special treatment for a minority, on the other. Their existence is evidently controversial, but neither of the main two political parties has been determined to terminate them, each for its own well-known political reasons. The Māori seats have, however, made it possible for the Māori Party to make a difference in parliament and government, and this has been a beneficial political development.
The existence of the Māori seats has become, however, inconsistent with the principle of an equal and non-discriminatory right to vote. There was good reason to introduce them in 1867, as Māori were effectively disfranchised by the electoral system of that era. The problem identified at that time no longer exists, and it can only be a matter of time before the Māori seats are abolished.
The question is how much time, and this is a matter that should not be forced through. Māori seats should remain in place until such time as Maori are prepared to relinquish them. They should not be entrenched in a written constitution, as they should be regarded as a ‘temporary measure.’ Article 3 of the Treaty grants to Māori equal rights as ‘British Subjects’ – which we must now read to mean ‘New Zealand citizens’ – and they are bound by the law, including the electoral law, in the same manner as other citizens. The Māori seats appear to be an exception to this Article. They may be consistent with Article 2, at a stretch, however. But the letter of the Treaty does not compel us to retain the Māori seats, nor to entrench them in a written constitution.
A ‘bicultural’ upper House is not recommended either. The idea that Māori are the ‘Treaty partners’ and therefore should be represented in a special 50/50 bicultural forum, over and above the House of Representatives, is not justifiable. There is nothing in the Treaty to directly mandate such an institution, and the idea diverges too far from the principles of proportionality in the legislature and equality among voters.
The representation of Māori views in parliament is not only a question of having or not having special Māori seats or forums, however. The answer to this question is largely political and goes beyond the constitutional scope of the present ‘conversation.’ There are 20 Māori MPs presently, seven of whom represent Māori seats. It is thus up to all political parties to represent Maori views, according to their own processes and policies, and to be accountable to voters for that.

How could Māori electoral participation be improved?
Māori electoral participation, notably in the Māori electorates, is particularly low. Voter turn-outs have been dropping in recent decades across the board, and this is more pronounced among lower socio-economic groups and the young. The low participation rates by Māori are unfortunately consistent with that. No-one to my knowledge has come up with an effective way to raise voter turn-outs, however, and the problem is a deep-seated one that must be addressed politically. Again, I see this question as being a political question, rather than a constitutional one. There is no strictly constitutional solution to this at present, as the Electoral Commission does all it can to encourage people to register and to vote.

How should Māori views and perspectives be represented in local government?
There is presently a statutory provision for Māori wards in local government, but so far only one local authority has adopted them. The Auckland Council was denied them, controversially, in its empowering legislation.
Effective governance at the local level needs to take into account the authority and cultural values of mana whenua, and so some means of representation of Māori views should be routine. There is no compelling case to force all local authorities to have Māori wards, however, either in statute or in a written constitution. Locally appropriate democratic and consultation processes should be found to include and represent Māori views, or to ensure the election of mana whenua representatives to Councils.
As for the role of a written constitution, then, it may be necessary to go beyond the ‘bottom-line’ principle of non-discrimination in regard to the local representation of indigenous communities. This should not go so far as to entrench Māori local wards. But a constitution could at least permit such solutions, in as much as they are considered appropriate for the time being by a local authority, and in the interests of rectifying disadvantage or under-representation. Such wording would need to be consistent with the UN Convention on the Elimination of Racial Discrimination, which allows for ‘special measures’ for groups that have suffered past discrimination.
Thus, if a local body chose to adopt Māori wards, then the measure would at least not be unconstitutional.

In addition, Treaty settlement negotiations will still create possibilities for local iwi/Crown co-governance arrangements, for contracts with government for by-iwi-for-iwi service delivery, etc. But these are matters for negotiations and do not require a mandate in a written constitution.

19 May 2013

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.

17 May 2013

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.

10 May 2013

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.