Talking about a New Zealand constitution

POLITICAL AGENDAS: The status of the Treaty of Waitangi motivated the constitution debate.
POLITICAL AGENDAS: The status of the Treaty of Waitangi motivated the constitution debate.

You might have seen the TV ads. Pio Terei and Bernice Mene leap about a studio asking viewers if they've heard about the "Constitution Conversation", to the sound of a catchy jingle channelling 1970s funk.

"This," says Terei, in the patented regular-Kiwi-bloke manner that also saw him front those ads plugging Freeview digital TV, "is big-picture stuff, people!" He's right, but it's a big picture that not many people were spending much time looking at until the Government begged them to.

Terei and Mene are the public face of a $4 million government-sponsored campaign to spark a national conversation about some of the fundamentals of how New Zealand is run. Things like: How many MPs do we really want? Do Maori really need their own seats in parliament? Should we have a written constitution like the one in the US, which allows judges to overthrow laws that are "unconstitutional"? And, most importantly, what do we do with the Treaty of Waitangi?

New Zealanders have until July to talk ourselves blue in the face, then get submissions in to a 12-strong "Constitutional Advisory Panel" (including Mene) who'll then digest it all and report back to Maori Party co-leader Pita Sharples and National's Deputy PM Bill English, who will be required to do, well, nothing in particular.

So you've got to ask - what's the point of all this?

In a way, the answer's simple: National is honouring the promise it made to the Maori Party when negotiating its 2008 coalition pact: To lead a consultation exercise on the constitution.

It's no secret that the Maori Party's agenda here is to elevate the status of the Treaty of Waitangi. But along the way, the project has changed focus.

When Sharples and English announced the finer details in December 2010, they might have been launching two totally different ships. Sharples leapt right into a stern history lesson about the place of the Treaty. In English's speech, the Treaty was only the sixth of a long checklist of issues, behind thrilling stuff such as the size of parliament and the shape of electorates. It looks suspiciously like National has managed to water down the Maori Party's medicine.

There is now such a mish-mash of topics to discuss, that capturing the nation's views could be like leaving a tape recorder running in a pub. You're likely to hear people noisily arguing at cross-purposes about subjects they don't quite understand, eventually forgetting what they were talking about and then exchanging hugs - or punches - just before closing time.

There are disagreements already. The conservative New Zealand Centre for Political Research thinktank, alarmed by the "racially-stacked" panel, has created its own Independent Constitutional Review Panel chaired by Canterbury law lecturer David Round, with the goal of heading off the Maori Party plan to "give the tribal elite supreme power in New Zealand".

Swinging its fists from the other direction comes Aotearoa Matike Mai - an "Independent Iwi Constitutional Working Group", run by Auckland University professor Margaret Mutu and lawyer Moana Jackson, which has been running hui around the country to discuss the constitution in parallel with the official talkfest. Unlike English, this group isn't beating about the bush - its intent is to figure out "not how the Treaty might fit into a constitution, but how a constitution might be based upon the Treaty".

Lurking somewhere in the middle, Radio New Zealand has hosted a series of public debates, and Wellington thinktank the McGuinness Institute has sponsored an independent project called EmpowerNZ, where 50 young New Zealanders were asked to write a brand new constitution.

And then there are the crazies. On Friday morning the most recent contribution to the conversation's official Facebook page was an explanation of the terrifying parallels between modern Maori activism and Nazi ambitions in 1939.

Public law expert Dr Matthew Palmer says it doesn't really matter that the whole "Constitution Conversation" exercise is the outcome of a watered-down backroom political deal - there's still value in getting a public conversation going.

People aren't interested in the constitution until something goes horribly wrong, says Palmer, at which point it's usually too late. Take 1984, when National prime minister Robert Muldoon had lost the election but defied the convention that he take orders from the incoming Government, refusing to devalue the dollar. That was perilously close to a constitutional crisis.

So the time to talk about change is "when there isn't a sense of crisis" - a time like now, says Palmer. "If you're dealing with constitutional change in the middle of a crisis, you're likely to make the wrong decision."

Even if no one is much interested at first, such debates can "get a life of their own". Consider the introduction of MMP. A 1986 royal commission recommended proportional representation and Labour ignored it, but within 10 years support grew to the point where it was put to a referendum and became law.

Political commentator Chris Trotter draws a rather different lesson from our switch to MMP voting. That reform resulted from widespread discontent about the apparent impossibility of getting the government you wanted under the first-past-the-post system. So the people spoke.

"Constitutional change that's of any worth only ever occurs because it is something that large numbers of people want and are willing to organise themselves to get," says Trotter.

He sees no evidence of anything of that sort behind a government-mandated "Constitution Conversation". Switching from a three-year to a four-year parliamentary term, for instance, "is an artificial issue. There wasn't an organisation out there called ‘Four Years Now!' lobbying and writing oped pieces. It's entirely manufactured". And a bit murky.

"The whole reason for this exercise is that the Maori Party and its supporters would like to entrench the Treaty in New Zealand's constitutional arrangements," says Trotter.

"Fine - let's have that debate. If taxpayers' money is going to be spent, let's say ‘Look, the Maori Party and National have agreed to ask you, the citizens, if the Treaty should be entrenched in our constitution. What do you think?' But they don't say that, and that to me smacks of bad faith." Even those chirpy TV ads get up Trotter's nose. He says they're "condescending and insulting", giving the impression that selecting constitutional arrangements is a matter of taste, like choosing flavours of icecream.

Worse, the ads seem clearly aimed at a Maori audience, which is potentially alienating for non-Maori. "It's not a script that's very welcoming to Pakeha New Zealand - it sort of strobes ‘it's not your discussion'." The clincher for Trotter, though, is he sees no need for constitutional reform in New Zealand. As he sees it, New Zealand already has an impressively democratic system. We elect MPs. They make the law. If the law is bad the government is defeated. There are judges changing those laws in the American manner. And every three years we have the option of shaking things up.

"That's the way we like it. It's real simple. Very few countries have such a simple system." Sharples accepts there's "an element of truth" in criticism of the consultation exercise as being aimed at Maori to the possible exclusion of non-Maori.

"I want Maori to seriously consider the future of the Treaty. It's no use saying year after year ‘it's against the Treaty' if the Treaty isn't represented somewhere in our modern constitution."

Does he seriously think that, even if the "Constitution Conversation" reveals New Zealanders are gagging for the Treaty's status to be formalised, National will have any appetite for acting on that?

Sharples points to some hopeful precedents. National came into government with a policy of dismantling the Maori seats, but after the Maori Party went into coalition with them the seats were left alone. The Government talked tough about removing Treaty references from the Resource Management Act and from the laws permitting state asset sales, and twice the Maori Party stayed National's hand.

"One must always believe it is possible, otherwise why go through the exercise?"

To avoid disappointment though, Sharples has other, less lofty, goals too. "A good outcome would be a thorough discussion and better education around the position of Te Tiriti o Waitangi."

Palmer thinks the consultation will have some tangible results, even if the big stuff doesn't happen straight away.

In the short term, expect minor tweaks: perhaps a four-year electoral term and minor changes to electoral rules, such as preventing electorate MPs from pulling in colleagues from their party list if they've polled below 5 per cent.

But one day New Zealand is going to have to deal with a couple of bigger issues, Palmer says: whether we want to be a republic, and what to do about the Treaty.

As long as the Treaty has an incoherent place in our constitution, there will be uncertainty and fear about what it means and its implications, he says.

"At the moment, neither Maori nor Pakeha know whether a particular issue concerning the Treaty or allegations of breaches of the Treaty will be solved politically, through the courts, or some mixture of the two. At the moment it's a patchwork quilt of references to the Treaty. It depends on the act, and how you feel on the day."

This year's consultation exercise, complete with a funky soundtrack and cheesy TV ads, may not be enough to get the Treaty issue over the line, but all that national nattering won't be wasted, says Palmer. All those little state-funded conversations will feed into the larger, unstoppable conversations about republicanism and the Treaty already rumbling along.

The conversation, says Palmer, "will be ongoing".


Is it time to dump the Queen and elect President Richie McCaw? Is it time we gave another species a go at being New Zealand's national bird? Do you fancy a fresh new flag? In the spirit of the Constitution Conversation the Sunday Star-Times wants your views about which New Zealand traditions could do with a shake-up. Have your say.

Sunday Star Times