A New Zealand constitution an excellent idea

Sir Geoffrey Palmer advocates a written constitution.
CHRISTINE CORNEGE/FAIRFAX NZ

Sir Geoffrey Palmer advocates a written constitution.

OPINION: It is unfortunate that Sir Geoffery Palmer only had an audience of about 200 members of Continuing Education Trust at Hamilton's Hillcrest Baptist Church last week.

Everyone with an interest in our security and personal freedoms we take for granted should get involved in this debate. Those freedoms are not adequately protected and could be removed by Government at any time. 

Sir Geoffrey, in promoting his new book, was talking about the idea of a New Zealand constitution and warned that New Zealand's current constitutional situation was open to exploitation by a Donald Trump-like politician with little to stop him (or her) from "doing crazy things".

Sir Geoffrey, a renown and respected constitutional lawyer and former prime minister, said recent international developments showed why New Zealand needs a formal constitution. He has written a proposed one for New Zealand with colleague Dr Andrew Butler and they are seeking submissions and promoting the book to audiences around the country.

Such a constitution would provide certainty for, and prudent constraint on, governments and would give confidence and protection for all New Zealanders, provided that the constitution could not be amended or repealed without the overwhelming will and mandate of the nation via a binding referendum specifically and solely for that purpose.

The fact that some politicians have already said a written, entrenched constitution would be a hindrance to government suggests it is probably a good idea.

Unfortunately, every time the possibility of a New Zealand constitution is raised, some ill-informed activists raise the artificial spectre of the Treaty of Waitangi being included.

Such people tend to conveniently overlook the fact that one of the most important principles of the Treaty of Waitangi, and British law, was the right to own property and resources either collectively or privately free from interference of the state.

That principle was established by the Magna Carter in 1215, encapsulated in British law in 1582, and simply repeated in Article Two of the Treaty of Waitangi of 1840; it should apply to all New Zealanders equally. It does not.

The right of Maori, and other New Zealanders, to own land and resources is a common law right, established in New Zealand by the Treaty of Waitangi when British law was introduced, rather than a "Treaty right" as such, which is a concept without robust legal foundation. It is a right, however, which Maori have been denied many times. Many traditions were outlawed and many unjust restrictions were placed on a free-living people. Some of these are still applied to Maori tribal land and activities today.

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All that Maori people have ever asked for was to be treated the same as all other New Zealanders: to have their pre-1840 individual and tribal property rights recognised and protected as common law rights and to have the same freedom to manage their own affairs without interference as all other people.

Maori have never asked to be treated as special or different; only that those things which properly belonged to them prior to 1840, and which they have not willing relinquished, should still be safe in their ownership after 1840. That reasonable and lawful expectation has been, and still is, denied them in many instances today. No other sector of New Zealand society would tolerate that imposition.

The reality is that all the essential components of a New Zealand constitution already exist in several statutes, case law and tradition. Some of them, such as the Freedom of Information Act (1982) and Bill of Rights Act (1990) are relatively well known, but other elements can be difficult to find and identify.

Sir Geoffrey said Parliament had legislated to remove rights, guaranteed by the New Zealand Bill of Rights Act of 1990, no less than 37 times, which is an indication of how fragile New Zealand's constitutional system is.

They have written a 40-page document which pulls together all the current rights and freedoms of the country and added privacy, property, environment and education rights. It would empower the courts to enforce citizens' rights, but differ from the United States, as it would still give politicians the final say provided a majority of 75 per cent of Parliamentarians supported any changes.

Pulling all the existing laws which protect us from political exploitation together into a single, all-encompassing, entrenched and supreme document is both logical and long overdue.

 

 - Stuff

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