The Constitution Conversation - He kaupapa nui te kaupapa ture

Introduction

The National Government is currently conducting “The Constitution Conversation”; a review of New Zealand’s constitutional arrangements (“review”). The review originates from the 2008 Confidence and Supply Agreement between the Māori Party and the National Government. This review is significant as it calls for public submissions on how we want our country to be run, and includes an inquiry into the role of the Treaty of Waitangi in our constitutional arrangements. However, there are concerns with the scope of the review and whether there is an intention on the part of the Government for the review to give rise to meaningful constitutional change. 

New Zealand’s current constitutional arrangements

A constitution is the rules that determine who exercises power and how they exercise it. Within a constitution there are rules about the powers of Parliament, the powers of the Courts and the Executive, as well as safeguards to prevent the abuse of those powers.¹  kaupapa-nui-te-kaupapa-ture#_ftn1">Put simply, a constitution is about relationships between the Government, the Courts and it is about the rights of citizens.²

Most countries have a written constitution contained in a single written document. New Zealand does not. Unlike most countries, New Zealand has an unwritten constitution, meaning that the rules that determine who exercises power and how they exercise it are to be found in a collection of statutes like the Constitution Act 1986, the Bill of Rights Act 1990 and the Electoral Act 1993, among others. As well as various statutes, New Zealand’s constitution is also made up of the Magna Carta, Court decisions, doctrines, conventions and long standing practices of Parliament.  not. Unlike most countries, New Zealand has an unwritten constitution, meaning that the rules that determine who exercises power and how they exercise it are to be found in a collection of statutes like the Constitution Act 1986, the Bill of Rights Act 1990 and the Electoral Act 1993, among others. As well as various statutes, New Zealand’s constitution is also made up of the Magna Carta, Court decisions, doctrines, conventions and long standing practices of Parliament.³

It is now generally accepted that Treaty of Waitangi is also part of New Zealand’s unwritten constitution. This is because the Treaty of Waitangi is the document upon which the New Zealand Parliament claims legitimacy or the sovereign right to make laws in New Zealand. 

Professor Burrows states that, someone wanting to find the New Zealand constitution would need to piece it together and then try to understand it.⁴kaupapa-nui-te-kaupapa-ture#_ftn4">  Burrows also provides that a constitution has to fit the culture and character of a country and, if this is so, our constitutional arrangements are seriously outdated and in need of change given that New Zealand now has more international relationships, the relationship between local and central government is changing and the population demographics are shifting rapidly.⁵kaupapa-nui-te-kaupapa-ture#_ftn5">

Constitutional advisory panel and scope of review

The review will be conducted in consultation with a reference group of members of Parliament from across the house. In addition, an independent Constitution Advisory Panel (Advisory Panel) comprising of a cross-section of the public was elected to carry out the public consultation and engagement programme. Members of the Advisory Panel include Emeritus Professor Burrows (Co-Chair), Sir Tipene O’Regan (Co-Chair), Deborah Coddington, Peter Chin, Sir Michael Cullen, Hon John Luxton, Bernice Mene, Dr Leonie Pihama, Hinurewa Poutu, Professor Linda Tuhiwai Smith, Peter Tennent and Dr Ranginui Walker. 

The review seeks opinions from the public on what is important about how New Zealand is run, in particular: 

• The pros and cons of having our constitution written down in a single document; 
• The role of the Bill of Rights Act 1990 in our constitution; 
• The role of the Treaty of Waitangi in our constitution; 
• How Māori views should be represented in national and local government; 
• Electoral issues such as the size of Parliament and the length of its term. 

Opinions on the review

There are differing opinions on the review itself. 

On the review, Deputy Prime Minister Bill English said, "We believe our constitutional arrangements work pretty well and there would need to be a pretty broad consensus for change, and this group has the opportunity to see if that consensus exists”.⁶kaupapa-nui-te-kaupapa-ture#_ftn6">

Commentators at the Te Papa o Tongarewa Treaty Debates themed “Constitutional Review” said that New Zealand is in a constitutional coma, and there is a general apathy because New Zealand has free democratic elections and a generally stable government. It was also noted that stimulating public engagement and building trust in the review will be a difficult task for those leading the review.⁷kaupapa-nui-te-kaupapa-ture#_ftn7">

In addition, the fact that the current constitutional review or “The Constitution Conversation” originates from the 2008 Relationship and Confidence and Supply Agreement between the Māori Party and the National Party is a concern for some who believe that the review, having its origins in a political compact, means there is no genuine motivation from the National Government for constitutional change.⁸kaupapa-nui-te-kaupapa-ture#_ftn8">

The Iwi Working Group on Constitutional Transformation came together in 2012 and is led by Professor Margaret Mutu and Moana Jackson. The purpose of the group is to engage with Maori and to work on developing a model constitution for our country based on Maori kawa and tikanga, He Whakaputanga o te Rangatiratanga o Niu Tireni and Te Tiriti o Waitangi.⁹ kaupapa-nui-te-kaupapa-ture#_ftn9">Jackson’s view is that any constitutional review should proceed “with time”, preferring to look at it as “constitutional transformation” rather than constitutional change or reform:¹⁰kaupapa-nui-te-kaupapa-ture#_ftn10">