Concerns about Constitution proposals

Dr Andrew Butler and Sir Geoffrey Palmer have proposed a constitution for New Zealand. This is far from a new topic for Palmer.

Dr Bryce Wilkinson at the New Zealand Initiative has some concerns, to the extent that he thinks there is No need for a constitution:

Dr Andrew Butler and Sir Geoffrey Palmer’s new book, A Written Constitution for Aotearoa New Zealand, proposes radical changes.

This is not entirely a surprise. Sir Geoffrey railed eloquently for decades against unbridled (parliamentary) power. He long advocated MMP as part of the remedy. The title of his 1997 book, co-authored with his son Dr Matthew Palmer, now a High Court judge, was Bridled Power.

That book also included a proposed written constitution, making it clear that bridled power was not enough. 
Its s54 conferred massive discretionary power on the High Court. Anyone could ask it to stop any law or government action that it deemed to be inconsistent with the proposed constitution. 

Unbridled power
The court could order any remedy that was “fair and reasonable in the circumstances.” Parliament appeared to have no ability to respond. S3 decreed the constitution prevailed; s2 entrenched it. The problem with this, of course, is that it confers unbridled power on unelected judges.

The Butler and Palmer proposal is marginally more nuanced. It gives Parliament 12 months to validate a law the Supreme Court considers unconstitutional. However, that validation requires the support of 75% of all parliamentarians. That looks a remote prospect under MMP. Minor parties would hold the major governing party to ransom.

This nuance aside, their proposal increases the need for political decision-making by the Supreme Court. In particular, many of the provisions seek to entrench rights to other people’s money.

One new right is an “adequate standard of living.” Another is to a “free” state education.” Does this means someone who chooses not to work for a living is entitled to an “adequate” standard of living , while tax-funded spending is anything but free?

Sounds almost like a socialist constitution. Wilkinson prefers that in a social  democracy, political decisions are best made by voters, either directly or through their elected representatives. Not by Supreme Court interpretations of a constitution.

Wilkinson says that the status quo is unsatisfactory, but we need to improve on what we have, not cobble representative democracy.

What about the proposed constitution as a whole? It is hard to escape the feeling that it aims to saddle future generations with the entitlement follies of the past half century, along with a new folly of unbridled power for unelected judges.

The strongest case against a written constitution for New Zealand is that we would make a mess of it. We presume too much if we think our generation knows best. Regardless, I wonder if Sir Geoffrey has any objection now to the proposed Regulatory Responsibility Act that would not apply with much greater force to his own proposal.

Website: A constitution for Aotearoa New Zealand

Our proposal: a modern constitution that is easy to understand, reflects New Zealand’s identity and nationhood, protects rights and liberties, and prevents governments from abusing power.

The Law Foundation is backing Palmer’s work: Towards a written constitution for New Zealand

The Law Foundation is backing work led by former Prime Minister Sir Geoffrey Palmer to draft a model New Zealand Constitution as a basis for public debate.

The project is based on Sir Geoffrey’s view that New Zealand’s present constitution is “dangerously incomplete, obscure, fragmentary and far too flexible.” He says the country needs a constitution that is “fit for the modern age” to prevent governments from abusing power.

Unlike other countries, nearly all of New Zealand’s constitutional rules could be altered too easily by simple majorities of MPs, he said. “Public power ought not to be at large, untethered and without anchors.”

The proposed flexible New Zealand constitution will be designed to protect the freedom of individuals, advance open and transparent institutions and offer efficient accountability mechanisms.

Public participation and involvement in decision-making should be encouraged, he said. A constitution was for the people, so the authors would issue their proposals for public feedback before making a formal submission to Government.

For example, the proposed new constitution would replace the Crown with a legal entity of the State. Sir Geoffrey said it was possible to retain the monarchy and create the State, and whether the Queen then remained Head of that State would be up to New Zealanders.

“Opinions will differ on what precise powers should be distributed where and this is an important reason whereby we propose to take comments and submissions from the public before we express our final view in 2017 on what should be in a constitution for Aotearoa New Zealand.”

Next Post
Leave a comment

62 Comments

  1. “Sounds almost like a socialist constitution.”

    I’d call it humanist, a complete rejection of the rule of law in favour of United Nations doctrine, like a reverse Brexit. The Crown’s civil government has never been consistent with NZ’s unwritten constitution, looking to state actors for answers to this problem is the height of absurdity.

    To understand the constitution you’ve got to understand the nature of the forces which bought it into being back at the time of King Alfred the Great. What Palmer and Butler are proposing essentially ignores these forces, as if the English constitution was a result of the Norman Invasion.

    Reply
  2. Alan Wilkinson

     /  2nd October 2016

    This section of Bryce’s commentary is worth repeating, and is referenced in his last paragraph Pete cited above:

    Yet the status quo is unsatisfactory. Sir Geoffrey is rightly concerned that too many laws and regulations fail to comply with good law-making principles. We may differ over the reasons. Sir Geoffrey argues the problem is haste due to the three-year parliamentary term. But do countries with four-year terms do better? Interest group politics and political expediency know no time limits.

    In a 2001 report for the NZ Business Roundtable I proposed a Regulatory Responsibility Act, modelled on the Fiscal Responsibility Act. Parliament would require those developing laws and regulations to certify whether they complied with enumerated legal and economic principles. Public opinion alone would discipline transgressions. The enumerated principles included compensation for property rights taken or impaired by the Crown. Strangely, this venerable principle was not included in the Palmer and Palmer 1997 constitution.

    Good laws
    In 2009, I was a member of a government taskforce charged with ensuring parliamentary laws better accorded with broadly accepted principles of good legislation. The proposal developed 11 principles under six headings. These comprised the rule of law, liberties, taking of property, taxes and charges, the role of the courts and good law-making.

    To strengthen the certification discipline, its proposal allowed the courts to declare that a government measure was inconsistent with the listed principles. This power was purely declaratory. The offending law or regulation would remain. The court could not offer the plantiff any remedy. In short, the power was like a slap with a wet bus ticket.

    So did Sir Geoffrey support this proposal or did he reject it on the grounds that it fell lamentably short of the powers he would confer on the courts?

    It was neither actually. He rejected it because it amounted to “a substantial constitutional change.” Really?

    “It can be seen”, he continued, “as a shift in power away from executive branch of government towards the courts.” Well, he couldn’t support that, could he? Next he questioned the legitimacy of such a shift in power. Good question.

    In the same article he wrote that the “implied message in the changes proposed is that ministers make bad choices and must be prevented from making them. In democratic terms this is a highly arguable proposition.”

    Yet, if ministers don’t make bad choices why seek to bridle ministerial power in the first place? And why is his written constitution needed?

    Contrary to Sir Geoffrey’s assertion, the taskforce’s proposal did not prevent Parliament from passing any law or regulation. Instead, it aimed to induce better compliance with sound principles during policy processes.

    Reply
  3. Alan Wilkinson

     /  2nd October 2016

    It’s hardly a stunning surprise that the Law Foundation (an independent Trust) is backing Butler and Palmer since it’s Chairman is one Dr Andrew Butler.

    Reply
    • Gezza

       /  2nd October 2016

      Well, the same attitudes for and against the proposed new Constitution might just run in some families Alan. I can see it in two families already. 🙂

      Reply
  4. “In 2009, I was a member of a government taskforce charged with ensuring parliamentary laws better accorded with broadly accepted principles of good legislation. The proposal developed 11 principles under six headings. These comprised the rule of law, liberties, taking of property, taxes and charges, the role of the courts and good law-making.”

    “Sovereignty and legislature are indeed convertible terms; one cannot subsist without the other.” ~ Blackstone.

    “In general, all mankind will agree that government should be reposed in such persons, in whom those qualities are most likely to be found, the perfection of which is among the attributes of him who is emphatically styled the supreme being; ”’the three grand requisites, I mean, of wisdom, of goodness, and of power”’: wisdom, to discern the real interest of the community: goodness, to endeavor always to pursue that real interest; and strength, or power, to carry this knowledge and intention into action. These are the natural foundations of sovereignty, and these are the requisites that ought to be found in every well-constituted frame of government.” ~ Blackstone

    Reply
  5. Ray

     /  2nd October 2016

    The biggest problem I have with Palmer’s written constitution ideas, which he has been peddling ever since he left Parliament, is instead of the elected parliamentarians having power it is handed to the Courts.
    Not sure having a bunch of unelected self selected lawyers is going to make NZ a better place for the rest of us!

    Reply
    • The distinction between the judicial and legislative/executive branches is from Roman law, not from England’s constitution, where the king, as sovereign, ruled both the judiciary and public policy. In some circumstances the English Parliament could function as a court of administration of due process. The separation of powers is no substitute for true sovereignty.

      Reply
  6. Anything Palmer touches is destined for failure. His ego does not allow for him to ever be wrong, he has fragile fingers, and believes that he alone has a monopoly of the truth. When I look at the state of our judiciary, especially at the highest levels, I despair and call for the return of the Privy Council to our democracy as the ultimate check and balance on incompetence of the judiciary and the executive. Our Government structure should be designed to meet the demands of the 21st and 22nd centuries and not be mired in the 19th Century. Small Government, directly accessible by the public and designed for effective and efficient decision making should be the norm and we need to move away from ideological debate to rational problem solving techniques constrained by the realities of a comprehensive knowledge of the limits of the wealth of our nation. The pursuit of happiness, efficiency and innovation should occupy a high place in our endeavours.

    Reply
    • Alan Wilkinson

       /  2nd October 2016

      Rodney Hide has a relevant NBR article this week pointing out the disgraceful failure of Corrections to calculate prisoner release dates properly, subsequent failure of the High and Appeal courts to rule correctly, finally corrected by the Supreme Court only to have Judith Collins threatening retrospective legislation to prevent damage suits and to continue treating remand prisoners unfairly as well as incentivising prosecutors to delay laying additional charges as a means of extending sentences without judicial oversight.

      Reply
      • Alan “the disgraceful failure of Corrections” I assume is a Hide assertion. It does not recognise that “in good faith” the Corrections staff used a Judicial decision for their calculations and that decision was subsequently overturned by a higher court. I believe there was
        “no malice behind the decision” merely public servants doing what they believed to be the law. Hide and other seem to be revisiting what happened with GCSB and Dotcom for what purpose other than to slag off at the Public Servants?

        Reply
    • The Privy Council originated as the king’s court, it wasn’t part of any democracy.

      Also rational problem solving and the recognition of the value of the pursuit of happiness are existing features of NZ’s unwritten constitution, although largely ignored by the body politic.

      Reply
      • Ugly, you assert the Privy Council wasn’t part of any democracy. It still exists in the remnants of the United Kingdom. Do you really believe the UK is not a democracy?

        Reply
        • The UK is not a real kingdom. The king can do no wrong, yet the UK is culpable of war crimes.

          Reply
        • Also Ugly Truth, if you are answering questions and as you say, “The separation of powers is no substitute for true sovereignty”, please can you define what you believe “true sovereignty” is?

          “Hobbes’ hypothesis—that the ruler’s sovereignty is contracted to him by the people in return for his maintaining their physical safety—led him to conclude that if and when the ruler fails, the people recover their ability to protect themselves by forming a new contract.

          … the people are the legitimate sovereign. Rousseau considered sovereignty to be inalienable; he condemned the distinction between the origin and the exercise of sovereignty, a distinction upon which constitutional monarchy or representative democracy is founded.”

          https://en.wikipedia.org/wiki/Sovereignty

          Reply
          • Hobbes is not a reliable source on sovereignty, Blackstone is.

            Sources of the law: The origins from which particular positive laws derive their authority and coercive force. Such are constitutions, treaties, statutes, usages, and customs.
            In another sense, the authoritative or reliable works, records, documents, edicts, etc., to which we are to look for an understanding of what constitutes
            the law. Such, for example, with reference to the Roman law, are the compilations of Justinian and the treatise of Gaius; and such, with reference to the common law, are especially the ancient reports and the works of such writers as Bracton, Littleton, Coke, Fleta, Blackstone, and others.

            Reply
          • The text was from Black’s dictionary of law, 5th edition.

            Reply
  7. Gezza

     /  2nd October 2016

    I haven’t read it yet. I like the idea of our bitsy piecemeal constitution being pulled together and tidied up in one document. Court decisions already make up some parts od our constitution, so they already have a signifcant influence, it seems. If the intended provisions contain waffly, vague principles it won’t be much good, and won’t get anywhere.

    If on the other hand it comes out of this consultation process with such provisions tightened up or abandoned, making sense, and confirming or existing personl freedoms and and other individual & property rights, and sensible constraints on the ability of governments to legislate those away, It could be a good idea.

    I need to read the thing first before making amy initial judgements. I’m not going to assume before then that it’s seriously flawed, if it’s politically fixable before and after implementation, and if it would only be implemented after robust debate, massive public education, and a public referendum.

    If it’s better, at the end, than what we have now, the Courts can only decide whether or not some law which breaches it is unconstitutional and block it. If a super majority or public referendum can amend it to fix a genuine problem caused by the Court, fine. Getting the provisions right in the first place is the key to whether that is a problem.

    I think it’s a good idea to put it up on a website and get it discussed. If it fails because it’s unintelligible or vague or removes exisiting personal, protections and rights, so be it. But at least we can find out whether Palmer has anything to offer and whether he has learned anything useful since 2009.

    Reply
  8. Pickled Possum

     /  2nd October 2016

    The way I see it from my perpective.
    I see Mr Palmer et al trying to make a way for Maori Not to be forgotten,
    To be part of a new constitution as a recognised partner in this land. Naive? maybe.

    Elected MPs being the Law Changes of this country has not and is not good for Maori.
    Doesn’t matter where that originated, from which country … all I need to know is,
    That it does not work for Maori. eg Tuhoe 8

    Judges having the right to Re- evaluate the law, that the government make ?
    That seems fair … Making sure you THE GOVERNMENT stay on the straight and narrow.

    It is a suggestion that we get together and work it out starting from the treaty.
    To write a constitution that fits both cloaks.

    BJ … I do not believe In “the pursuit of happiness” Happiness. It is not something I pursue it is an emotion brought on by a great environment. So I live in Happiness a large/MOST part of my life. 🙂

    Reply
    • Blackstone described the pursuit of happiness as a beneficial consequence of a natural sense of justice, and attributed this consequence to divine design.

      Reply
    • Pickled Possum

       /  2nd October 2016

      Will Smith from the movie ‘Pursuit of Happiness’ described the pursuit of happiness as ‘this part of my life … this part right here. This is called happiness’.

      Reply
  9. I guess I understand that Butler and Palmer are selling a book as well as an idea and proposed course of action, however I take some exception to their claim they are “Starting the Conversation” since in the last 6 or 7 years alone there have been two substantial Constitutional evaluation-consultation-development processes: Constitutional Advisory Panel 2011 and Matike Mai Aotearoa Iwi Leaders Group Report 2016. Although I’ve only skimmed ‘Constitution Aotearoa’ so far, I can find no mention of either of these …

    http://www.ourconstitution.org.nz/A-Written-Constitution

    http://www.converge.org.nz/pma/iwi.htm

    It’s good that Bryce Wilkinson hears alarm bells and hopefully engages in the conversation, although I’m not sure a ‘private’ website is exactly the place to do it?

    I too hear alarm bells ringing in the distance when I see “I proposed a Regulatory Responsibility Act, modelled on the Fiscal Responsibility Act. Parliament would require those developing laws and regulations to certify whether they complied with enumerated legal and economic principles.”

    Reply
    • “I’m not sure a ‘private’ website is exactly the place to do it?”

      I expect that some authors don’t want to deal with the spam that unmoderated criticism could invite. Perhaps a solution would be to set up a public index of authors who want to publish their ideas on what NZ’s constitution is or should be?

      Reply
      • Alan Wilkinson

         /  2nd October 2016

        The NBR is not a “private” website. Nor is the NZ Initiative website – unless you think the only place to debate this is a government website?

        Reply
      • @ Ugly – Do you mind me calling you Ugly? “Perhaps a solution would be to set up a public index of authors who want to publish their ideas on what NZ’s constitution is or should be?”

        Yes, I think something must be done to circumvent any possibility of –
        1) Selective ‘editing’ of ideas & suggestions by Palmer & Butler
        2) Other experts, commentators and public feeling its a closed forum
        3) Other considerations I haven’t even thought of ……………..?

        How do we establish a forum representing the people when their accepted ‘representative’ forum is often referred to as government? So yes Alan, a government website may be more appropriate. Or appropriate in addition to CA, CAP, Matike Mai et al. Perhaps more than one ‘public’ website and one government one … ?

        Will Bryce be taking part fully in ‘The Conversation’ at ‘Constitution Aotearoa’? I imagine probably not since it was someone else’s idea and forum. Will he and many others simply snipe at them in other publications, websites and blogs?

        I can just imagine in 5 or 10 years when a new Constitution is enacted and thousands of would-be experts and ordinary citizens suddenly emerge from the woodwork to say, “No-one ever asked ME”! That’s the reason for making it as public, accessible and participatory as possible IMHO, although it will never reach or satisfy everyone. I bet there’s a few Native Americans none too happy about the Constitution of the ‘United States of America’ …. formerly the ‘nations’ of Sioux, Cherokee, Comanche etc etc …

        Reply
        • Alan Wilkinson

           /  2nd October 2016

          I imagine he may let his previous contributions speak for themselves, PZ, unless or until there is a Parliamentary process underway.

          Reply
          • I’d like to be more active in this, but I’ve got to budget my time.
            I think it’s important to have a well specified goals so that workable strategies can be developed, especially relating to indexing strategies, so that the various audience groups don’t TL;DR

            Reply
        • Hi PartisanZ,

          Don’t mind being called Ugly. Sorry about the delay in responding.

          “How do we establish a forum representing the people when their accepted ‘representative’ forum is often referred to as government?”

          Techincally there’s no difficulty, I’m happy to set up and host a NodeBB forum that could do the job. The big question is whether or not it could gain critical mass in terms of audience, I guess it’s just a question of grass-roots support for an open access forum for ideas about a written constitution.

          As far as content goes I’d envisage setting up separate categories for meta-issues (eg for scope, indexing, and bias avoidance), authors & sites (for already established web content), and public (general discussion).

          Reply
    • “Why?” I [don’t] hear you ask, should alarm bells ring about the Fiscal Responsibility Act?

      For very good reason in my opinion. The Reserve Bank Act and FRA are ordinary statutes, passed into law by a simple majority of Parliament. “The strategy to neutralise the influence of electoral democracy over these policies dates back to Milton Friedman ‘Capitalism and Freedom’ … Statutory rules for the conduct of monetary policy should create a stable monetary system … [and] rules for its fiscal counterpart should promote ‘stability of tax and expenditure’ without regard to changes in the economy.”

      This stability, of course, has not been achieved, evidenced by boom and bust cycles and the GFC. It might be argued such policies have promoted the exact opposite to stability.

      “… New Zealand’s ideologues sought to cloak that strategy in an aura of Constitutionalism … [Kerr’s vague “interests of citizens at large”]. In other words, future governments might want to change what Labour and National governments put in place from 1984 – 1994 to serve different interests. Institutional design had to make that [change] as hard as possible to do.

      The Reserve Bank Act was straightforward …. expressed in quantitative terms and delegated to an independent agency. Tying the hands of future legislators for fiscal policy was more difficult, because there was no single agreed-upon and easily measurable objective … passed in 1994 [the Act] set out five principles of ‘fiscal responsibility’ … expressed through vague concepts and some novel indicators.

      There was no equivalent responsibility, or even legal space, to consider social or democratic principles. He [Cullen] proposed additional principles of sustainable economic growth, a more fair and equitable society, and full employment … that binding future governments to a specific fiscal policy was “constitutional nonsense” … especially as “a form of legislative contraception for the [imminent] MMP parliamentary system”

      – Chapter 7, Pillars of Orthodoxy, ‘The FIRE Economy’, Jane Kelsey

      Kelsey describes the ACT Party as the Business Roundtable’s ‘alter ego’, the latter’s position on fiscal responsibility, based on a review by Bryce Wilkinson [2004], being championed by ACT …

      Reply
      • Alan Wilkinson

         /  2nd October 2016

        Being criticised by Kelsey is a badge of honour and shows you are definitely doing something right. The NZ economy has not been boom/bust in any sense due to the Fiscal Responsibility Act or the Reserve Bank Act. It has been exceptionally stable despite huge external shocks from export prices, banking crises and the Chch earthquake. The purpose of the FRA and the RBA was not to block electoral democracy but to prevent electoral manipulation and deception as occurred with the concealment of the BNZ debts and the artificial stimulation of the economy in election years. The woman is as clueless as she is vocal.

        Reply
        • @ Alan – “external shocks” wouldn’t have anything to do with ‘globalisation’ would they? The RBA & FRA were among a raft of laws enacted to facilitate the neoliberal consensus, partially (and importantly) hinged upon globalisation. In other words, the doors were wide open when a storm raged “externally” and, of course, blew right through our place as well. The GFC was compensated by massive government borrowing which, strangely enough, contravenes [or “departs temporarily” from] the first article of ‘Fiscal Responsibility’ in the Act!

          They’re hardly likely to “depart temporarily” from the Act by raising taxes are they?

          Domestically – “home home on the range, where the possums, weasels, stoats, ferrets and feral cats play” – even with the FRA and RBA in place, we were somehow obliged to bail out South Canterbury Finance to the tune of 1.6 billion dollars. I think Blazer might call this “the socialisation of loss”?

          I don’t want a “Socialist” Constitution any more than I want an extreme Capitalist one, but a new era is coming and the “social” is going to play a bigger role in it. I don’t want a Constitution that will prevent that, just like I don’t want a Constitution which provides – in terms of everyone or “all” – for the electoral majority or a particular interest group while denying the voice of minorities and particularly the minority Treaty partner, tangata whenua.

          More from Kelsey then –

          “To enact “New Zealand’s bold experiment in monetary and fiscal policy and in public finance … in the late 1980s and early 1990s”, three laws were passed, each quite distinctive, but with complimentary objectives and institutional arrangements. Together, they became the pillars of neoliberal transformation and financialisation of the economy.

          The Reserve Bank Act 1989 was especially audacious. NZ was the first country to make its central bank politically independent, with eliminating inflation (and hence maintaining the value of capital) its primary responsibility.

          The Fiscal Responsibility Act 1994 laid down principles of fiscal rectitude … a plethora of reporting mechanisms sought to keep them [governments] in line.

          The even-more novel Public Finance Act 1989 allocated funding through short-term purchasing contracts, making the public service into a pseudo-marketplace that could be subtly privatised, and applied private-sector accounting practices to the public domain.

          These three pillars were augmented by the complete contracturalisation of public-sector employment through the State Sector Act. Oversight was vested in the powerful and most ideologically grounded control agencies: the Reserve Bank and Treasury, sometimes joined by the State Services Commission (SSC).”

          I’m supposed to have no worries about the “economic principles” of a Business Round Table inspired Regulatory Responsibility Act and what, by extension, their ilk might write into a new Constitution for Aotearoa New Zealand?

          I don’t think so …

          Reply
          • Alan Wilkinson

             /  2nd October 2016

            New Zealand’s export economy has been exposed to external shocks ever since refrigeration and long before Kelsey invented her globalisation scare stories. Of course globalisation made NZ wealthy for well over a century. Likewise Treasury and SSC have been the control depts of State for ever. The Public Finance Act imposed accountability and transparency on Govt agencies.

            Reply
            • “Of course globalisation made NZ wealthy for well over a century.”

              Oh sh%t, so our wealth wasn’t all dependent on post-1984 ‘deregulation’ after all?

              ‘Globalisation’ made NZ wealthy all through those horrific, terrible, almost unbearable “socialist” decades which gave you and I our free health and dental care, our tertiary education, our freehold homes …

              We could have been wealthy without getting Rogered ….?

            • Alan Wilkinson

               /  2nd October 2016

              We were wealthy until we got socialised and the Brits got EUthanised.

  10. Alan Wilkinson

     /  2nd October 2016

    I don’t see the Tuhoe 8 got a bad rap from the law, Possum. The police got it wrong, not the courts.

    Reply
  11. Yes, Alan. The system worked by the Judiciary having the final say. The Police methods were ruled to be ultra vires and the case foundered. However, it would be naive to accept that the training was for “bush skills”. If it walks on two legs, has feathers, waddles and quacks. A good defence was pursued and I accept it was just. But don’t for one second believe that I was fooled. Our security demands eternal vigilance.

    Reply
  12. Pickled Possum

     /  2nd October 2016

    Al the way I see it, is when the 8 had their date with the court. It was discovered that the police had broken a law and a technicality would see the 8 get a wet bus ticket, slap on the wrist, type of scenario. So National went to the big house and tried to get a law through that would give them wider all gathering ‘Rights to Spy’ on people of interest. The Law objected to some parts, so when the law got past (in quick time) the Law asked for the stipulation that the law didn’t encompass the 8.
    What I was referencing to Al, was how elected MPs could make law changes, seemingly at their whim, has not been good for Maori.
    The police got it wrong because they don’t know how to interpret Government double talk law, some seem to have the OK Coral thing going on as well.

    Reply
    • Alan Wilkinson

       /  2nd October 2016

      The police certainly got it wrong in many respects so the question is why – insufficient information, incompetence, poor leadership, poor law? Certainly the activists involved were a bunch of hard-line fanatics and delusionists and some intervention was justified.

      Equally certainly, a lot of the law involved was untested and unworkable which did not help. Something that puzzled me from the start was why the police did not use their local cops who would surely have known a heck of a lot better how to treat the locals involved or affected. I can only guess it was because the raid was at least as much to gather missing evidence as it was to arrest the group. In that sense it was high risk and failed.

      There has since been major reforms to surveillance laws and practices which seem to be timely given the risks from Muslim extremists.

      Reply
      • @ Alan – ” … why the police did not use their local cops who would surely have known a heck of a lot better how to treat the locals involved or affected. I can only guess …”

        “gather missing evidence” … “arrest the group” …. Okay, these are possibilities …

        How about –
        1) To intimidate the ‘activist’ population generally and Maori activists in particular …?
        2) To bring about “major reforms to surveillance laws and practices” … ?

        Reply
        • Alan Wilkinson

           /  2nd October 2016

          I don’t believe either of those are likely.

          Reply
        • Conspiratoor

           /  2nd October 2016

          Parti, or could it have been the tattooed warrior and his useful idiots had been surveiled running around the bush with guns. In these situations the aos are the default option. Understandably so in my view

          Reply
  13. 1) I think Bryce Wilkinson is likely to be a highly partisan commentator, given his links with the Business Roundtable, NZ Initiative and ACT. What he may see as “aims to saddle future generations with the entitlement follies of the past half century” (presumably 1936 – 1986?) might appear to someone else as future generations getting saddled with the monetary and fiscal policy follies of the last thirty years (1986 – 2016)? A Constitution needs to be balanced and provide a legislative framework with space and flexibility for both and indeed [almost] all viewpoints, otherwise it is not upholding ‘freedom’ and ‘equality’

    2) “The strongest case against a written constitution for New Zealand is that we would make a mess of it. We presume too much if we think our generation knows best”

    I find this rather a bizarre thing for the leading proponent of a Regulatory Responsibility Act to assert …?

    A Constitition is, after all, a kind of Governmental Responsibility Act. Alan seemed to be offering a similar maxim yesterday, a kind of political hypocratic [I’m so tempted] oath like “First do nothing to prevent possible further harm”. I find this patently absurd. Doing nothing means leaving things the way they are – which might be very harmful – or, as Bryce himself puts it, “Yet the status quo is unsatisfactory.”

    How many times does Palmer or any other proponent of a new written Constitution have to say that it will be open to amendment?

    What made the drafters and signatories of the U.S. Constitution believe their generation was best? We do things when we must, when, as we say, their time has come, and deal with the consequences …

    And what of Te Tiriti o Waitangi, hapu iwi representation and minority voices …?

    Reply
    • Roger Douglas, cohorts and company, including ‘advisors’ like Bryce Wilkinson [as far as I know], had the audacity to believe their generation was best when it came to the so-called economic ‘reform’ we now call Rogernomics … Clayton’s reform: the re-regulation you impose when your purporting to effect deregulation …

      Reply
      • Alan Wilkinson

         /  2nd October 2016

        Rogernomics did not indulge in entrenchment, nor removing the supremacy of Parliament.

        Reply
        • Technically I suppose they didn’t, except insomuch as embedding mechanisms of ‘future-proof’ policy influence and control like the RBA and FRA are what might be called ‘implants’ or [negative] ‘dissuasions’ and constitute Cullen’s ‘contraception’ or ‘restraints’ or ‘coercions’ on Parliament rather than removal of supremacy …

          These Act’s ordinary statute status – meaning they can be repealed by simple majority just as they were passed – “poses (for neoliberals anyway) what former Treasury Secretary Murray Horn called the “committment problem” and what rational expectation theorists call the “cost of democracy” – Jane Kelsey ‘The FIRE Economy’ pg 179

          Reply
    • Alan Wilkinson

       /  2nd October 2016

      Bryce’s article answers many of those points. An entrenched constitution empowering the judiciary over Parliament is quite a different beast to responsibilities declarative Act that invokes only the power of public opinion as a sanction.

      An entrenched constitution is open to amendment only if sufficient votes can be mustered. The flag debacle shows that the opportunity for minor parties to posture and obstruct for political exposure is simply irresistible.

      The role of a constitution is to protect the individual and minorities from the majority. The likes of Palmer and the ToW industry have neither interest nor tolerance for that. Palmer’s career has been built around making the individual conform to the State and the ToW industry merely want a separate and privileged State within a State for themselves.

      Reply
      • @ Alan – “The flag debacle shows that the opportunity for minor parties to posture and obstruct for political exposure is simply irresistible.”

        Possibly …

        What the flag debacle showed me was that the opportunity for a popular major party to beguile, manipulate and betray both democratic processes and cultural identity boundaries for nebulous political ends is simply irresistible.

        Perhaps this speaks to the Constitution making process NOT being in the hands of government?

        Reply
      • Well said Alan

        Reply
      • What does “making the individual conform to the State” really mean Alan? I don’t find it difficult to conform to the law, except in one instance (I can think of) where I believe the law is patently wrong. This relates to a “victimless crime”.

        What you folks really mean is taxation, isn’t it?
        And that’s about all.
        No taxation without consent, right?
        [And would that truly mean “no taxation”?]

        What about rule of law, protection, infrastructure, services and opportunity without taxation? You’re happy to receive the benefits of tax but not to pay it. That’s how I see you.

        If you really believe there’s a significant enough number of people who “want a separate and privileged State within a State for themselves” to make any real impact I reckon you’re a fool … honestly … It confirms my feeling that people like you (and dave1924 just above) are basically ‘running scared’, in denial and wilfully refuse to acknowledge – much less address – the real challenges involved in securing a humane and decent future for Aotearoa New Zealand.

        “The role of a constitution is to protect the individual and minorities from the majority”

        Well … unless the ‘flag debacle’ is any indication, where it was minorities that threatened the majority … according to you … Muslims too … Muslim “extremists” discovered by the otherwise evil tax funded State surveiling every Muslim … but not other immigrants … ?

        So, any suggestions on how to protect Maori as a 15% minority of the Aotearoa New Zealand population and as tangata whenua? Do you even acknowledge they are tangata whenua?

        You might be a ‘denier’ like Barry Brailsford and company? Now that’s a company I don’t wanna be a shareholder in ….. The Raving Lunatics Company …

        Reply
        • Parti – you truly are blinkered:
          “I reckon you’re a fool … honestly … It confirms my feeling that people like you (and dave1924 just above) are basically ‘running scared’, in denial and wilfully refuse to acknowledge – much less address – the real challenges involved in securing a humane and decent future for Aotearoa New Zealand.”

          What a joke. I have laid out my position multiple times. I’m not running scared of anything, much less “real challenges”.

          The challenges in NZ right now revolve firmly around 2 things:
          > a large minority of people of all races who just have their hand out and say gimme, gimme. And they are pandered to by mindless agitprop form Mr Little, Ms Turei et al with their rich prick rhetoric.
          > and repetitive government failure to set a consistent framework for a higher wage economy with their endless interventions pandering to short term-ish and whining constituency

          For those genuinely disadvantaged by misadventure, unfortunate accidents or problems brought about in the womb – I have deep compassion and absolutely happy to help and set a framework to nurture them and grow them to their potential. Setting a public platform of education and health services to create opportunity is something I have advocated for as well.

          But for the whiners, the “its not fair” mob, the “I want but don’t want to plan and work for it” crowd and for the “I’m to sick too work, the state owes me a living but I can rant on the Internet all day” rabble I have zero compassion at all,

          Keep going Parti… the rants are wonderful if a little DLDR-ish in their ramblings..

          Reply
  14. Alan Wilkinson

     /  2nd October 2016

    What does “making the individual conform to the State” really mean
    One “word” example: RMA.

    “want a separate and privileged State within a State for themselves”
    Tuku already has his kingdom.

    Maori are already protected at least as much as anyone else. I acknowledge their culture and ancestors were tangata whenua. They are now no more tangata whenua than I am.

    I suspect you would qualify for the Raving Lunatics Company without difficulty.

    Reply
    • I’m clearly not the founding president of the RLC though Alan …

      RMA – “The Act occupied 382 pages of the statute book when it was passed in 1991. The April 2014 reprint had 827 pages. The September 2015 reprint has 682 pages. So at present the Act is exactly 300 pages longer than it was when it began.

      New Zealand exhibits a habit of passing big statutes, finding we do not like the results and then engaging in a constant series of amendments whereby the statutes lose both their principles and their coherence.

      There are many reasons for this tendency-a unicameral legislature, a three-year parliamentary term, a desire not to open up too many issues in the Parliament among others. What results is legislation of lower quality than is optimal. The New Zealand habit of continual legislative meddling needs to be broken.”

      – by ONE of the authors, Geoffrey Palmer – http://www.scoop.co.nz/stories/HL1511/S00029/ruminations-on-the-problems-with-the-resource-management-act.htm

      “Tuku already has his kingdom” – In fact “the Kīngitanga (Māori King movement) was founded in 1858 with the aim of uniting Māori under a single sovereign. Waikato is the seat of the Kīngitanga, and the early years of King Tāwhiao’s reign were dominated by the Waikato war of the 1860s.”

      How about “indigenous people” then? Are Maori the indigenous people of Aotearoa NZ?

      Reply
  15. @ dave1924 – “a large minority of people of all races who just have their hand out and say gimme, gimme.”

    I assume you’re talking about beneficiaries? I doubt you would deride superannuitants and probably not WFF recipients either?

    At the end of June 2016:

    – 280,177 working-age people were receiving a main benefit
    – 9.9 percent of the working-age population of New Zealand were receiving a main benefit
    – over half (57.4 percent) of main benefit recipients were female, and 42.6 percent were male
    – 42.1 percent of main benefit recipients were receiving Jobseeker Support, 33.3 percent were receiving Supported Living Payment and 23.4 percent were receiving Sole Parent Support
    – around three-quarters (73.6 percent) of main benefit recipients had been receiving a benefit continuously for more than one year.

    This doesn’t look like a particularly “large minority” to me. Of the entire population (if my calculations are correct) they constitute about 6.22%

    https://www.msd.govt.nz/about-msd-and-our-work/publications-resources/statistics/benefit/latest-quarterly-results/all-main-benefits.html

    ” … their endless interventions … ” must relate to terrible things like minimum wage rates, health & safety regulations, corporate taxes, the tattered remains of employee protections and all the other interference which prevents the market being truly ‘FREE’ …!?

    “I’m too sick to work, the state owes me a living but I can rant on the Internet all day”

    There’s your problem right there dave, plain as day for everyone to see. If a person is “too sick to work” they necessarily must believe “the state owes me a living” and they must therefore be punished by not having, for example, the communication tools society now considers almost basic human rights, and they most certainly should not be getting any enjoyment from using them …? The very tools through which, especially in remote areas, they might find a way of earning their living …

    “rant on the Internet all day” as opposed to what …?

    You sure are “deep compassion” man all right eh?

    Or are you just talking about me personally?

    Reply

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s