Written and unwritten constitutions

Debate over whether New Zealand should establish a written constitution continues, with Hamilton lawyer Thomas Gibbons having a say in NZ Herald: Written constitution unwanted and unwarranted

Sir Geoffrey Palmer and a fellow lawyer, Andrew Butler, have proposed a single written constitution, arguing that almost every other nation has a single written constitution, and – more importantly for these purposes – that such a document would be more accessible and enhance the public’s understanding of constitutional matters.

On this ground, the proposal is disingenuous. Even nations with an established single document called a “constitution” have a broader edifice of constitutional law. US constitutional scholars have come to talk of their own “unwritten” constitution.

They talk of a “thin” and a “thick” constitution: the latter being the full document, the former the part the public understands, which includes the Bill of Rights, and sometimes the Declaration of Independence, which is not part of the US constitution at all.

The reality of a written constitution:

Over the past 50 years, the US Supreme Court has invoked the US constitution in ruling on the legitimacy of abortion, the death penalty, affirmative action, political campaign donations, and various other matters.

They are not expressly covered by the constitution’s text. Rather, general constitutional provisions describing such matters of freedom of speech and cruel and unusual punishment are applied to specific situations. Constitutional questions are not resolved in an ether.

A constitution is a guide rather than a definition of everything.

If Palmer and Butler’s main goal is accessibility, and public understanding of the constitution, they could as usefully advocate for more teaching of civics in schools (something Palmer has suggested elsewhere, in law review articles), they could disseminate media on constitutional issues (something Palmer has done elsewhere, via National Radio), or they could publish a new book.

They have just published a book on establishing a written constitution, which has prompted this debate.

What they don’t need to do is promote a New Zealand Constitution in the sense of a single written document of four, 40, or 400 pages.

The can do that if they like. Promoting discussion on important issues is useful.

It won’t make our constitutional law more accessible. It might even expand the unwritten constitution, through cases interpreting this new document.

Some of us quite like a system that means issues like abortion, the death penalty, affirmative action, political campaign donations, and yes, even gun rights, can be decided by an elected Parliament, not unelected judges.

Elected Members of parliament versus unelected judges is an important point, probably the most critical consideration.

There is a lot of contentious debate in the US about the appointment of Supreme Court judges who get to decide on issues of major importance to the country.

The irony is that in suggesting something that is unwanted and unwarranted, Palmer and Butler are drawing public attention to the benefits of our current constitutional arrangements.

They have drawn attention to the options, which is a good thing in an open democracy.

Our current constitutional arrangements aren’t ideal, especially for a supposedly independent nation still linked to the monarchy of another country. But despite it’s imperfections it works fairly well.

It will be difficult to get popular support for a change to a written constitution. We couldn’t even engage in a sensible and civil debate over a flag change.

The Treaty of Waitangi and a New Zealand constitution would have to be inextricably linked.

I think avoidance of that debate along with apathy will mean nothing much will change constitution-wise in the foreseeable future.


  1. @ PG – At the risk of sounding insulting, which is not my express intention, both yours and Gibbons’ are mostly weasel words IMHO … (please note “mostly”) …

    First – The American Constitution’s failings do not necessarily mean ours must fail in the same way. Ours will be different. The U.S. Constitution is a monocultural, White Supremacist Coloniser document based upon the concrete reality and acceptance of slavery – later abolished – and a complete disregard of Native American First Nation indigenous peoples. They got away it … We surely won’t … Thankfully, in 2016+ we simply cannot do this … I celebrate that fact …

    A great deal of the resistance to a codified Constitution for Aotearoa New Zealand IMO is not so much that its disingenuous … its that so many prominent pakeha are dis-indigenous …

    “The Treaty of Waitangi and a New Zealand constitution would have to be inextricably linked.” Yes they will have to be and there’s the rub! Te Tiriti o Waitangi (Aotearoa). Te Tiriti o Hapu/Iwi … and, as you say, ” … avoidance of that debate” …

    Second – I agree that “Elected Members of parliament versus unelected judges is an important point, probably the most critical consideration.” However, this somehow pre-supposes that Palmer & Butler’s Constitution is “signed, sealed and delivered”. In actual fact it’s a suggested starting point and they have invited submissions on it. Adaptations to their proposal might conceivably be very significant indeed? They might, for instance, involve a bicameral or tricameral system as suggested by Matike Mai Aotearoa?

    My fear is that we’ll pass a Constitution essentially describing the very flawed, adversarial, institutionally racist, pseudo-Christian colonial Westminster system we have now, with some changes like Republic, ‘new’ Head-of-State (hardly new) and a 4 year term …

    Third – “We couldn’t even engage in a sensible and civil debate over a flag change.” I disagree. I think we engaged very sensibly and mostly civilly and much came from it, despite the process being a Key Ruse … the Veritas and Gravitas of Vexillology being a very important KPI in nationhood, patriotic identification and sense of belonging …

    Fourth – “Our current constitutional arrangements aren’t ideal … But despite it’s imperfections it works fairly well.” Yeah, let’s settle for second or third or “off the podium” best like we nearly did with our flag, shall we?

    Or how about this … Let’s allow those with the courage and fortitude to tackle these difficult issues the space to do so … as Matike Mai has done … (Read it and feel the goodwill) … Let’s include genuinely equal hapu iwi [Maori] representation in a uniquely Aotearoa New Zealand government model … Let’s ‘inclusively’ become the nation we really are … ?

    • Corky

       /  1st November 2016

      The American Constitution is in my opinion the greatest document ever written by man. Sure you could leave the reference to god out. The only other fault is a mechanism lacking for the American people to take direct action against their government should the Constitution be deliberately circumvented as is the present case with Executive Orders.

      “The Treaty of Waitangi and a New Zealand constitution would have to be inextricably linked.”

      What you are saying is Maori will have special privileges under any New Zealand Constitution. That must be the outcome.

  2. Elected Members of parliament versus unelected judges is an important point, probably the most critical consideration.

    Rome’s separation of the legislative, executive, and judicial branches of government contrasts with the sovereign model of England, in which the ideal king is responsible for the security of the realm, public policy and the administration of justice. The failure of the acting kings to live up to the ideals of sovereignty led to the revolt and settlement of the Magna Carta. NZ’s civil government is based on the Roman model, not the English one.

  3. Alan Wilkinson

     /  1st November 2016

    The Waitangi Tribunal has a mandate to settle grievances but not to determine sovereignty. There will be no written constitution because there is no agreement on the role of the ToW beyond the settlement of historic grievances. Any attempt to create a constitution will expose and will founder on that truth.

    Given the flag fiasco there is no willingness in Government to embark on constitutional debate and no goodwill within Parliament to allow it to happen.

    • I understood the Waitangi Tribunal only had a mandate to “recommend” to government if a Treaty claim is justified? Also, the government has amended the legislation so as to not make WT consideration mandatory, in an effort to rush through full and final settlements.

      Under its mandate WT inquired into claims made in its Te Paparahi o te Raki (the great land of the North) district inquiry and concluded rangatira did not cede sovereignty. So within their purposely and race-expediently limited scope of practice they do have the mandate … [I stand to be corrected on this if someone has the credentials?]

      Why would this result in “no written constitution”? Answer = Not because there’s no agreement but because there is such vehement pakeha unwillingness to reach agreement. This would involve “compromise” by pakeha, as included in the highly contentious “principles of Te Tiriti”. They are, of course, contentious for this self-same reason … the possibility of having to compromise …

      Attempts to create a constitution will expose this truth – as above – plus a whole lot more besides – [the ‘truth & reconciliation’ component] – consequently making it a great deal more threatening to pakeha than perhaps it needs to be – with commensurate fear, challenge and “road blocks” thrown up. If it founders it will do so due to the straitforward lack of pakeha goodwill …

      By no means whatever does foundering determine it will therefore wreck or fail. Its been foundering and being refloated for some time now …

      The flag fiasco was the best possible preparation for our upcoming constitutional debate, because Parliament, government and the public now know what a “pre-loaded”, lowest-common-denominator, spurious, deeply flawed and questionable ‘consideration’ process looks like and will never allow it to happen again.

      Key blew it big time! When you know how bad a PM can act, you also know what a good one looks like … or what s/he will look like …

      Rest assured of this, Aotearoa New Zealand can’t and I believe won’t ‘legitimately’ celebrate our Bicentennial in 2040 without a satisfactory Constitution, incorporating Te Tiriti as its bicultural foundation and including multicultural principles … and a Republic founded on anything else, along with its flag, will be a farce as well as a fiasco …

      One good thing about the rapidly-becoming-a-fiasco form of ‘democracy’ we ascribe to is that Parliaments change … Thank goodness for that eh?

    • Jeeves

       /  1st November 2016

      A people’s referendum might change that?

      • Alan Wilkinson

         /  1st November 2016

        Really? The chances of getting one to support a ToW-based constitution seem remote.

    • You have to know what real sovereignty is to unwrap this one.

  4. Alan Wilkinson

     /  1st November 2016

    If a Constitution is to be entrenched by a 75% threshold for change in Parliament then it needs to be established with that level of support in the first place. Fat chance.

    • You’re arguing again for not having a single codified Constitution and thereby maintaining the “race-based and separatist” prevailing orthodoxy … Why? Because its too hard to change? Too hard for you to change maybe? Because you know pakeha will close ranks and shut hapu iwi and other ethnicities out? Hence its pointless trying, right? I mean …. Why?

      Oh well, never mind, okay, I’ll leave you to it …

      Incidently, how’s it going ethically justifying and morally defending all the non-race-based and non-separatist things that happened prior to ‘Looney Leftie’ ideology and political correctness? You know … Apartheid, the Holocaust, King Leopold II’s Congo 10 million genocide, the 100 million indigenous peoples’ deaths colonising the Americas …? Bastion Point, Rua Kenana and Parihaka?

      Good luck with that!

      • Alan Wilkinson

         /  1st November 2016

        Actually I wasn’t arguing for anything. I was concluding that for solid reasons nothing will change.

        However, I do disbelieve in race-based law and that the extensions the judiciary invented as Treaty Principles are harmful and indefensible. I believe the Maori seats should be abolished and that the country should be multi-cultural and all equal before the law.

        British Common Law devised and refined human rights somewhat earlier than the unhappy advent of the loony Left of modern times. That there have been areas of the world outside its domain and tyrants who exploited their power over others with vile oppression is an irrelevancy I don’t need to defend nor an evil the loony Left can take credit for ending.

        • Jeeves

           /  1st November 2016

          I think an awful lot of misunderstanding about what might be a ‘good fit’ constitution for NZ is somehow based on the assertion that British Common Law is the Gold standard framework for civilised existence. Its a bloody good one, or as someone said “the least crap system”- but its crazy to think that it can’t be either ‘changed’ for something equally good, or ‘improved’ for something better.

          But just because someone called what Webb-Ellis did at Rugby, “Rugby” – doesn’t mean they invented the game of Rugby. They just gave it a name, or maybe they codified it.
          In war, it is the victor who gets to write the history of what happened, and it would be very unlikely that their story is this: “Well- we were the evil bad-guys, and we vanquished the good guys- and now we are in charge, because we won”, and in Britains case- over several centuries of vanquishing several continents- they tended to tell the story along these lines- “We are the best at everything, and that is why we invented all the good things and that makes us the good guys and that’s why we win everything- and everyone should be grateful that we are in charge- we invented thinking, and became world champions at it…and other stuff, like fireworks and money, oh and language”

          And there is an inherent strain of thinking among Western Europeans (and I may be showing my bigotry here, but my country was on the receiving end of a particularly blinkered arrogance on the part of our neighbours) – that no-one else – especially no cheeky darkies, or fuzzie wuzzies, or ‘asians’- could possibly have anything material to add to the accepted gospel truth, that the old Brittania was the very best, and what we’ve got now is because of a particularly wise and benevolent form of legal and hyper-developed evolution based on the ‘Constitutional’ Monarchy, the ‘constitution’ of Common Law, the Parliamentary Conventions etc, not to mention of course the old favourite of putting Capital Letters at the start of things to make them sound like someone cleverer than you thought them through.
          And like the truly ironic American mantra of ‘Freedom, Guns & Jesus’ – believers in the absolute and inarguable supremacy of the British system are probably uniquely blind to the fact that British subjects over the centuries have been Right Royally Fucked Over by their own ruling classes while fed a bullshit diet of lies about the Great Empire, and how Absolutely Fantastic it is to Be British – What?.

          There IS room for a written constitution which speaks to the world view of all of the peoples these islands, which speaks to the land as being a taonga, to friendship and family as being important, to the rights of man, and to freedom and whatever it is we think is important to us as a people. And we can have an elected New Zealander as our head of state (an impossibility currently), which may not tickle your fancy- but it tickles mine.

          And then, when successive governments try to sneak emergency bullshit laws through for their rich corporate mates- they have to make sure they aren’t going against the spirit of our constitution or we can challenge it in court, and the judge will advise the President that the proposed Act is unconstitutional and the things will be vetoed. And the same applies if some gang of Loony Lefties try to turn the whole place into a vegan pacifist marxist paradise- if our constitution protects a man’s right to be greedy and capitalist and entrepreneurial…

          I think it time for white NZ to open their minds a little to the reality of what they perceive as their rightful place on top of the podium of wonderful creatures, and imagine for a moment a better world, where different worldviews and paradigms of thinking rest easily as an amalgam upon which an improved system of democracy can exist.

          • Alan Wilkinson

             /  1st November 2016

            What is the problem you are trying to solve? You appear to be advocating for a solution in search of a problem.

            • Widespread dissatisfaction with the system as it stands Alan, perhaps especially amongst hapu iwi Maori, but also among the many who are missing out on the promises of neoliberal consensus politics, even with its welfare austerity component.

              An acknowledgement that it is flawed and could be improved. There is around 30% eligible voter disengagement at central govt level, more like 60-70% at local govt level.

              The fairly obvious conclusion we have government [to a considerable extent] by the privileged, of the privileged, for the privileged …

            • Alan Wilkinson

               /  3rd November 2016

              And there is or has been an example somewhere, anywhere, of successful government less by the privileged, of the privileged, for the privileged?

            • Yes, in its historical context, New Zealand’s First Labour government …

        • Jeeves

           /  1st November 2016

          Sorry- that’s not a response direct to you AW

        • British Common Law devised and refined human rights concepts and words – to maintain a semblance of representation – then promptly set about not practicing them – favouring the privileged coloniser race-classes as always – frequently until people who in their time were labelled ‘loony’ came along, such as William Wilberforce [and predecessors] in the Abolition movement.

          If such people’s skin was brown or black, such as Rua Kenana, Te Whiti and Tohu, they stood little or no chance even under “enlightened” English law. These were particularly dangerous people, mere ‘natives’ modelling operational and largely successful alternative ‘communities’, the ultimate challenge to White Superiority.

          Ghandi somehow managed it in India, although it might be argued his British rulers saw ‘independence’ coming and exacted their revenge-in-advance via the partition of Bengal, leading directly and indirectly to the eventual partition of India and Pakistan, costing perhaps 2 million lives and engendering the largest mass migration in human history?

          If ‘community’ or ‘communal’ sensibilities is one fundamental component of Left-ism, then yes, these were Lefties and they can take credit for a lot of things …


          • Alan Wilkinson

             /  1st November 2016

            Without trying to tackle all of that, explain to me how Rua Kenana (just to take your first example) was failed by British Common Law?:

            • Oh FFS, you only have to read the link you yourself have cited …

              “Many pakeha believed the community was subversive and saw Rua as a disruptive influence. [Aiding and abetting Germany in WWI] … In 1916 police mounted an armed expedition [70 strong], arriving at Maungapohatu on 2 April to arrest Rua for sedition.

              He was found not guilty on this charge but imprisoned for resisting arrest. Rua was released in April 1918 and returned to Maungapohatu, the community was however in decline … ”

              As I understand it, the reason it was in decline is because the police stayed on and laid waste to it, along with all the gardens they could find in Tuhoe country.

              “The costs of defence at the various trials had ruined the community financially as it had to sell stock and land to meet the debt. The community was even ordered to pay the costs of the entire police operations and raid at Maungapohatu.

              Even though the supreme court had found Rua’s arrest illegal and a legal petition had been drafted to Parliament on 1 May 1917 on behalf of the Maungapohatu people calling for a full public inquiry into the events of 2 April 1916, and the behaviour of the police there and later intimidating witnesses, no compensation was ever offered to Maungapohatu.”

              British Common Law permitted all this …

            • Alan Wilkinson

               /  1st November 2016

              The law acquitted him of all the charges except the one of resisting arrest before the expedition was mounted to arrest him by force. That seems a fair judgement. You can claim the punishment was excessive but that seems due to the judge rather than the law as well as to his history of defiance and previous convictions.

              This all occurred during World War I which of course was a time of national stress and horrendous NZ casualties in Europe and Gallipoli. And Rua had many politically powerful Maori enemies.

              The police over-reacted and the judge was harsh but the law and jury seem to have been fair. You could also say that the offence he was convicted of led to the death of two men and the wounding of six as well as the taxpayer incurring the costs of the expedition and its aftermath.

            • Oh this is pointless, but I guess its useful to know the extent of irrational ‘Right Brigade’ pakeha fearful resistance to change …

              “his history of defiance” … Gee, I wonder where that came from? He joins a long, long list of defiant Maori though, doesn’t he? … I won’t innumerate them … suffice to say any rational pakeha person would say, “If I get a headache this often there may be something wrong with ME?”

              ” … a time of national stress and horrendous NZ casualties in Europe and Gallipoli.” Yes, having shortly before inflicted horrendous stress and casualties upon indigenous NZers to quell their “defiance”, then promptly and conveniently forgotten about it …. an amnesia we pakeha are just emerging from today … as we are annually reminded that Maori have never forgotten … [just as we will never forget our dead left behind at Gallipoli [Canakkale] and in Europe] … and actually want to commemorate our own his/herstory here at HOME!

              I abide by my earlier statement : Modelling any form of functioning alternative community containing even the tiniest element of ‘resistance’ – they might make their own grog, grow their own herbal remedies or plough their own land regardless of pakeha survey pegs – is the most dangerous thing any identifiable ‘group’ can do in Aotearoa New Zealand, especially Maori …

              Indeed, British Common Law, inseparable from the fundamentally monocultural coloniser form of government we currently “enjoy”, has made it next to impossible to do anything like this now …

              You’d be breaking some rule or regulation in a jiffy … and WHACK!!!

  5. Interesting … We all have barrows to push … there’s nothing inherently wrong with that … So what might Thomas Gibbons’ barrow be?

    Well, it seems his barrow might be what’s known in political and legal parlance as “fear of judicial activism” or fear of Juristocracy …

    Gibbons’ name appears frequently in footnotes (as far as I’ve read) in the 2015 Victoria University LLM research paper by Kerrin Eckersley entitled “Parliament vs The Judiciary : the curious case of Judicial Activism” (cited below) of which this is part of the abstract …

    “The conclusion reached is that New Zealand does not have an activist judiciary, especially not in the sense imagined by some parliamentary representatives. The Supreme Court decisions to date evidence a conservative and deferential judiciary.”

    One of many similar conclusions is that New Zealand “has consistently demonstrated, over the past fifty years of its law reform, a preference for administrative over judicial decision making. Judicial power is simply not part of New Zealand’s constitutional culture.”

    As to faith in representative Legislature, the paper notes “In the 2014 Election a 77.9% voter turnout was recorded. Of that turnout, 47% of voters voted for the National Party. Effectively therefore the National Party was voted into Government by 36.6% of eligible voters. Thus it is questionable as to whether the Parliament in which we have vested supreme law making powers is in fact representative of the New Zealand electorate (?)

    This low voter turnout is reflective of a generally disengaged public when it comes to matters of governance. This raises a further question of whether, if judicial activism does exist, it can be in any way effective without an engaged public. If a judgment is considered activist, in the sense of finding a statute or provision inconsistent with NZBORA [Bill of Rights Act] a way of having Parliament react to that state of affairs would logically be by pressure from the electorate.”


    As PG said at the beginning, Te Tiriti o Waitangi and the New Zealand constitution will have to be inextricably linked – I note a fairly universal acceptance of this idea goes hand-in-hand with refusal to practice it – “and avoidance of that debate along with apathy means nothing much will change …”

    And as Ani Mikaere said in 2004, “… there is an implicit acknowledgement from each of them [Brash, King et al, the ‘Right Brigade’] that the key to their desire to feel that they “belong” here somehow lies in the relationship between Päkehä and Mäori. There is also a sense that in order for that relationship to be put on a sound footing, something has to change.”

    • Alan Wilkinson

       /  1st November 2016

      I do belong here. That is on a sound footing. You cannot change it.

      • Jeeves

         /  1st November 2016

        But there is a strong sense that many new Zealanders feel threatened by Maori progress- in the same way that some married people feel threatened by gay marriage.

        • … and, dare I say it, in the same way some married men feel threatened by their spouse’s progress … and vice-versa too?

        • Alan Wilkinson

           /  1st November 2016

          Far from it. Most New Zealanders want nothing more than to see Maori progress and their bad statistics become a thing of the past. What they don’t want to see is a Maori aristocracy cementing legal privilege for itself in place and in a constitution.

          • @ Alan – “Most New Zealanders want nothing more than to see Maori progress and their bad statistics become a thing of the past.”

            Yeah, right, provided they do it entirely on pakeha terms … by “assimilating”, yes?

            Anything else is quickly labelled with untold negativity, propagated by irrelevant nasty, vicious name calling – “Maori genocide” [using pakeha muskets] and “daughter slaughter” – your Rightie friends Brash, Moon and Duff ascribe to this obscene profanity – this EVIL – summoning forth age-old racial discrimination, culturally embedded race-based politics and separatism … It’s the altar of their church …

            There are other names for it too …

            • Alan Wilkinson

               /  2nd November 2016

              By joining the vast majority of Maori who do not become criminals and welfare statistics.

              The rest of your rant bizarrely advocates separatism while raging against it. I sense your brain is going to explode sooner or later from internal combustion.

      • You consummately exhibit classic pakeha hyper-defensiveness Alan: Very nearly “I rest my case” material, honestly! A loony Leftie like me couldn’t ask for a better ally.

        Ani isn’t saying you don’t belong here. She’s saying your belonging here is entwined in a relationship between Maori and Pakeha. I believe this is an inescapable truth …

        The terms of that relationship, no matter how poorly worded and seemingly contentious, is written down and agreed to in her own language, te reo, on a document entitled Te Tiriti o Waitangi …

        She and thousands of other hapu iwi Maori are perfectly well aware of what it means to them and what it meant to their ancestors who signed it.

        So yes, you absolutely belong here, because of Te Tiriti, and you seem absolutely determined not to …

        • Alan Wilkinson

           /  1st November 2016

          Rubbish, PZ. I don’t desire to feel I belong here. I know I belong here. You misrepresent Mikaere and she misrepresents me.

          She and thousands of other hapu iwi Maori are perfectly well aware of what it means to them and what it meant to their ancestors who signed it.

          I doubt that. An over-confident projection if ever I read one.

    • Conspiratoor

       /  1st November 2016

      Parti, pull your head out of the sand, the landscape is changing. I’ve just spent the weekend driving around our biggest city (or trying to). Looking for real estate for the kids. In our market some properties are being marketed exclusively by chinese, for chinese. I would say your manua whenua status has 10 years to run, no more. But hey, milk it while it lasts. Cheers,c

      • That’s a very precise and well referenced summary of the situation C ” … some properties are being marketed exclusively by chinese, for chinese.” How many is “some” exactly?

        Back in 2006 when migrants from the U.K numbered 10,900+, eclipsing their nearest rival The Phillipines by 8,500-ish, I strongly suspect there were properties being marketed exclusively by [newly arrived] Poms, for Poms?

        That year Chinese ranked 5th with a meagre 1800+, although from 2001 – 2003 they topped the list, peaking at 14,700+ in 2002. I guess the same property marketing thing must have been happening way back then?

        Maybe its a ‘migration on a rotation basis by country’ thing? A ploy by successive governments to fudge the figures …?

        Check it out … this is fascinating … unless of course you only see what you want to see?


        • Conspiratoor

           /  1st November 2016


          Please try and keep up parti. What have you been smoking today?

          If you read my comment I do not believe you will find a reference to migration. However there is a new demographic flexing its muscle in the property market and it is not you or I. The chinese enjoy our property market because through proxies, they get to own it outright, unlike their communist paradise.

          The property myself and my 20th generation tamahine were looking at, is this one. The young chinese agents humoured us but they knew, as we knew, that this sale was pre-ordained


          I thought I would do a bit of racial profiling of the local barfoots office and blow me down with a feather what did I find. Of 24 agents, no less than 17 were of indian or asian extraction.

          What does this tell you parti? Please share your thoughts

          • Huh … Now there’s two things they never put the price or even an indicative price on in advertising here in GodZone New Real e-Zeal Land, First, wages and salaries, due to the fact they’ll always be the minimum possible … and Second, house prices in Auckland, due to the fact they’ll always be the hyper-inflated highest possible ask or, more likely, be going to auction …

            It tells me one or two things, or possibly both simultaneously –
            1) The policies of successive Labour and National governments since 1984 – the ‘neoliberals’ – have failed the Aotearoa New Zealand nation and people to a great extent if not more-or-less utterly. To make their “wealth” dependent on Finance, Insurance, Immigration and Real Estate … FIIRE … for most perhaps especially the latter … is little short of criminal …
            2) The policies of successive Labour and National governments since 1984 – the ‘neoliberals’ – have been dictated from overseas, largely by corporations rather than governments, in all but the finer and less important details …

            You don’t like it because the very government you support is doing it … I have rather more sensible reasons for not liking it …

            • Conspiratoor

               /  1st November 2016

              Which government do I support parti? I’m curious to know

            • You’d be a National-ACT supporter, surely?

            • Conspiratoor

               /  2nd November 2016

              Wrong party parti…on both counts. But hey if you must stereotype and it makes you happy then what the hell…

            • Jeeves

               /  3rd November 2016

              No one hates the free market more than free marketeers.
              Especially when it works in someone else’s favour- and super especially when the successful exponents look different.


  6. Why, I ask myself, would people harbour this fear of judicial activism? This ‘juristocraphobia’? [new word # 75]. I wonder what their demographic is too? I could easily hazard a guess …

    Could it be they fear that Parliament will lose its unchallenged right to pass laws on a simple 51% majority?

    Yes, we might have MMP at election time but once a government is formed, its First Past the Majority Post all the way to bad legislation …

    Could it be that political parties and elected parliamentary representatives are far more easily influenced and maybe even ‘bought’ than Supreme Court judges?

    Thinking out loud … that’s all …

    • Alan Wilkinson

       /  1st November 2016

      Why, I ask myself, would people harbour this fear of judicial activism?

      Why would you have to ask, I ask myself? The answer is quite obvious when the example of the invention of the Treaty Principles is used to insert racial discrimination into numerous laws and regulations and to manipulate property rights.

      • What an utterly ludicrous thing to say Alan. The only way we know things is by comparing them to other things. Protestations, affirmations and concords of goodwill between two peoples logically begs comparison with ethical principles and values in any search for meaning or understanding …

        The existence of such principles [or values] in laws and ‘rights’ no more constitutes “invention”, “racial discrimination” nor “manipulation” – and is considerably less danger to civilisation – than does Te Tiriti untranslated or uninterpreted … a pre-1975 Treaty …

        … When race-relations in New Zealand were all harmonious and good … When pakeha could basically do whatever they liked … Hmmmmmmm ….

        That’s what this is all about, isn’t it, for you and the Right Brigade? The year 1975. Te Ropu Matakite (Those with Foresight), the hikoi, and Whina Cooper … she who (IMHO) knew full well the Land March would be met at Parliament by a quietly triumphant Labour government announcing its ‘swan song’ legislation, the Treaty of Waitangi Act creating the Waitangi Tribunal …

        The year that began National’s big betrayal by Rob Muldoon, arguably NZ’s most socialist leader-in-denial-by-proxy [or something] – “Think Big” – the Right-Wing’s equivalent of 1984? In 1975 he pulled the pin on a hand-grenade that finally “went off” in 1981, when freedom of choice meant Ron Don & Co’s freedom to play rugby with Apartheid South Africa … Oh, life’s little ironies …

        Strangely, perhaps equally ironically, the year the Values Party, established 1972, fielded 87 candidates in the general election and received 5.19% of votes – the peak of its popularity – but won exactly zero seats under our archaic FPP system …

        So many people wanted this changed, wanted ‘democracy’ to be better … to improve … that the pressure eventually won us a referendum … Ironic indeed …

        Why oh why, in all that time, hasn’t the Treaty of Waitangi Act and all the legislation it spawned been repealed? You’d think Mr Anti-Commie “Reds under the bed” Rob Muldoon would have done it straight away upon ascending to office? Yet no-one has …

        Perhaps its ethically defensible and morally justifiable …

        ” … by what right does the Crown rule? And, if it doesn’t have such a right, then don’t we need to establish a new constitutional settlement that more justly sets out the basis for Crown-Maori relations?

        Rhodes Scholar Max Harris notes, “Some say ‘if it ain’t broke, don’t fix it’ but one question we don’t often ask is: from whose perspective are we judging whether the system is broke?”

        – Anahera Herbert-Graves – “A values-based constitution” – Northland Age – today …

        • Alan Wilkinson

           /  2nd November 2016

          I guess that all meant something to you, PZ, but it is all sound and fury signifying nothing to me.

          • Glad you read it anyhow Alan … Thanks …

            To paraphrase you –

            Treaty Principles are used to ameliorate racial discrimination culturally embedded in innumerable laws and regulations by the supreme manipulators of property rights, te pakeha, ngati Tiriti …

  7. “British Common Law devised and refined human rights”

    Wrong. The phrase “human rights” doesn’t appear once in Blackstone’s Commentaries.
    Blackstone writes of natural rights, not human rights.

    • “British Common Law permitted all this …”

      No, laying waste to Tuhoe land by the police would have been unlawful.
      Due process requires that the facts are found before judgment and punishment or acquittal.

      • Ugly, I’m not too concerned about the exact semantics or pedantics of it. I reckon “would have been” doesn’t come into it … It WAS unlawful. It never got officially investigated. No judgement was passed on the laying waste.

        British Law and/or its form of government, Westminster, caused and allowed it to happen … as it has ‘allowed’ countless travesties against indigenous peoples throughout the world, including indigenous peoples of its own Isles … generally, if not brown skinned, they’ll be the working poor …

        • No argument from me, I’d just like to make the point that common law developed within the context of a sovereign nation, but NZ was a dominion, not a sovereign nation (Tuhoe and other non-signatories of course excepted).

          I think it’s important to distinguish between the “full spectrum dominance” approach of empire and the common law as a system of ethics. The racism and genocide of the British Empire didn’t originate from the common law of England.

          • Yes but isn’t it a kind of meaningless differentiation? Hand-in-hand they decimated indigenous populations, took over their land – imposing English ‘property rights’ and ‘private ownership’ – exploited colonial resources and largely disregarded any survivors or the remnants of colonised cultures …

            Ethics are ultimately meaningless unless we apply them …

            A codified Constitution adds judicial as weight to their application as well as Legislative responsibility … That’s what ultimately scares so many privileged people I reckon …

    • Conspiratoor

       /  1st November 2016

      uggers, you are being unnecessarily pedantic. In fact your reference blackstone wrote extensively on personal rights. Although I concede he may not have used the phrase ‘human rights’. Please be aware the word ‘human’ was not in common usage during blackstone’s era

      I draw your attention to William Blackstone, Commentaries 1:119–23, 157, 237–38, 243–44 wherein he made no less than 22 references to the rights of the natural person.

      Now the rights of persons that are commanded to be observed by the municipal law are of two sorts; first, such as are due from every citizen, which are usually called civil duties; and, secondly, such as belong to him, which is the more popular acceptation of rights or jura

    • Alan Wilkinson

       /  1st November 2016

      Human rights in the United Kingdom are set out in common law, with its strongest roots being in the Bill of Rights 1689

  8. “Please be aware the word ‘human’ was not in common usage during blackstone’s era”

    Wrong, it occurs in Blackstone’s writings dozens of times. Human rights have never been part of the common law.

    Natural rights are not the same as rights of persons.

    • Conspiratoor

       /  1st November 2016

      He was big on natural law I grant you. However if you read the first undoctored edition you will see he departed from natural rights to expound on personal rights on a number of occasions…

      Rights are however liable to another fubdivifion ; being either, firft, thofe which concern, and are annexed to the perfons .of men, and are then called jura perfonarum or the rights of perions; or they are, fecondly, fuch as a man may acquire over external objects, or things unconnected with his perfon, which are ftiled jura return or the rights of things.

      • What do you mean by “doctored”? My text reads:

        Rights are however liable to another subdivision; being either, first, those which concern, and are annexed to the persons of men, and are then called jura personarum or the rights of persons; or they are, secondly, such as a man may acquire over external objects, or things unconnected with his person, which are styled jura rerum or the rights of things.

        To understand the difference between natural rights and personal rights you’ve got to first understand the legal characteristics of persons:

        person: A man considered according to the rank he holds in society, with all the rights to which the place he holds entitles him, and the duties which it imposes. 1 Bouv. Inst. no. 137. A human being considered as capable of having rights and or being charged with duties, while a “thing” is the object over which rights may be exercised. (Black’s 2nd (1910))

        • @ Ugly – ” A man considered according to the rank he holds in society, with all the rights to which the place he holds entitles him …”

          That sounds a lot like what I understand the Maori concept of mana to mean … ?

          • Rank is all about social dominance, a trait which is governed by the reptilian brain of the triune brain model. I agree that this is much like the description of mana, the main difference being that mana is said to be supernatural in nature while rank is not.

            • Gezza

               /  2nd November 2016


            • Just thinking again about traits Maori & pakeha philosophy-of-life might share … and how pakeha philosophy might even learn and be re-envigorated from Maori …


            • Alan Wilkinson

               /  2nd November 2016

              It’s a long read for little reward in terms of conclusions. Considering that most prison inmates are functionally illiterate and accustomed to violence and brute strength as the means of settling disagreements and enforcing a pecking order I doubt whether esoteric and historical ethics investigations are very relevant to the problem or solution.

            • Oh right … of course … conclusions like “functionally illiterate and accustomed to violence and brute strength as a means of settling disagreements and enforcing a pecking order …”

              Conclusions like “Maori genocide” and “Daughter Slaughter” …

              Gibbons, like all the others, yourself included, are just more KFL footsoldiers in the Charge of the Right Brigade … into the valley of the shadow of diversity death …

              Its like the Flag Consideration dichotomy –
              1) Change the flag ‘exclusively’ to a corporate logo, instigate ‘organisational change’ and business-like ‘re-branding’ and NZ Dairy-Tourism-Forestry-&-IT EXPORT Inc will follow. It’ll naturally ‘filter down’ or “trickle down” … and take over … repressing anything else … ‘Roundup’ for society’s ills …
              2) Change the underlying culture to something far more ‘inclusive’, creative and ethically meaningful, Constitutionally, based on widest possible consultation and community input, and the benefits will filter up to emerge, amongst innumerable other things, as the best possible flag for the nation … Permaculture …

            • Alan Wilkinson

               /  2nd November 2016

              Jeez, PZ, discussion with you is getting more like plugging into a random word generator every day.

            • Gezza

               /  2nd November 2016

              Piripi’s thesis was a good read, PZ. I’ve found much ‘philosophy’ to be so full of minute analysis & academic wankery as to be just not worth bothering with trying to grasp. This was a very readable paper. The value for me was in the body of content, which the conclusion doesn’t entirely capture.

            • Alan Wilkinson

               /  2nd November 2016

              I agree with that, Gezza. The discussion was interesting and informed. I just didn’t think it amounted to much in the way of conclusions.

  9. One element at the very core of Constitutionalism in Aotearoa New Zealand is nicely captured by Chris Trotter in his introduction to ‘No Left Turn’, May 2007 –

    “While the successors of those [Pakeha] who came to these shores in search of power and wealth remain locked in bitter conflict with those who came in search of equality and justice, nothing of enduring worth can be constructed in this country.”

    This European “bitter conflict” impacted hard on hapu iwi indigenous culture, with Te Tiriti o Waitangi at the centre of a battle not so much about the best interests of aboriginal peoples, but between ‘privatised’ colonisation a la Edward Gibbon Wakefield and the NZ Company; and the Crown’s colonial annexation by ‘voluntary’ cession of sovereignty …

    Resistance to a new written Constitution might be seen as still operating along these very same ‘battle lines’ 180 years later? Kiwi Front Line is aptly self-named indeed …

    Contemporary ‘post-colonial’ Constitutionality and an ethically sound process of arriving at a truly representative Constitution could be an amazing healing force in the rift Chris Trotter so eloquently encapsulates …

    “The latter’s [missionaries’ and Whigs’] tender feelings for the native Maori tribes were, they believed [Lambton & Co], entirely misplaced” – Chris Trotter ‘No Left Turn’, “E.G. Wakefield’s Wicked Dream” pg 20

    • Alan Wilkinson

       /  3rd November 2016

      Fatuous myth-making by Trotter. The historic truth was much more complex, nuanced and messy than he likes to pretend.