Constitution promoted on earthquakes and Brexit

Geoffrey Palmer is pushing his case for a written constitution again, this time using earthquakes and Brexit as justification.

Stuff: New Zealand is one of three countries without a written constitution: time for change

A constitution could enshrine property rights, which were poorly protected in the red zone following the Christchurch earthquakes, writes Geoffrey Palmer.

OPINION: In our recently published book, A Constitution for Aotearoa New Zealand, Andrew Butler and I propose a written constitution for New Zealand.

New Zealand is one of only three countries without a written constitution.

That might be sort of correct. Most countries have single document constitutions. There are conflicting claims about exceptions. One Wikipedia page lists:

  • Codified (in a single document) most of the world constitutions
  • Uncodified (fully written in few documents) San Marino, Israel, Saudi Arabia
  • Uncodified (Partially unwritten) Canada, New Zealand, United Kingdom

To understand the principal rules of how public power is exercised in New Zealand you have to wade your way through a jumble of statutes – some from New Zealand, but quite a few very old ones from England; a plethora of obscure conventions, letters patent and manuals; and a raft of court decisions. How they all mesh together is obscure and unclear. 

We share this untidy approach to constitutional law with the UK. Anyone who thinks that that’s a situation worth preserving just needs to look at what’s happening over there at the moment.  Brexit has created a massive constitutional crisis. A significant factor is that the constitutional rules there are so unclear, no one knows who has the power to get the UK out of the EU.

In the UK it is more a crisis of confidence in government being dictated to by the European Union.

Ironically the European Union wrote a draft constitution that was signed by the 25 states that were members in 2004 and ratified by 18 of them, but French and Dutch voters rejected it in 2005.

This evolved into the Treaty of Lisbon that was ratified in 2009.

The Treaty of Lisbon (initially known as the Reform Treaty) is an international agreement which amends the two treaties which form the constitutional basis of the European Union (EU). The Treaty of Lisbon was signed by the EU member states on 13 December 2007, and entered into force on 1 December 2009.

– Wikipedia:

BBC: Q&A: The Lisbon Treaty

The Lisbon Treaty became law on 1 December 2009, eight years after European leaders launched a process to make the EU “more democratic, more transparent and more efficient”.

Like the proposed European constitution before it, the treaty is often described as an attempt to streamline EU institutions to make the enlarged bloc of 27 states function better. But its opponents see it as part of a federalist agenda that threatens national sovereignty.

I don’t think the EU was known for efficiency, and it’s lack of democracy for member states  and threats to sovereignty, perceived or real, were significant factors in the Brexit debate and vote.

Back to Palmer:

“How is any of this constitutional stuff relevant to my life?” is a question we are often asked. Cantabrians know the answer. It’s when the chips are down and there is a crisis in place, that the dangers of short-term politics can overpower longstanding rights and principles. Not because those rights and principles shouldn’t apply, but because the political imperative is to be seen to do something and do something radical and urgent. The rights of individuals can get lost.

In its recently released report “Staying in the Red Zones”, the Human Rights Commission calmly and coolly assessed the Government’s treatment of homeowners in the red zone. The report concluded: “The right to property is fragile in New Zealand. Property rights need to be better enshrined in the New Zealand Bill of Rights Act”.

But I haven’t seem much sign of Cantabrians, nor the rest of New Zealanders, clamouring for a written constitution.

The latest earthquakes north of Christchurch (Culverden, Kaikoura, Seddon and Wellington) and the lengthy sorting out of the problems created by them are more likely to distract from rather than drive people to setting up a constitution.

The earthquakes have broken a lot of things. These need fixing.

New Zealand’s lack of a single written constitution (the Treaty of Waitangi is sometimes referred to as a constitution but it is far from comprehensive) seems for most people to be in the ‘if it ain’t broke why fix it?’ category.

And there are fears that trying to debate and formulate a constitution will create seismic fractures in our society.

Constitutional Advisory Panel: A Written Constitution

The Panel recommends the Government:

  • notes that although there is no broad support for a supreme constitution, there is considerable support for entrenching elements of the constitution
  • notes the consensus that our constitution should be more easily accessible and understood, and notes that one way of accomplishing this might be to assemble our constitutional protections into a single statute
  • notes people need more information before considering whether there should be change, in particular information about the various kinds of constitution, written and otherwise, and their respective advantages and disadvantages
  • supports the continued conversation by providing such information, and notes that it may be desirable to set up a process whereby an independent group is charged with compiling such information and advancing public understanding

Palmer’s project: 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 United States of America, with a famous constitution, is struggling with all of those things right now in the aftermath of a very divisive democratic election, during the transition to power of president-elect Donald Trump.

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  1. Alan Wilkinson

     /  19th November 2016

    The notion that property owners could expect a Palmer constitution to defend property rights is absurd.

    • Gezza

       /  19th November 2016

      What property rights do you have under our current constitutional and legal arrangements that their draft constitution takes away from you, Alan?

      • Ahhh, property in the soil …

        “To speak here of property as one does an article of use is to renounce thought. A temporary beneficiary of a mysterious dispensation, such is man in relation to the soil …

        The present day land system is in conflict with this view [Natural Ethics] … It permits the individual to possess land to an unlimited extent, to deprive the community of spacious domains, large enough to settle thousands of families, and to use them for his own purposes. It allows the individual to buy up land in the expectation of future development, and to re-sell it years or decades later, at an enormous profit, which he has done nothing whatever to earn.

        It permits of buying houses that one does not live in oneself and profiting by their yield. It permits of building houses for the purpose of gain … and selling them at a profit, like goods … It allows the masses to be herded in confined and often unhealthy quarters … while some distance away lie grass lands and green fields inaccessible to them. Finally, it permits of land being inherited like an article of furniture, in this way still further increasing the inequality of the distribution of land.

        A land system such as this cannot stand in face of the demands of ethics … The same applies to the mineral wealth of the soil …”

        – Frank E Warner, “Future of Man” 1944

        • Alan Wilkinson

           /  20th November 2016

          … it permits the construction of hundreds of millions of homes, the enjoyment of them by their owners and occupiers, the efficient production of sufficient food to feed the population, the retention of skills from one generation to another, the preservation and enhancement of land quality and value, innovation and investment in new ideas and methods and ways to use it – all of which failed to survive alternative land systems so far tried.

      • Alan Wilkinson

         /  20th November 2016

        The ability of the likes of PZ to delete any property rights for which they can muster a majority referendum vote against.

        • Gezza

           /  20th November 2016

          What specific type of property right were you thinking of?

          Can’t that be done now under our current legal and constitutional arrangements anyway with a piece of legislation passed by a simple majority in Parliament. It’s happened with lots of state-owned assets even though there was a majority referendum opposing it.

  2. David

     /  19th November 2016

    Palmers problem is he lives in a world seen through the prism of the law being made by lawyers arguing and judges in effect legislating through a narrow prescription of a document that would be out of date the day it was introduced.
    Its quite handy to be able to turf out the idiots who make stupid laws well try doing that to a supreme court judge.

  3. David

     /  19th November 2016

    If Palmer were able to hold up say settlements for red zoners through the courts it would have been an appalling delay for the overwhelming majority who wanted to move the hell out and quickly and could thanks to a generous government offer.

  4. Palmer is selling this constitution as eye fillet yet it smells strongly of dead rat.

  5. IMHO the recommendations of Key’s appointed ‘Constitutional Advisory Panel’ heavily reflects two things, despite the relative quality of the panel members: 1) This is just too hard, and 2) We’ll contradict ourselves anyway … or perhaps purposely …?

    Look at the first two clauses of their summary above –

    – ” … no broad support for a supreme constitution …” and
    – ” … our constitution should be more easily accessible and understood, and notes that one way of accomplishing this might be to assemble our constitutional protections into a single statute”

    Hello people!!! Assembling all the protections into a single statute is effectively the same as a written Constitution!

    Palmer & Butler’s proposed constitution is exactly that at present, a proposal, a draft document for widespread comment and consultation … Where’s Klik Bate? “Time to get behind something and accentuate the positive” …???

    • PDB

       /  19th November 2016

      In the famous words of José Mourinho Palmer can be summed up as “a specialist in failure” – so why would anybody ‘get behind’ anything he is proposing?

    • artcroft

       /  19th November 2016

      I dislike the idea because the problem to be solved is remote, vague and had to articulate. And the solution? More lawyers. No thanks.

      • PDB

         /  19th November 2016

        I dislike it because it is a classic case of a solution looking for a problem.

      • @ PDB & artcroft – Then tell him what you think! If this Constitution might describe a bicameral or tricameral Marae Ture/Legislative Forum, it could also describe simple, specific and easy to articulate principles, regulations, and processes, the frequent use of referenda … WHatever you want … !? What do you want …?

        I don’t suppose it matters if you don’t tell him …. Kiwi FrontLine will do it for you, no doubt, with countless ‘clone submissions’ … Another Charge of the Right Brigade …

        Just too hard eh? You guys stay safe now …

        • PDB

           /  19th November 2016

          And the problem Palmer is solving with this is? Exactly………no doubt another chance for him to line lawyers pockets. Best you be off as I’m sure union control, protectionism, taxing ‘rich p***ks’ more, and the moral decline of New Zealand are far more important issues for you to tackle.

          • Palmer – a standout as far as unsuccessful and unpopular NZ politicians – is looking for profile, relevance and some sort of legacy. HIs arguments on all fronts are specious. In particular, and at this moment I’m chortling over his claims of the UK facing a “massive constitutional crisis (over Brexit). He’s a true Progressive (Regressive) – that is an autocratic, urban elitist. If he thinks the current situation faced by Britain triggering Article 50 constitutes (cough) a crisis then he should look to countries WITH constitutions and the crisis’ they constantly face – applying law within archaic and often anachronistic constitutions.

            I’d rather face the Canadian, NZ or British legal system – unwritten constitutions and all, than be defending anything within an American or say, Saudi, Indonesian or Turkish constitution-based one.

          • @ PDB – Just a few of the issues which need to be codified in a written Constitution are –

            1) The place of Te Tiriti o Waitangi & Biculturalism in our Constitutionality
            2) A model of representation reflecting the above and multiculturalism
            3) Law making and especially its transparency and decency … Its Constitutional adherence …
            4) The parameters and function of government, e.g. for the benefit or good of the whole population … “common good” … etc …

            – and many more, although the Constitution may not necessarily ‘solve’ them all. In an imperfect world it will always remain a living document, providing a touchstone to evaluate and test things against …

            PS – don’t talk to me about ‘living in the past’ when you [and others] obviously harbour such deep and savage resentment towards Palmer for the Treaty of Waitangi Act amendments, State-Owned Enterprises Act and ‘principles’ dating from the 70s and 80s, before which race relations in this country were just hunky-dory I suppose …?

            • PDB

               /  19th November 2016

              PZ: “don’t talk to me about ‘living in the past’ when you [and others] obviously harbour such deep and savage resentment towards Palmer”

              Palmer is ‘fair game’ & as he is still peddling the same sort of nonsense in 2016 that he made such a mess of in the 1980’s.

            • Roger Douglas …. SAME …

    • John Key loves appointed panels, doesn’t he? I wonder if CAP delivered him the results he sought, like the Flag Consideration Panel?

      I propose new wording for what used to be called “the Kiwi way” and “Our number 8 wire mentality” …. Let’s call it “Just too hard” … or perhaps “Stay Safe” …?

      What’s needed is to activate the younger generation. If young people like Aaradhna are politically switched-on enough to sing that excellent song “Brown Girl” and give up a NZ Music Award on principle, they are already thinking along ‘constitutional’ lines …

      I imagine a song akin to Midnight Oil’s “Beds Are Burning” …

      “It belongs to us … Let us WRITE IT DOWN …!!!”

      One thing is certain IMHO, the Aotearoa New Zealand Constitution must enshrine bicultural ‘partnership’, along with multiculturalism … Thankfully, I also believe it is too late NOT TO DO THiS … thanks to Te Tiriti o Waitangi Act, Settlements and ‘principles’ …

      “Kua tawhiti kē to haerenga mai, kia kore e haere tonu. He nui rawa o mahi, kia kore e mahi tonu: You have come too far not to go further, you have done too much not to do more.” – Ta Himi Henare (Sir James Henare)

  6. PDB

     /  19th November 2016

    PZ: “It belongs to us … Let us WRITE IT DOWN …!!!”

    The English already tried that, their words were later misinterpreted by the very same Geoffrey Palmer whose 1985 amendment to the Treaty of Waitangi Act allowed claims all the way back to 1840 (no matter how frivolous) resulting in claims going from just 9 in 1882 to well over 2000 by 2010.

    Palmer was warned that his relatively undefined changes in 1985 would lead to an avalanche of claims for all sorts of things and would only make lawyers very rich – luckily though Palmer WAS a lawyer.

    • Gezza

       /  19th November 2016

      I assume you mean just 9 in 1982, not 1882. While what seems to be a very small number of claims look frivolous, not allowing claims to be made back to when land confiscations and unjust seizures or purchases happened was unfair.

      • PDB

         /  19th November 2016

        No doubt there are justifiable treaty claims that should be upheld (and have) but one would be naive to think that Palmer’s changes in 1985 didn’t lead to a whole lot of claims being lodged that have no basis in fact, are people ‘just having a go at getting free money’, or had already been compensated in previous treaty-breach payouts.

        This has lead to an industry which has made lawyers & only a very small portion of overall Maori rich where you are labelled ‘racist’ if you even slightly disagree with any of these payments (even if backed up by solid evidence) because that doesn’t fit the pro-Maori narrative. History has been rewritten in this country, you can see this with the Maori denial of cannibalism for instance as they try to strike that too from the history books.

        Palmer has a lot to answer for, and again the cynic in me thinks he is more for lining lawyers pockets then doing anything productive for the country.

        • @ PDB – “The English already tried that [writing it down]” …

          Correct PDB … They did it in Te Reo Maori … So logically, it has to be understood in that way … No cession of sovereignty … What did “sovereignty” even mean to a Maori person in 1840?

          @ PDB – “History has been rewritten in this country …”

          Why shouldn’t it be …?

          Our history was WRITTEN in the first place by pakeha, most of whom had a wildly slanted view of Maori, quite aside from the cultural gulf many could not even perceive, let alone cross. So if you believe many early missionary accounts you are buying into an extremely, heavily biased viewpoint … History that was literally written to justify their own existence … and no doubt their funding as well …

          Your contemporary ‘deniers’ of cannibalism – actually much more rational investigators – are mostly modern pakeha and Maori historians who are redressing the clear and apparent imbalances of the early records of missionaries [who wanted malign, heathen Maoris to ‘convert’], settlers [who wanted Maori land] and militarists [who wanted Maori defeat &/or extinction] …

          You haven’t mentioned the completely fatuous “Maori genocide” – using muskets supplied by pakeha – or mythical, fabricated “Daughter Slaughter” PDB? Keeping that powder dry there are you …?

          History is contentious …

          • PDB

             /  19th November 2016

            “The head of the Maori Studies Department at Auckland University, Professor Margaret Mutu confirmed Maori cannibalism was widespread.

            “It was definitely there”

            It’s recorded in all sorts of ways in our histories and traditions, a lot of place names refer to it.
            “It was part of our culture.”
            She said Maori cannibalism was not referred to
            by many historians because it was counter to English culture.

            You will get your English-based historians who come out of an English culture who don’t understand it and avoid it”.

          • PDB

             /  19th November 2016


            Obviously Capt Cook just made stuff up to fill in his journal……

            • @ PDB – I concede I didn’t make myself clear. I refered to ‘deniers’ in inverted comas, not to say all modern historians discount cannabalism, but to say contemporary historians have investigated and got it in a much more reasonable perspective … e.g. Paul Moon, that it was largely a result of battle rage …

              This is as opposed to the “walking protein” or “food on the hoof” claims of Right Brigade folks …

              But regardless of this, why would cannabalism (in itself) write-off an indigenous culture? Are we talking about acceptable and unacceptable degrees of barbarism? Because Europeans displayed barbarism aplenty in their colonisation of the world … Barbarism on a scale that puts Maori cannibalism to shame if you ask me …

              We draw the line at cannabalism, do we? And this justifies anything we did to hapu iwi Maori?

              I freely admit, it’s difficult being part of the ‘redress generation’ … but if we don’t do it, things will only be manifoldly more difficult for our children’s children’s children …

  7. PZ, once again you are talking nonsense by saying it is difficult being part of the “redress generation” because reparations and payments of compensation were made throughout the 20th century. The demands that present generations continue to be labelled as guilty parties as a result of actions by foreign troops and former colonists has no merit in equity. Even the bible says” let not the sins of the fathers be visited on the sons”. The real [problem is that for too long as we have been exposed to weak liberal socialist lefties weeping crocodile tears after reading the revisionist histories written by academics who have passed through an indoctrination system designed to create a huge guilt complex on non-Maori New Zealanders for things over which they had no control. I went to one of the compulsory courses for Public Servants at Takapuhu Awhia Marae mumble years ago that was run by two young wahine whose verbal berating of all of us was so bad that a part Maori man who was attending the course became genuinely distressed at his guilt for not acknowledging his Maori roots. As far as I was concerned, having grown up attending meetings at Te Kao, Rarawa, Whatuwhiwhi and Takahue Maraes, the principals’ attitudes were racist and hate filled, which was a pity because they both had apparently good intellectual capacity. The problem was, they were part of a revisionist wave of Maori scholars who demanded academic priority over Pakeha scholars. The effects of this deliberate policy to exclude access to historical material by non-Maori is one of the great anthropological crimes of the last century. We obviously have some way to go to provide a comprehensive and balanced view of our History. Our liberal left academics have to accept a huge responsibility for this negative rewriting of our history as a nation. Meantime, we must say enough ehoa, enough!


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