Legal Beagle by Graeme Edgeler

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It’s always useful to have something sitting around, if we suddenly find we need it it a hurry (it seems to have worked for the Rogernomes).

Geoffrey did get his Sir status back in the final twilight of that era, in the very same batch as Sir Roger.

Given some of the similarities NZ has with the UK, Sir Geoffrey and PA readers may want to look at this attempt to write a constitution for the UK from the Institute for Public Policy Research in the UK.

Why bother convincing NZers we need one first? Why not just decide to have a referendum on it, hold some poorly attended meetings round the country, then get NZers to send it their drafts for what they think should be in the constitution, and have a group of marketing experts (rather than lawyers) choose three versions of the one they think would be best, plus a terrible one to pretend there's some other choice, and hold a referendum on it? I mean yes, it would cost money that could be spent on something more useful, but never mind.

Sir Geoffrey isn’t expecting change soon. He suggests the adoption of a Constitution might not happen for 20 years, which, if we are to have one, seems like a reasonable time scale

Yes. It's an important enough thing that 20 years might well be how long it takes to forge a consensus on it, and it would not be a wasted 20 years. It's important to get it right.

Personally I'm rather undecided on the necessity. The concept of "super rights" seems to me to have considerable moral dangers, particularly since rights themselves can often be a shaky moral framework. Ultimately the problems occur when they compete with each other. I do accept that they're the most practical invention so far, at least as far as laws go, but I'm not sure that taking them to the level of enshrinement is that wise. We can put things in place that might be unshakeable for centuries. That's exerting a tremendous arrogance about our ability to predict the future.

In short, there are advantages and disadvantages to national constitutions, and these may each rise and fall depending on circumstances. I find the idea of needing supermajorities to change things particularly problematic, because that literally entrenches that a constitutional feature could remain very unpopular in near perpetuity, so long as it advantages 25% of the people. There are other ways to make changes slower and more considered than requiring supermajorities. For example, you can just...make them slower. Make changes to the constitution take a bloody long time and a whole lot of debate before they are put to the vote. But my feeling has always been that after all of that, it should be based on majoritarianism, not entrenched privilege.

I find the idea of needing supermajorities to change things particularly problematic, because that literally entrenches that a constitutional feature could remain very unpopular in near perpetuity, so long as it advantages 25% of the people.

The process in the Electoral Act (which Palmer proposes carrying over) is a 75% majority in Parliament, or a 50% majority at a referendum.

I guess a referendum is the safety valve there, then. And that would definitely need a good strong process of ensuring strong public debate.

a 75% majority in Parliament, or a 50% majority at a referendum.

That seems both risky and useful at the same time. Yay, what remains of my basic rights are safe as long as 50% of the population and 25% of parliament agrees that I should be allowed to keep them. But correspondingly, unless that 50% of the population can agree on the wording of an amendment and get parliament to agree to put it to a referendum, it's not going to happen.

I suppose where I'm most cautious is with clearly stupid legal situations that don't have 50% of parliament willing to stand up. Abortion springs to mind, the 20% of the population who don't want legalisation seem evenly split between those who think it's already legal in all situations and those who think it should never be legal in any... but it seems that 80% of elected MPs will not go near the subject.

We really should have some means to force a referendum in an unwilling parliament, purely so that we can override stupidity when necessary. Lèse-majesté and treason spring to mind as possible examples.

Yay, what remains of my basic rights are safe as long as 50% of the population and 25% of parliament agrees that I should be allowed to keep them

It's an or, not an and. But more importantly, it would mean your basic rights are substantially more secure than under the status quo. If this ever happens it'll be important that the great isn't an enemy of the good

It's an or, not an and

The way it's written above I think either 75% of parliament, or 50% of the population can strip basic rights, and it requires both other groups to be stronger to resist since either avenue can succeed independently.

Viz, if 80% of parliament want to change the constitution but 60% of the population don't, those right are gone since parliament can pass the change (and prevent a contrary referendum being held). Contrawise, if 60% of the population want a change and 26% of parliament don't, the parliamentary vote will fail but a referendum vote will pass and the referendum succeed.

If 51% of MPs disagree, some of those MPs first have to be unelected and replaced with more compliant MPs before the referendum enabling bill(s) can pass, even if all that's required is funding. Referendums designed to overrule an uncooperative parliament are very hard to do.

Contrawise, if 60% of the population want a change and 26% of parliament don’t, the parliamentary vote will fail but a referendum vote will pass and the referendum will almost certainly pass.

That's still up for resolution, but under the process in the Electoral Act, it's either 75% of Parliament, without the public, or 50% of Parliament + 50% of the public. The only way the public get asked is if Parliament actually passes a law setting up the referendum.

I will note however, that the alternative, not have an entrenched bill of rights, isn't much of an improvement from your perspective.

I will note however, that the alternative, not have an entrenched bill of rights, isn't much of an improvement from your perspective.

Entrenching would be a huge step forward, I agree. I would like to have constitutional rights, and generally I don't.

I'm just cautious that we don't entrench foolish or awful things. I have significant respect for our man Sir Geoffrey and his abilities, but I'm also aware that he's going to necessarily aim for a consensus position rather than a philosophical one. There's a risk there that people won't see the point of having a few existing rights guaranteed, where they might be more inclined to support a more ambitious suggestion.

Plus, to many people the rights currently under attack aren't real - any talk of a right to privacy or security from surveillance marks you as paranoid. The right not to self-incriminate is likewise being actively pushed towards "anything you can keep silent about while being tortured". In a way it's misleading - many people think they have rights that aren't in fact acknowledged by government, don't realise how government already tramples those imaginary rights, and would be unhappy if they knew. Others, of course, want those rights not to exist (many of whom imagine that only other people will be affected).

Perhaps if the proposal was a list of rights, with a few marked as "you already have these", and rest marked from "you sort of have this, sometimes" to "hahahaha", people might be more inclined to support extending the list. Especially when it was pointed out that it only takes 50% of MPs to remove most of those rights.

I'm also thinking of various decriminalisation campaigns, and how it would probably be difficult to add new rights as opinions change. Which can be a good thing, but also nasty if you're on the wrong side of the existing law. I mean, homosexuality is all very well, but if prostitution and abortion fall on the wrong side of a right, changing that could be a nightmare.

Abortion is a useful example, I think. If a fertilised egg gets human rights there's going to be a heck of a fight to keep abortion legal even under the limited circumstances we currently have. But if slavery is outlawed, abortion before viability is hard to argue against, and right up to the moment of delivery could reasonably be supported. Competing rights in 3...2...1...

a no-change constitution

The difficulty would be determining what that amounts to. Take ‘royal assent’, for instance. It hasn’ t been denied ever since 1878 in NZ (at the behest of Britain), or in the UK since 1707.

Is it now a nullity? Or could a minority government that was faced with a bill that it disapproved of and couldn’t veto financially decide to advise the G-G to refuse assent? And if it was in the constitution in black letters: the G-G will assent to or decline assent to laws on the advice of the government, would it then become a government veto similar to that wielded (frequently) by US presidents?

Or indeed, could a G-G decide to act without advice – would a written constitution prescribe that they could not (and if it didn’t, would they then have reasonable grounds to judge it a matter of discretion)?

Anyway, I tend to the view that we'd be better off trying to change our constitution in the bright light of a crisis (as Icelanders has tried and so far failed to).

We may then be inspired. I'd see the key points as:
- entrenched and enforceable human rights
- entrenched and enforceable social and economic rights
- the right to devolved self governance (by communities including iwi, cities and neighbourhoods)
- the entrenchment of the Treaty

I'd consider that layer one and immutable. Layers below that, changeable by referenda, could specify organisational details and below that would sit the general laws.

- the

Another option, and one which might be favoured by those wishing to codify the essence, rather than the letter, of the current status quo is something like the Swedish monarchical model.

The Swedish constitution nominates a monarchical succession but grants that monarch more or less no powers.

An NZ constitution modelled on this would replace all the various powers exercised by the G-G on governmental advice with powers directly exercised by the government/parliament, so bills would become law on third reading, governments would be formed by vote of parliament, etc.

I suspect this would be highly unpopular amongst the many who hold a poetic view of reality.

We may then be inspired. I’d see the key points as:
...
- entrenched and enforceable social and economic rights

Sir Geoffrey was asked about social and economic rights. He noted he was a conservative on such issues, asking eg, what we think a court could do in current circumstances if there was a right to housing.

Sir Geoffrey was asked about social and economic rights. He noted he was a conservative on such issue

The Treaty includes a number of rights that today are considered economic (in English, anyway), like fishing and forestry. Leaving those out of the constitution would raise eyebrows, regardless of the rationale.

Which reminds me, is the proposed constitution subservient the the treaty (which is after all our founding document), or superior to it? I'm kinda curious, because the legal status of the treaty is something I haven't really researched.

Which reminds me, is the proposed constitution subservient the the treaty (which is after all our founding document), or superior to it? I’m kinda curious, because the legal status of the treaty is something I haven’t really researched.

The Treaty is part of Palmer's constitution.
(at least as it is currently drafted)

In would be essential that in any national discourse with or without Sir Geoffrey's initiative for a written, by degrees entrenched, constitution, the clinical comparison between the status quo constitutional fragments and any proposed content with its change decision coding, is clear. This has not been a signal feature of the discourse to date, as the focus has been constantly diverted to the Treaty, the degrees of entrenchment of any rights, and the decision mechanisms and thresholds for changing.

The value of Sir Geoffrey's start is an enunciation of the bundles of rights and responsibilities applying to all and to "Maori" or "iwi". Don't become too diverted or cute in the diversions to colour the written value of the overall thing.

If Parliament passes a law with 75% super-majority that conflicts with something in the constitution, what actually happens to the constitutional provision?

Does it just not apply where it conflicts with that specific law, or is there a general interpretation principle that it won't apply in similar conflicts with other laws, or does it have to be changed to remove the conflict?

And does the approach change depending on whether Parliament agrees there's a conflict or just says the courts are thinking about it wrong?

If Parliament passes a law with 75% super-majority that conflicts with something in the constitution, what actually happens to the constitutional provision?

Does it just not apply where it conflicts with that specific law, or is there a general interpretation principle that it won’t apply in similar conflicts with other laws, or does it have to be changed to remove the conflict?

I would guess that Sir Geoffrey will propose that the Constitution is over-ridden only in the particular circumstances, although it may be that, depending on the particular case, that the Courts may be more like to defer in related circumstances in the future.

I wish the guy well in his attempt, but any establishment lawyer is unlikely to produce a constitution that serves anyone other than establishment interests, right?

Take the oath to serve the monarch that all MPs must take in order to participate in parliament, for instance. Bet he retains it! I can't become an MP because I would refuse to take that oath. However, if there was an opportunity to swear to serve the public interest, I'd do so willingly!

I also can't see any validity in a constitution that defines the British Crown as the head of state (an abstraction of the concept of monarchy). I would only see validity in a constitution that defines the state as the national expression of the people as a whole, as sovereign over the land of Aotearoa.

I see no merit in retaining the old double-dutch name the settlers recycled from the discover of this country. Born here & growing up in the fifties I never understood why everyone dismissed double-dutch as gibberish in conversation, yet thought it okay for the national name. Not merely slow-learners, more like a nation of retards.

And why would anyone with half a brain (or more) think it was acceptable for the Maori to retain their traditional patriarchy? Pakeha eliminating the vestigial entrenched privilege system of their patriarchy ought to alert Maori to the prospect of making similar progress. Subservience forever is inappropriate for human dignity.

Hiding behind the Treaty isn't going to work. The Maori aristocracy ought to consider the merits of providing an exemplary role-model for the future. Clinging to the Treaty like a toddler clinging to its security blanket sends the wrong message!

My advice to Sir Geoffrey: don't propose any new constitution for Aotearoa in which the Treaty of Waitangi functions as a strait-jacket on the body politic. Nothing wrong with citing it as the founding document of our nation, nothing wrong with using it as the basis of our bicultural evolutionary trajectory, a racial partnership model. The concept of dual sovereignty was most certainly endorsed in the Treaty, but I would only accept continuation of that as an ideological component of a new constitution if it is constrained and subordinated to a primary clause that vests national sovereignty in the people of Aotearoa as a whole; and local sovereignty to the people of the Maori tribes - over their lands held at the time of the Treaty (minus what they've subsequently sold) - not to their rulers!