BY THE SECOND HALF of 2022 the right-wing assault on the Treaty policies of the Left will be raging.
At the level of local government, candidates known to support the Government’s Three Waters scheme will be targeted for electoral destruction. The local government elections will be repurposed as a national referendum on the Three Waters legislation. If its supporters are voted out, then the Government will face increasingly angry demands for the scheme’s abandonment.
On the broader political front, NZ First, finally free of the Serious Fraud Office’s investigation, will be terrifying rural and provincial audiences with tales of rampant, government-supported Māori separatism hellbent on destroying New Zealand democracy.
With contrapuntal precision, Act’s David Seymour will be reassuring the people Winston Peters has been terrifying that the price of Act’s participation in any coalition government of the Right will be the effective nullification of the Treaty of Waitangi.
National, with less venom and vitriol than its potential allies, will, nevertheless, have re-positioned itself on Treaty issues. Christopher Luxon will argue that what “normal” New Zealanders want more than anything in 2023 is a restoration of “social cohesion”. National’s position will be that social cohesion is impossible while three of New Zealand’s parliamentary parties are promoting racially-charged and undemocratic policies calculated to drive New Zealanders apart.
Labour’s, the Greens’ and the Māori Party’s ability to successfully counter the Right’s attack will be fatally undermined by their deafening silence on the key issue of whether or not they intend to seek formal popular authorisation for their radical (some would say revolutionary) proposals.
To date, however, the te Tiriti-driven policies and plans of all three left-wing parties offer no opportunity for the people of New Zealand to have their say on the profound constitutional changes being promoted.
The Left’s refusal to abide by the long-established conventions for validating and effecting significant constitutional change in New Zealand will leave them wide open to the charge that they are conspiring to brush aside their country’s democratic traditions.
The most damaging aspect of the Right’s charge will be that it is true.
The te Tiriti-driven constitutional transformation proposed by the parties of the Left makes no provision for popular ratification. The radical changes proposed – like Three Waters – will either be imposed by statute, or achieved by judicial fiat. No heed will be given to the venerable notion that it is unacceptable for a government in possession of a temporary parliamentary majority to fundamentally change the rules of the political game. The convention that significant constitutional reform – like altering the way parliamentarians are elected – must be put to a referendum, will be over-ridden.
Labour and the Greens have “form” in this regard.
The Labour-led government of Helen Clark established the New Zealand Supreme Court and abolished the right of New Zealanders to appeal to the Privy Council in London, simply by passing a law to that effect. In spite of the radical reformation of the New Zealand judiciary proposed by the law’s supporters, New Zealanders were given no opportunity to vote the reforms up or down.
Labour’s parliamentary caucus has not grown any more supportive of New Zealand’s democratic political culture in the years since the Supreme Court Bill was passed in 2003. Indeed, the venomous scorn poured upon the defenders of freedom of expression by some Labour and Green MPs strongly suggests that the rights and freedoms granted to all New Zealanders by the Bill of Rights Act (and, for that matter, the Treaty of Waitangi) are regarded as irritating obstacles to the imposition of a new te Tiriti-based political order.
The process adopted by the Clark Government in relation to the Supreme Court Act is, however, instructive.
According to the Department of Courts own historical summary:
The issue re-emerged in early 2000, when the Labour/Alliance Government agreed to review the role of the Privy Council. In December 2000 Cabinet approved the release of a discussion paper entitled Reshaping New Zealand’s Appeal Structure. It invited public comment on three options to replace the Privy Council. Submissions were evenly divided on whether appeals to the Privy Council should be abolished or retained. There was a clear consensus however that if appeals to the Privy Council ended, a replacement stand-alone court sitting above the Court of Appeal should be established.
Further public consultation culminated in the report of a Ministerial Advisory Group. This formed the basis of a Supreme Court Bill. The bill was introduced in 2002, and passed by Parliament on 14 October 2003. The Act came into force on 1 January 2004, officially establishing the Supreme Court, and at the same time ending appeals to the Privy Council in relation to all decisions of New Zealand courts made after 31 December 2003.
Remember that sequence: A “discussion paper” is released. Public “comment” is invited. In spite of expert opinion being “evenly divided”, “further public consultation” takes place. Eventually, a “Ministerial Advisory Group” presents a report. This report becomes a government bill. Public submissions on the bill are invited by a Select Committee of the House. The shape of the bill remains essentially unchanged. Despite strong representations from four of the seven parties represented in Parliament, the call for a referendum is rejected. The bill passes, 63 votes (Labour, Greens, Progressives) in favour, 57 votes (National, NZ First, Act, United Future) against.
That is how easily our constitution can be changed – if a government is sufficiently motivated to do so.
This essay was originally posted on The Daily Blog of Thursday, 10 February 2022.