Thursday 10 February 2022

Proceeding Without The People: Labour’s Gift To The Right.

Colonial Relic: 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. 

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.


DS said...

Abolishing appeals to the Privy Council is perfectly within the scope of statute. It's far too technical a matter for referendum (traditionally reserved for the voting system and the length of the parliamentary term). By your reasoning, Labour's abolition of the Country Quota in 1945, National's abolition of the Legislative Council in 1950, the abolition of the death penalty in 1961, Labour's lowering the voting age to 18 in 1974, the Waitangi Tribunal itself in 1975, and the NZ Bill of Rights Act in 1990 should have been sent to referenda. Hell, why not put knighthoods to referendum while you're at it.

Dunxharfe said...

So they can change the constitution just like that.
All I can say is if this Labor lunacy is allowed to continue....
Kiwi's in all korners of the kuntry can kiss their once free arse goodbye

John Hurley said...

I have a theory about our meritocratic society.
Just 5 minutes ago B told me about "the twins" who were wizzes earning $95/hour.
You go to school and are streamed and IQ is like height - an undeniable fact. As a result all the talent (including the voice) migrates to the middle classes. As in Two Years Before the Mast Richard Henry Danna forsook college hoping to improve his eyesight and sailed on Pilgrim around Cape Horn to California and the public were to learn of the deprivations of the common sailor.
Wokeness is the sacrilisation of minorities and you can imagine how some people might (secretly) hold the unachievers ("went to school with __") in disdain. Students are an arrogant bunch.

To the working class being "us" (as distinct from "them") is important (Paul Spoonley uses "uz").
Ottawa’s truckers are a symptom of the massive class divide that is opening up across the West. Marxists are sticking their heads in the sand about this generational moment, or papering it over with absurd topsy-turvy leaps. In one recent display of moon logic, the Canadian activist, writer and self-described socialist Nora Loreto complained that “labour” was invisible in the resistance to the “fascist” truckers that had occupied Ottawa. An exasperated comrade chimed in with a story of being a shop steward for a teamster (truck driver) union, and — horror of horrors — the painful truth was that many teamsters were more likely to be in the protest themselves than protesting against it.

The exchange is modern Western Leftism in a nutshell. Is there a single better illustration of the contradictions of the moment? An “activist” and organiser” recoiling in horror at a bunch of truckers — people who work in the real, material economy, ferrying the foodstuffs and goods we all depend on to survive — staging a political protest, only to then ask “but where is the organised working class in all of this?”. Isn’t it obvious to the point of parody that the workers are the people inside the trucks?

The Detail is denying that they would be influenced by the money they receive, but they only fund a particular narrative National Realestate on one side of the road and Labour (export education) on the other.

Guerilla Surgeon said...

I'm not at all sure that changing the Constitution relatively easily is necessarily a bad thing given the fact that the US government is continually hamstrung by not being able to change their Constitution in any meaningful way. Judging by the dissonance between what the US public want according to opinion polls and what US politicians actually give them – it would seem that the their Constitution is being used by politicians in order to escape governing on behalf of the people. I'm not a constitutional expert and I don't know if ours is changed too easily, but I think whatever it is it's probably better than not being able to change it at all. But I'm willing to be persuaded. :)

The Barron said...

I have no idea where my old copy of 'Unbridled Power' is, presumably at the back of a cupboard with faded copies of Political Review, so I will have to rely on memory.

NZ has an unwritten constitution, therefore, all legislation builds the basis of the constitution. Legislation is passed by Parliament or regulations by sub-governmental bodies such as local council empowered by Parliament. The Courts interpret the laws, taking into account the letter of the law, the intention of the legislators and international agreements and jurisprudence that will inform the Courts.

My memory of the change from the Privy Council to NZ Supreme Court was that almost all Commonwealth countries had progressively cut ties. Australia in 1986, Canada 1949, India 1950 etc. I am unaware of any that use referenda in these changes. The only independent nations that are still tied to the United Kingdom Privy council are a handful of Caribbean and Pacific countries with small populations and limited judicial capacity. My memory suggests even the British Privy council saw the NZ connection as an anachronism by 2003.

I am not sure where you see the convention for referenda in NZ. All legislation potentially impacts the unwritten constitution.

I am still astounded that Three-Waters continues to be presented as Te Tiriti driven. In the sense that the State has a commitment to Maori for the protection of the quality of water and environmental concerns as to waste disposal, that is a general Treaty commitment regardless of Three-Waters. The question is how the Crown is meeting the obligation. Under the current local body structure it is not achieving this for Maori or other New Zealanders. The shift in Three-Waters is firstly within the Crown mechanism for water management. As you note within your post, there is change in local government that ensures Maori contribution and voices. The status quo would also have Maori representation. However, the status quo has failed both Maori and the Crown in the management of water. Three-Waters is a shift from local government, to a more centralized over-view. Maori interests remain whichever structure, and have been transferred into the new model.

I am sure others will note in response that the massive privatization and commercialization of Crown assets in the last decades of the 20th Century was without referendum, and more far reaching that that proposed now.

There have been a lot of comments of late which seem to suggest that the NZ Courts have been activist on Te Tiriti issues. I have previously noted that the Prendergast decision was the judicial activism, not the modern correction. Regardless of Te Tiriti rights, customary rights are as much a part of the unwritten constitution as any other legal concept that has evolved from Anglo-Saxon and international law. The Courts must acknowledge this, and has. The second point is a quote from the great jurist Eddie Durie - "the Treaty is a living document". Too often do we have bush lawyers trying to freeze a mid-19th Century view to limit a 21st century application.

Co-governance models are being developed in Scotland and the other British Countries, Belgium, Spain, Fiji and beyond. That New Zealand is evolving its own model for the delivery of State services is exciting. The tyranny of the majority should never hold back the rights of the disempowered. We are evolving our own way of governance which should not be power over, but alongside.

Archduke Piccolo said...

Is the 'Three Waters' project really just about 'woke' and/or identity politics? There seems to be a lot of sense in the principle at least. And what policy, if any, has the political Right?

There does come a time at which all the talking around a topic has to cease and the decision taken. Has this Labour Government been too premature and/or high handed in taking its decision? Is the political fallout described in this article the inevitable outcome whenever the Government takes a needful but unpopular decision?

1975 seems to indicate the answer: probably.

Ion A. Dowman

Chris Morris said...

The really important thing that you didn't specifically cover is whatever laws the Left puts in place can be changed by the Right when they get in power. They can also introduce their own constitutional outrages. Then the left can't even legislatively complain because the Right can quite properly say "you did it first". Things like that resonate with the public.

David George said...

The Barron: "the status quo has failed both Maori and the Crown in the management of water"

It's far from clear, and contrary to experience that the creation of large, remote and unaccountable bureaucracies will lead to anything other than greater costs and complexity.

While I'm sure there are issues (Wellington's waste water problems?) and sometimes things go wrong in any complex system, it's not right to describe the current system as a failure. Our waste, storm and potable water systems are very good and work well almost all the time. We have the second equal highest standard of drinking water in the world for example.

If it ain't broke, fix it till it is?

Guerilla Surgeon said...

I fail to see why anyone would oppose the three waters thing unless they have some sort of interest invested in the present system. It's not as if local councils have looked after our water particularly well is it? So I suspect the fuss it's being driven by local councils because they don't like to give up power, and farmers because they are the main polluters of our lowland rivers and they want to be able to keep polluting.

David George said...

TB: "The tyranny of the majority should never hold back the rights of the disempowered."

The tyranny of the majority Baron (Freudian slip?) or tyranny by the majority? If the answer to that problem, such as it is, results in tyranny by the minority then no thanks. We've got a Maori GG and parliamentary representation well above the Maori proportion of the general population. A disempowered, tyrannised minority?

Elizabeth Rata: "The classification of individuals as members of ethnic categories is extended to political categories. Membership of an ethnic category takes precedence over citizenship as a person's primary political status. One's political rights follow from this status. The acceptance of ancestral membership as a political category, rather than a social identity, has huge implications for national cohesion and democratic government. It is where ethnic fundamentalism becomes a major problem for us all."

You want it Darker?

There's a lover in the story
But the story's still the same
There's a lullaby for suffering
And a paradox to blame
But it's written in the scriptures
And it's not some idle claim
You want it darker
We kill the flame

If you are the dealer, let me out of the game
If you are the healer, I'm broken and lame
If thine is the glory, mine must be the shame
You want it darker

The Barron said...

On the subject of judiciary ...

I don't know if it is these troubled times, or I m just getting older, but I find myself drawn to music I would have previously dismissed as 'comfort music'. As a result of of this disturbing trend, I recently purchased a Three Dog Night compilation. as I was listening, their version of the song 'Black and White' came up. It must have been 40 years since I last heard it, even as a school boy I dismissed it sentimental bubble-gum which the more progressive would request for 4ZA's Gore's Housewives Choice.

Curious, I looked into the origin of the song. Written in 1954 by David I. Arkin and Earl Robinson. It was first recorded by Pete Seeger. Robinson was a communist on the blacklist, Arkin was the father of future Actor / Director Alan Arkin. It was inspired by the United States Supreme Court decision of Brown v. Board of Education (1954), which outlawed racial segregation of public schools. It included a first verse which Three Dog Night and others excluded -

Their robes were black, their heads were white,
The schoolhouse doors were closed so tight,
Nine judges all set down their names,
To end the years and years of shame.

This clearly flowed onto what should have been the second verse -

The ink is black, the page is white
Together we learn to read and write

A clear reference to the signing of the decision and education. Within the third voice we see the celebration of the Supreme Court Ruling -

And now a child can understand
That this is the law of all the land

The dance of liberty and the seeing of the light is euphoria of the social and judicial change.

Yet within two decades, it is reduced to trite feel good, with children's choir and platitudes.

I raise this because unless we acknowledge and celebrate judicial steps towards equality and liberty, it can be lost, taken for granted and the power of the law minimized to sentiment can be lost.

When Williamson, J gave the decision in the Te Weehi case, it was not just the Treaty he invoked, but used jurisprudence developed since Anglo-Saxon tradition to ensure that customary rights is recognized as having always existed in NZ law. We should celebrate in song, not bury in misinformation.

Marty Silva said...

It seems you have bought into the right wing narrative that Three Waters will give iwi some degree of control. On the published documents, it does not. Iwi and councils will have a joint say in appointing a panel that will then appoint a board to the water entities. Those entities will have sole decision making powers. So, a long long way from iwi having any say on decisions.

As for the Privy Council being cut adrift, what? You liked the idea law lords in London were top of our legal tree? The Privy Council itself was increasingly refusing to hear NZ cases on the grounds they were too removed from NZ to make good decisions. There were no doubt some cases involving extremely difficult legal consideration where the lords were probably the best in the business but sheesh, the apron strings have to be cut at some stage and faith put in our own domestic legal minds.

Cara said...

A change to sharing political power between two ethnic groups defined loosely by either 'lineage' or 'self identity' would be a major departure for our country.
Such changes are called 'shifting the goalposts' & governments who do that without reasonable justification get voted out of office.

The Barron said...

Tyranny of the Majority:
The Tyranny of the Majority is an inherent weakness to Majority rule in which the majority of an electorate pursues exclusively its own objectives at the expense of those of the minority factions.

The Barron said...

Yes David. the water infrastructure is broke, even in the richest best resourced councils, let alone councils with rural poor.

Neil Keating said...

RE Three Waters: three comments worth considering

At first, I unthinkingly endorsed much of the moaning about this.
Then I read three comment items that lean towards, or fully support, the Government's proposals. Yes, I know, it's Labour-type centralisation etc etc.
But as my late mentor Dr Brian Shorland OBE urged me during my tertiary study days: "Always read your critics."
So here are the three comments:
1) Brian Fallow, NZ Herald, 10/9/2021: 'Water reform logic flows one way";
2) Jane Clifton (yes, yes I know she's Trevor Mallard's wife), NZ Listener, 20/1/2022: 'Water into whine';
3) Catherine Kelly, a water industry professional of 20+ years standing, in a letter on Facebook on 30/1/22.

DS said...

"Tyranny of the Majority" has traditionally been a red herring, of course. If you have a majority of the population genuinely unwilling to accept the human rights of a minority, then you have social problems that cannot be resolved by merely tinkering with the governmental system. Deeper social change would be required - getting people to actually change their views... and trying to dismantle the barriers between majority and minority.

"Tyranny of the minority" has always been a much more pertinent problem - though seeing as so many on the modern Left have such a heartfelt loathing for the great unwashed masses, that tends to be ignored. The masses are now considered the obstacle to Progress.

sumsuch said...

A right-winger, someone who is out of their depth on a Left blog, unless intelligent. That doesn't include Wayne Mapp. Good heart in his case like many NZers, which doesn't seem to help.

Why are the majority of them fools? We glide past their no sense and they take it as we have no arguments.

Ian said...

The Three Waters scheme is an easy target for opposition parties, lobby groups and disgruntled Kiwis of all skin colours. Because they haven't used a clear story to sell these reforms it is almost as if Labour wants it to fail. Opponents can make up anything they like about Three Waters and put the government on the back foot defending something they haven't bothered to sell to the public in the first place. The main challenge for National and ACT will be to get voters worked up about an issue that Labour seems to think voters will be too apathetic to care about.

Auckland lawyer Dennis J Gates launched a petition for a non-binding citizens initiated referendum on 3 April 2003, asking the question "Should all rights of appeal to the Privy Council be abolished?" it failed to get enough signatures.