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.

"Hidden" - The New Zealand Version

Hidden In Plain Sight: Philip Glenister plays seedy small-time lawyer, Harry Venn, in the UK television series Hidden. The plot turns on the lethal manoeuvres of sinister business and media figures as they attempt to turn a hung parliament to their political advantage. In eighteen months New Zealand could be living through its very own version of Ronan Bennett's screenplay.

HIDDEN is a gritty BBC political drama series written by Ronan Bennett. Crucial to the plot’s development is a UK general election result from which no clear winner has emerged. As day after day passes without a government, and rioting convulses London, a billionaire businessman, working secretly with a ruthless media proprietor, prepares the public for a right-wing coup d’état. Though the screenwriter never reveals the political identity of the caretaker PM, the inference is strong that he’s a moderate Tory who’s usefulness to the powers-that-be is at an end.

 

Right here in New Zealand, in just 18 months’ time, life could very easily be imitating art.

 

John Key, the National Party’s moderate but unpopular leader, faces the near impossible task of creating a government out of an election result from which no clear majority is readily discernible – for either the Right or the Left.

 

The Governor-General asks Mr Key, as leader of by far the largest party, to try and form a government. Day after day drifts by without any sign of a breakthrough. All eyes turn to the leader of the Labour Party. Can David Shearer succeed where Mr Key is failing?

 

While Mr Key contemplates the election’s intractable political arithmetic, Mr Shearer begins pressuring the Green Party. He needs to know how badly their leaders want to be Cabinet Ministers. Is it possible that, for the sake of the country, they might step aside and allow Mr Peters and his NZ First colleagues to form a minority government with Labour? And would they then be willing to keep that government in office by voting it Confidence and Supply? When the Greens protest, Mr Shearer warns them that any refusal to step aside will almost certainly see Mr Peters pledge NZ First’s votes to Mr Key.

 

The Greens are in a quandary. As the third largest party in the new parliament, they should be in the box seat – but they’re not. On the contrary, pressures are mounting for them to be written out of the political play entirely.

 

Every day the mainstream news media finds a new way of branding the Greens as “too radical for government”. Business organisations warn of dire consequences for New Zealand’s economic future should Russel Norman and Metiria Turei come within a bull’s roar of the Cabinet Table. The country’s international credit rating comes under review and international lenders quietly voice their growing fear of a Labour-Green Government to the Governor of the Reserve Bank.

 

When the Greens point-blank refuse to rule themselves out of government, the political tension is ratcheted up a few notches. The news media immediately seizes upon the fact that National won more votes than any other party. Never before, they correctly claim, has the party which won the most votes been denied the right to govern. That being the case, thunder the nation’s editors, the onus falls upon the “responsible” parliamentary parties to provide National with a working majority.

 

With the Greens’ “irresponsibility” taken as a given, and with NZ First’s numbers falling just short of the majority “the country” so desperately needs, the private cell-phones of certain Labour and Green MPs begin to vibrate.

 

First they are offered the carrot: guaranteed Cabinet seats, High Commission postings, seats around some very important (and well-remunerated) boardroom tables. If that fails, they are shown the stick: video recordings of what they thought were “secret” assignations; terrifying estimates of the tax owing on their undisclosed offshore incomes; pretty-much everything they did last summer.

 

The Governor-General gives Mr Key just 48 more hours to form a government. Mr Shearer, secretly informed that a critical number of Labour and Green MPs are about to defect, announces his party’s unwillingness to enter into any kind of agreement with the Greens. Mr Peters announces NZ First’s willingness to join in a “Coalition of National Unity”. National’s caucus meets to deliver Mr Peters’ price – John Key’s political head.

 

The Governor-General invites Judith Collins to Government House.

 

This essay was originally published in The Dominion Post, The Waikato Times, The Taranaki Daily News, The Timaru Herald, The Otago Daily Times and The Greymouth Star of Friday, 7 June 2013.