Media Release
Constitutional
Task Force
Paper for Discussion within the
National Party
REPORT OF THE CONSTITUTIONAL TASK FORCE
For the NZ National Party
March 2001
At the Annual Conference of the NZ National Party in 2000, a Constitutional Task
Force was established to make recommendations to the Party on constitutional
issues that might be considered for inclusion in the manifesto for the next general
election. Its term of reference was:
'To review New Zealand's current constitutional arrangements and, following
consultation, recommend changes to the existing constitutional framework needed
to advance New Zealand's future.'
The following comments of the task force represent its own conclusions that
have yet to be considered by the NZ National Party. Accordingly the views
expressed are not to be taken as the policy of the NZ National Party in any
way and are simply advanced for the party to consider.
The members of the task force were:
The Rt Hon Sir Douglas Graham KNZM (Chairman)
Warwick Cambridge
Chris Finlayson
Denese Henare ONZM
Peter Shirtcliffe CMG
Preliminary comments
The task force decided early in its deliberations that:
1.That the term 'constitutional arrangements' would of necessity be restricted
to constitutional issues that are likely to confront New Zealanders short to
medium term
2.That as constitutional matters go the core of our democratic principles, any
proposal for reform must be approached responsibly and must be based on
principle and not on political expediency
3.That such matters can be the subject of strongly held views at each end of
the option spectrum and that debate should be encouraged
4.That at this early stage of policy development 'consultation' would of
necessity be restricted to policy committees of the party only
5.That any recommendations made by the task force should, at this stage, be
fairly broadly based. Detailed work would clearly be required if the party
elected to adopt any of them.
The task force began its deliberation using e mail, then met together in Wellington,
then prepared and circulated a questionnaire to policy committees asking for
opinions and requesting any additional topics for consideration, studied the 25
responses, met again in Wellington and prepared this report.
The task force places on record its appreciation for the assistance provided by John
Slater, President of the party, and David Major and Brenda Toner at party HQ.
Before discussing the topics and making recommendations on them, the task force
would like to make one or two further preliminary remarks.
First, as mentioned above, constitutional issues are critical to the preservation of
our democratic traditions and must be approached with great care. Decisions must
be based on sound principle. Having said that, the task force did not believe the
topics to be so sacrosanct that there should not be any debate at all. Indeed it is
essential in our view that the party [and any political party for that matter] is
aware that attitudes change over time, that alterations to even important
institutions will result even if it is slow to develop and even highly controversial.
There is potential for the party to put changes on the horizon to one side in an
attempt to avoid such controversy. While this is understandable the task force
considers that a responsible party should raise such issues notwithstanding these
concerns, and the public must ultimately be left to judge the wisdom of bringing
them to their attention and, ultimately to decide the final outcome. Further the task
force believes that the public may well respond favourably to strong forward-looking
leadership in these areas if what is proposed is sensible, principled and innovative.
We now turn to the actual topics considered.
These are:
1.The future of the monarchy in New Zealand
2.The voting system and how that should be determined
3.The number of MP's
4.The future of the Maori seats
5.The future of the Privy Council
6.The place of the Treaty of Waitangi in the constitutional structure
7.The desirability of a written constitution
The future of the Monarchy in New Zealand
The task force believes it is only a matter of time before New Zealand will have to
decide whether to become a republic. It is hard to judge when the issue will need to
be addressed. There is no strident call for change at this time, and the current
monarch is clearly held in great respect. This creates something of a dilemma. While
there is a temptation to do nothing at this stage and treat the matter as too
delicate, that could generate major problems later when the issue does arise. This is
because there is thought to be poor public understanding of constitutional matters
generally, and what a change to a republic would involve in particular. It seems to
us that this topic can no longer be put to one side. Comments from the party policy
committees indicate a wide range of views. A slight majority thought the party
should state that it appreciates the matter may arise at some stage and that, when
it does, it will be decided by referendum. That much seems unexceptional and
sensible. It need hardly be said that such a constitutional change could only be
decided by referendum. But it does not address the problem of the poor level of
public understanding that may well take some years to rectify. That is left for
action at some time in the future. In the event there is sudden surge in support for
republicanism, the more informed the public is, the better the critical decisions made
will be. There are lessons, we believe, to be taken from the move to MMP. Despite
an expensive, taxpayer funded, educational campaign on the options, many would
argue that members of the public often had little grasp of the issues as they cast
their votes in the referenda. Major constitutional decisions such as these should
never be decided without every effort having been made to enable the public to
understand what is at stake and what the alternatives are.
In summary therefore, we consider the time has come to acknowledge the
inevitability of the question arising. It follows that some steps should responsibly be
made to begin to inform the public on the issue in the knowledge that may take
some years. It should be stated clearly therefore that the next National government
will direct the Ministry of Justice [or an independent panel] to begin the preparation
and dissemination of neutral apolitical material explaining in simple terms what a
change would mean and how it would be done. We also consider that the party
could announce that under no circumstances would the matter be put to a
referendum until the end of the present sovereign's reign. It should also be made
clear that even if New Zealanders voted to become a republic, the Treaty of
Waitangi would remain the founding document of the country, and the rights and
responsibilities under it would remain. Finally it must be emphasised that it will be for
all New Zealanders, and not the government, to determine the outcome.
We appreciate the adoption of such a position will cause concern to some National
party supporters. Many are staunch monarchists. Their dismay might be partly
assuaged by the acknowledgment that there would be no move until the death of
the present Queen. But it will be a major move from the party's present stance and
we have asked ourselves whether that is justified. After careful consideration we
think it is. It would of course need to be presented rationally and calmly. But we
think on balance that most New Zealanders will see the sense in making
preparations now for a very major constitutional change that deep down they know
is inevitable. Handled properly the policy could be rightly seen as responsible and
innovative.
Recommendation 1
That the National Party in the next manifesto acknowledges that in the
foreseeable future there is likely to be support for NZ becoming a republic.
When it does the matter will be decided by all New Zealanders by
referendum. No such referendum will be held by a National government until
the present sovereign's reign comes to an end. However it is appropriate
that such a major decision be preceded by an independent and neutral
educational campaign to explain what is involved and how it could be done.
The Ministry of Justice [or an independent panel] will be directed to begin
work on such a campaign that is likely to take some years to complete. In the
event the referendum supports a change to a republic the rights and
obligations under the Treaty of Waitangi will remain unaffected.
The voting system and how that should be determined
Just as the task force began to consider this topic, the Rt Hon Jenny Shipley,
Leader of the Party, announced that National would hold a series of referenda on
whether there should be a change from Mixed Member Proportional [MMP] and, if so,
which system was preferred by the public. The task force fully supports this
approach. It is not for the current MPs to decide. Further, the task force expresses
the view that should there be a simple majority in favour of change, the outcome of
the second, 'run off' referendum should also be by a simple majority. However the
task force thought that, rather than remain disinterested in the result, the Party
should declare its preferred option assuming a consensus within it can be reached.
There was some support within the task force for a Supplementary Member system
but there was little point in the task force itself reaching a consensus. We
recognise that it is unlikely the National Government would be seen as neutral and
impartial while at the same time the National Party was publicly expressing its
preferred option. However we assume that the inevitable educational campaign
associated with the referenda will once again be the responsibility of an
independent panel and the Government itself will take no part other than an
overseeing role. On balance we thought that by entering the arena as it were, the
party might help avoid the vacuum in debate that occurred in the early run up to
the MMP reforms in 1993. That poor quality discussion came as something of a
surprise and was a major disappointment. It would be a matter of regret if it were to
be repeated.
Recommendation 2
That the next National Government holds a referendum to determine whether
the public supports a change from MMP and, if so, the preferred alternative.
Should a change be supported, then a further referendum should be held at
the time of the following general election to determine whether the preferred
alternative is supported ahead of MMP. Both referenda would require a
simple majority. The National Party should declare its preferred option.
The number of MPs
Again, our deliberations were rather overtaken by events in that the Party indicated
to a Select Committee that it favoured reducing the number of MPs to 99. The task
force agrees. It considers 99 sufficient to progress a reasonable legislative
programme under FPP [if that were the outcome of the referenda], and would be
just sufficient under a number of variants of proportional representation. We
acknowledge that the electorates would be large [and very large under proportional
representation] but believe that, with assistance to the MPs, that is manageable.
We do not see the question of the number of MPs to be a major issue.
Recommendation 3
That the National Party supports the House of Representatives consisting of
99 members.
The future of the Maori seats
Perhaps not surprisingly, this topic caused the greatest debate. On the one hand
there was unanimous acceptance that it is essential, and always will be, that Maori
have a strong presence and voice in Parliament. Maori have a distinct culture that
must be preserved at all cost. The experience in other jurisdictions where the
indigenous people take little part in the democratic process shows the dangers that
can arise. And so the task force welcomed the increase in the number of Maori MPs
since the introduction of MMP and the vibrancy of their input. We express our
concern that our Party does not seem to attract many Maori candidates for
selection as MPs and, consequentially, the number of candidates of Maori descent
standing both in electorates and on the list, while undoubtedly of high calibre, is
small. We urge the Party to do more to locate and encourage suitable candidates
and to ensure a sufficiently high ranking on the party list to make election to
Parliament more than likely.
The task force also acknowledged that the Party's position on the Maori seats has
for many decades been that they should remain until Maori expressed a wish that
they be abolished. There is no evidence that such a wish has been made. Indeed
there has in recent years been a trend for the numbers of Maori on the Maori
Electoral roll to increase and those on the General roll to fall. This has resulted in a
greater number of Maori seats [from 5 to 6 at the last election and possibly to 7 or
even 8 at the next] which could be said to indicate increasing support amongst
Maori for the seats. There needs therefore to be a compelling argument to abolish
them.
On the other hand there have been some marked changes in attitudes to the Treaty
of Waitangi, to the Crown- Maori relationship, to long outstanding historical Maori
grievances, and to preservation and promotion of the unique Maori culture. The
situation today is far different from even 20 years ago. The interests of Maori are
generally given careful consideration by decision makers particularly in central and
local government. And, of course, the advent of MMP has had a profound effect,
with the reduced importance of electorate seats, and the criticality of the party
vote as a determinant of the success at a general election. The number of MPs of
Maori descent now equates more or less with the percentage of Maori to the total
population. Taking all of this into account, it does not seem unfair to ask whether a
case can still be made to retain the Maori seats. It will be recalled that the Royal
Commission on Electoral Reform, after carefully considering the issue of the Maori
seats, recommended that they be abolished if MMP were introduced but without a
threshold for Maori parties. It believed MMP would result in political parties being
obliged to put Maori on their party lists to ensure as many party votes were
received as possible. When it was introduced, however, the National Government
accepted Maori representations that it would be fairer to defer that decision to see
whether MMP did in fact produce the result anticipated by the Royal Commission.
After two elections under MMP it would seem now that it has. Of course if the Maori
seats were abolished, whether Maori candidates would be elected in general
electorates more often than in the past, and whether they would be placed
sufficiently highly on the party lists to be elected, are moot points.
It would be possible to defer the question further until more MMP elections have
been held. But against that is a feeling amongst some, [but not all of the task
force], that with the greater visibility of Maori in almost all walks of life today, with
the increased willingness on the part of the Crown to comply with its Treaty
obligations to Maori, and with Maori MPs now equating to the population
percentage, the Maori seats can be viewed as rather unnecessary, separatist and
potentially divisive. There is perhaps a growing conviction amongst some of us that
the time has come to re examine a number of policies and institutions that manifest
a different approach to Maori. Some of us think much of the well-intentioned
affirmative action in the past has proved to have been patronising and has not
produced the outcomes hoped for. So in considering whether to support the
abolition of the Maori seats it is not the intention to 'punish' Maori in some way but
rather the reverse. Provided they are properly represented in the House as they
are, there is no longer any need for the seats.
It is worth noting, too, that while the Maori seats have been in existence for over
130 years, the tangible benefits to Maori have been less than impressive.
Historically under FPP the Maori MPs formed a small, rather invisible group within the
Labour caucus. It is not fanciful to suggest that, over the years, Maori have gained
far more from National Governments even though Maori support for National has
always been negligible and Maori National MPs few and far between. The point being
made is that action to promote Maori issues and deal fairly with them has not been
dependent on the Maori MPs as such.
It is possible that if the seats were abolished, some Maori would view that as the
extinguishment of the only manifestation of tino rangatiratanga in the constitutional
structure. They might argue that if there are to be no Maori seats then there should
be a separate Maori Parliament. While that argument may gain strength the majority
of the task force did not consider it would get much traction. But unquestionably
tino rangatiratanga is a complex and yet unresolved term. To some, including a
number of non Maori, it connotes a partnership with other New Zealanders through
the Crown, and that that partnership is best expressed by the Maori seats, few
though they be, or better still a Parliament with equal representation by the
'partners'. The abolition of the Maori seats would obviously run counter to this view.
But others do not consider tino rangatiratanga to mean that at all, and believe tino
rangatiratanga can be respected within a unicameral House open to all New
Zealanders Maori and non Maori alike. It has to be said that this is a difficult topic
with strong views on both sides.
On balance a small majority of the task force concluded that the time has come to
consider the abolition of the Maori seats. Unfortunately the minority did not agree
with the conclusion and we are happy to record their views as expressed by Denese
Henare. We accept that either view is a subjective judgment and that we have not
canvassed the views of Maori or non Maori to any degree. Obviously that has not
been possible with the resources and time we had. The majority however concluded
that there was sufficient evidence that Maori now play a full part in the democratic
process and are likely to do so in the future. That view coincides with the views
expressed by policy committees although there was support for both abolition and
retention. And no doubt there will be some non Maori who will favour retention, and
some Maori who will support abolition.
That being the conclusion of the majority, we then discussed how the question
should be addressed. There seemed to us to be two options. First, a referendum
could be held. This could be amongst the whole population [in which case Maori
would no doubt claim to be subject to 'tyranny by the majority'], or alternatively
just within Maori [in which case non Maori would likely claim their views had been
deliberately excluded on a matter of constitutional importance]. The second option
is simply for the party to state that it will be the policy of the next National
Government to abolish the Maori seats in Parliament. Legislation could be introduced
and sent to a Select Committee for submissions. This is not dissimilar to the
methodology used by the Blair Government in the United Kingdom with the reforms
to the House of Lords.
But to abolish the Maori seats without permitting Maori to express a view seems
inconsistent with National's long held policy and may well infringe the constitutional
principle that fundamental rights should not be removed without justification and
normally only with the consent of those affected. While there may be occasions
when that consent can be waived in some sort of emergency, the abolition of the
Maori seats clearly does not fall into that category. There is a strong imperative
then to seek the view of Maori at least before proceeding. Rather than decide the
issue ourselves we suggest two options for the party to consider if it determines to
move on the issue of the Maori seats.
There is one further point to be made. It is possible that the referenda on MMP
result in a return to FPP. In that event the risk of inadequate Maori representation
in the House would arise again. So the recommendations suggest that the MMP
referenda precede either the introduction of legislation to abolish the Maori seats or
the holding of the referendum amongst Maori on that topic.
It follows from this recommendation that the Party should not support automatic
Maori representation at the local government level.
Recommendation 4
That the National Party announces that provided any referenda on MMP
results in the retention of a form of proportional representation
EITHER
That the next National Government would hold a referendum amongst Maori
to determine the Maori view on the abolition of the Maori seats
OR
That the next National government will introduce legislation to be referred to
a Select Committee for submissions and hearings to abolish the Maori seats
in Parliament
And
That the National Party does not support any automatic representation for
Maori at the local government level.
Dissenting view by Denese Henare ONZM
I regret that I must disagree with the majority in respect to recommendation 4 for
the following reasons.
The Maori seats are a part of New Zealand’s constitutional framework. The principle
of "one person one vote all votes of equal value" is not breached by retention of the
Maori seats. In fact, the structure of the Maori seats following the Maori electoral
option is designed to ensure that all citizens have an equal say. Fundamentally, the
Maori seats enable a Maori voice to be expressed on specific issues such as land,
language and cultural values. It is not always possible for that voice to be so clearly
expressed in the general seats. Maori representatives from the Maori seats are
specifically mandated by Maori and accountable to Maori.
The Waitangi Tribunal reported in 1994 that the Maori seats are viewed by Maori as
an exercise, even if a limited one, of tino rangatiratanga guaranteed under the
Treaty of Waitangi. Although it is recognised that the Maori seats are not a
panacea for all the issues faced by Maori, nonetheless they serve as a statement to
express identity, survival, recognition and other complex elements viewed from the
particular context of Maori as an indigenous people.
In my view Maori will not support abolition of the Maori seats when there is a
prospect of change in the MMP voting system as a consequence of
Recommendation 2 of the Taskforce. Moreover, the Royal Commission on Electoral
Reform recognised that Maori interests had to be protected. Instead of having Maori
seats, they recommended that the proposed 4% threshold would not apply to Maori
parties. Whether there are Maori seats or removal of the threshold for Maori parties,
the special character of Maori representation received express recognition by the
Royal Commission.
The majority opinion suggests in part that under MMP Maori have been able to
achieve representation in accordance with the Maori percentage in the population.
However this has been achieved with the inclusion of the Maori seats. National has
made little contribution to this result, contributing only one Maori list MP. It is
therefore premature for National to be promoting abolition of the Maori seats while it
has so little representation.
If the next National government were to simply introduce legislation as
recommended in the alternative, then it would seek to remove an existing right
without the consent of Maori and in direct contravention of its long held policy. The
spectacle of the majority, through unilateral constitutional action, removing an
existing electoral right of a minority, is the kind of action that can cause a
fracturing of New Zealand society. Our constitutional arrangements are carefully
worked out on the basis of the majority respecting the minority. A policy that runs
roughshod over such arrangements is more likely to cause Maori to feel that they
are not part of the polity, rather than being a part of it. After 25 years of struggle
in contemporary times, originating in the 1975 land march, such a retrograde step
will achieve the direct opposite of what the proponents of this measure desire.
If legislation were introduced as recommended in the alternative, surely a
government would intend that such legislation be passed into law, notwithstanding
reference of the legislation to a Select Committee. This position is different from
1993 when the main topic of the legislation was the introduction of MMP. Abolition
of the Maori seats was only a part of that legislation.
There is no evidence to support the suggestion that the Maori seats are now
viewed as more divisive than in the past. Feelings are one thing, evidence to
support such feelings another. There has always been a section of opinion
supporting abolition of the Maori seats. However, the evidence in 1993 was
overwhelming support by Maori for the seats. Maori requested retention of the seats
notwithstanding the recommendation of the Royal Commission on the Electoral
System on MMP.
To summarise:
A recommendation to abolish the Maori seats having such significant constitutional
consequences is bound to cause controversy. It is therefore important that the
process leading to such recommendation takes account of the views of Maori in the
Party and key Maori focus groups. I regret it has not been possible to ascertain
these views.
It is also premature to consider any recommendation to abolish the Maori seats
when the implications of Recommendation 2 are uncertain.
While Maori experience the current disparities and whilst claims remain outstanding,
the seats provide a mechanism to enable a distinctive Maori political voice to be
heard. This is because Maori representatives from the Maori seats are specifically
mandated by Maori and accountable to Maori. This voice also needs to be heard on
aspirational issues such as land, Maori language and cultural values, all of which
have special protection under the Treaty of Waitangi. In my opinion, National’s
existing policy should remain.
The future of the Privy Council
The previous National Government introduced a Bill to Parliament to abolish appeals
to the Privy Council. It did not proceed because NZ First became a coalition partner
and did not support the measure. The task force agrees the time has come to
abolish appeals to the Privy Council. We acknowledge New Zealand is one of only a
small number of Commonwealth countries who retain such appeals. However there
was strong support within the task force for a two tiered appeal structure within
New Zealand above the High Court with a suggested Supreme Court on which
overseas Judges could be invited to sit.
Recommendation 5
That the National Party supports the abolition of appeals to the Privy Council
provided there is a two tiered appeal structure within New Zealand above the
High Court. The final Appellate Court would be the Supreme Court of New
Zealand on which overseas Judges would be invited to sit.
The place of the Treaty of Waitangi in the constitutional structure
This extremely complex topic was a difficult one for the task force. It clearly caused
policy committee members trouble too. We found it a challenge to fully grasp the
implications of referring to the Treaty in the preamble to the Constitution Act 1986
or indeed adopting it fully in that Act. Suffice to say there was a general feeling
that this matter should be deferred at this time as the courts and the Parliament
exercise their respective roles in the interpretation of the Treaty in the modern
world. Having said that there is no suggestion whatever that the Party move from
its present position that the Treaty is New Zealand's founding document.
Recommendation 6
That the National Party confirm its present policy position that while the
Treaty of Waitangi is New Zealand's founding document it is not proposed
that the Treaty be incorporated into the Constitution Act 1986 at this time.
The need for a written constitution
The task force detected little support for, and sometimes vehement opposition to,
any suggestion of a written constitution as that is generally understood. We agree
that little would be gained. If in the future the country becomes a republic it may
be then a time to consider formalising our constitutional statutes and conventions.
But that time is not now.
Recommendation 7
That the National Party at this time does not support the need for a written
constitution as that term is generally understood.
Final comments
There are no doubt other topics which could come under the general heading of
'constitutional arrangements' referred to in the terms of reference. The task force
believes however that the foregoing issues are the most crucial at this time.
Some of our recommendations will no doubt raise some eyebrows. Constitutional
matters rarely generate much political comment and almost never affect the
outcome of an election. For many people such issues are a complete mystery. Yet
few topics are more important. The task force acknowledges that there are clearly
major political risks in our recommendations. It will take considerable courage for the
Party to adopt them. But any progressive responsible political party must be seen to
be capable of dealing with difficult issues as they arise. We believe our
recommendations are forward looking, principled and appropriate.
April 2001
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