He WhakaaroConstitutional Change Talks

Opinion nā Tom Bennion

Changes to the New Zealand constitution require a bare majority vote in Parliament. This highlights the great flexibility but also vulnerability of our constitution.

Some time in 2013, assuming the political landscape does not change too much, there will be a referendum in Australia. It will ask Australians to include into their constitution a new provision:

“Section 51A Recognition of Aboriginal and Torres Strait Islander peoples

Recognising that the continent and its islands now known as Australia were first occupied by Aboriginal and Torres Strait Islander peoples;

Acknowledging the continuing relationship of Aboriginal and Torres Strait Islander peoples with their traditional lands and waters;

Respecting the continuing cultures, languages and heritage of Aboriginal and Torres Strait Islander peoples;

Acknowledging the need to secure the advancement of Aboriginal and Torres Strait Islander peoples;

The Parliament shall, subject to this Constitution, have power to make laws for the peace, order and good government of the Commonwealth with respect to Aboriginal and Torres Strait Islander peoples.”

It would also ask whether Australians wish to include provisions that outlaw discrimination in law on the basis of race (except laws to overcome disadvantage, ameliorating the effects of past discrimination, or protecting the cultures, languages or heritage of any group) and recognise the Aboriginal and Torres Strait Islander languages as “the original Australian languages, a part of our national heritage”.

These changes have been suggested by the Expert Panel on Constitutional Recognition of Indigenous Australians in their report titled: Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution. The panel soberly notes these changes will be important in part because “the sovereignty of the Commonwealth of Australia … does not depend on any act of original or confirmatory acquiescence by or on behalf of Aboriginal and Torres Strait Islander peoples …. the basis of settlement of Australia is and always has been, ultimately, the exertion of force by and on behalf of the British arrivals.”

In 2014, assuming again the political landscape does not change too much here, there will be a referendum about the constitution in New Zealand. We don’t know what the questions will be. A government committee is still working on them. Deputy Prime Minister Bill English and Māori Affairs Minister Dr Pita Sharples are leading a group of MPs looking at constitutional change. They are supported by an advisory panel of experts, chaired by Professor John Burrows and
Tā Tipene O’Regan, with 10 other members including political commentators and constitutional experts. The group is looking at a number of issues, including the place of the Treaty of Waitangi within New Zealand’s constitutional arrangements, the Māori seats, and whether we need a written constitution.

Shortly, an “Information and Education Programme” and a “Public Discussion Programme” will begin. The advisory panel is to deliver its recommendations to the government in September 2013. The ministers are to report to Cabinet by the end of 2013. The government is expected to respond no less than six months later, in time for a referendum in the 2014 election.

The close timing of these exercises between the two countries has a curious historical resonance.

In 1891, when the Australian constitution was being drafted, New Zealand was being considered as a potential member of an Australasian nation–state. Because of racist fears about new immigrant communities in Australia, the draft Constitution Bill of 1891 included a power to make racially discriminatory laws; thoughtfully adding however that such power “shall not extend to authorise legislation with respect to the aboriginal native race in Australia and the Māori race in New Zealand.”

In Australia, if the amendments are approved, they become part of that country’s written constitution which is “supreme law”. That is, no laws can be made which are inconsistent with it, and the courts can strike down any such laws.

In New Zealand, our Parliament is under no such restrictions. Its ability to make laws is fettered only by the extent of international and domestic outrage it is prepared to weather. Our courts cannot strike down laws, no matter how egregious a law may be. The Foreshore and Seabed Act 2004, which nationalised the foreshore and seabed to the Crown, and without any right of compensation to potential Māori claimants, is an example of that.

At the very least, it is to be hoped that the panel and ministers will recommend some entrenched law preventing the kind of discrimination that occurred in the 2004 Act.

In Australia, getting a vote in favour of these changes to the written constitution that is supreme law will be tough, since the process, provided for in the constitution, requires majorities in both Houses of Parliament, as well as majorities in a majority of the states and territories, and a nationwide majority.

Ironically, changes to the New Zealand constitution require a bare majority vote in Parliament. This highlights the great flexibility but also vulnerability of our constitution.

For both countries, these processes indicate that there are foundational constitutional issues that remain unresolved.