Opinion by Andi Cockroft, Chairman CORANZ
Inheriting the British governmental style, GodZone relies on “common law” as a backstop to judicial thinking. Common law acts as a precedent-setting set of decisions that are passed down over the years. We still have many common law “statutes” on our books from pre-colonial days.
Without a written constitution, it means that our highest law-making establishment, Parliament, can put down new laws that override centuries of common law at a single stroke.
Whereas places such as the US have a written constitution (amended over the past two centuries) that allows a supreme judiciary to overrule any law – or even an executive order – and strike it down. The constitution is paramount.
We witnessed over the past few US presidencies, the use of the executive order to achieve their policies and bypassing both the House and Senate. The only handbrake to that was the Supreme Court.
What we see now appearing in GodZone is hastily created legislation that either bypasses or basically ignores any form of public review. The Select Committee should be our process of ultimate scrutiny of any new legislation. But over the past two decades or more, the process has been diluted so much as to render it useless. Either the consultation time is so ridiculously short as to make it impossible for anyone to be heard, or any adverse submissions are simply ignored.
Now we see the proposed “fast-track” legislation, which if enacted will allow a group of politically (and possibly financially) motivated ministers to bypass all checks and balances we would otherwise expect.
Bypassing all existing legislation such as the Conservation Act, The Resource Management Act and heaven knows how many planning rules and regulations, projects that have the potential to produce incredible harm to society as well as nature can be green-lighted with no option to object.
Whilst I am no fan of a switch away from centuries of common law to a codified one in the form of a written constitution, I do find it somewhat repugnant that our long-standing legislation and common law are being bypassed in such an underhanded and cavalier manner.
With such a politically motivated judiciary, it is hard to see that a written constitution would benefit us much if judges weren’t prepared to do the honourable thing and enforce it.
Nonetheless, the current rush to launch the Fast-track Approvals Bill on an unsuspecting public will completely bypass any chance of future public consultation, leaving us completely unable to provide either opposition or support. Is that something we are happy to accept?
So, should we move to a written constitution? The jury may still be out on that one.
Parliament “Consultation” is a joke. The Select Committee process has become nothing more than a virtue-signalling exercise pretending to listen and then ignore public input. That is even if Consultation even takes place. A few years ago, the hastened firearms legislation following Tarrant’s attack drew thousands of submission and these were “reviewed” in less than 3 days but of course they didn’t fit the agenda so were ignored. Other Select Committee processes are similarly just flag-waving exercises. What’s the bet any “Consultation” on the Fast-Track Bill will likewise have a pre-determined outcome?
The problem is not whether we should have a written Constitution, but how can we arrive at a neutral, unbiased Judiciary?
We had one Court of final appeal via the Privy Council – that is until Helen Clark and her Government enacted the Supreme Court Act 2003. This was probably the most dramatic Constitutional change made since New Zealand was founded. And it was done with no Public Consultation whatsoever. The shear arrogance of that 2nd term Labour Government was to prove all the worse in their 3rd term.
The irony is not lost on me that Helen Clark was appointed to sit on the Privy Council as far back as 1990.
Of course that pesky Privy Council had to go. Overruling the best “Top” judges this Country had to offer was just not on!
We now have those judges whose decisions were regarded as second-rate by the Privy Council elevated to run our Supreme Court. What could possibly go wrong?
Select committees have become just a token nod to democracy and hearing the public’s views. You can glance at this and say it’s nothing to with trout, rivers, wilderness or whatever outdoor issue. But it is, every outdoor issue should be treated democratically with the people’s views of paramount importance. Face it, successive governments National or Labour or led by either have eroded the democratic rights of the people. Andi Cockroft’s opinion piece gets to the core of every political problem and threat.
ABSOLUTELY.
THE SOONER THE BETTER BUT ONLY VIA A
PUBLIC REFERENDA.
While politicians want to reform health, transport, local government or whatever, they don’t give a damn what the public view point is. Their past reforms from Max Bradford’s Electricity Reform, to Annette King’s health reforms, Hipkin’s education reforms have all been backward steps, often disastrous in NZ’s interests.
The Fast Track Approvals Bill represents a bully-like Shane Jones/Chris Bishop approach that politicians know best.
No way. Governments’s track record is littered with casualties. Any way that reins them in has to be worthwhile. This is a very good thoughtful article.
Successive Labour and National (Coalition) governments have avoided the word “Constitution” because they know that they will have to recognise the rights of Maori as guaranteed in the Treaty of Waitangi; rights that go well beyond the land settlements. To do so would bring every shade of prejudice out in the open; and all the conflict that could go with it. Every major party knows that they will alienate some of the core supporters in doing so. As a result sleeping dogs are left to lie. I think that the power and ego components of our current crop of M.P.s is the greatest hurdle.
I like Cockroft’s piece and its logic but feel that only a grand coalition involving at least both major parties could achieve it. Is that achievable? Well once the eminent people of the day thought that heavier than air planes would never fly.
Andi Cockroft’s comment is overdue.
John Key gave two fingers to NZ’s Constitutional Conventions with the Ecan Act in 2010 and was called out by the NZ Law Society Rule of Law Committee at that time.
This Coalition Government are repeating the affront to our democracy x 3.
What an awful reputation Shane Jones has built over the years; https://en.wikipedia.org/wiki/Shane_Jones.
This rooster is to be one of three Ministers tasked with Fast-track approvals?
God defend New Zealand!
Andi Cockroft has identified one of the major structural sources of environmental degradation in New Zealand. The lack of a proper constitution means every three to six years every new government can throw out existing laws and judicial precedents. This makes it impossible for New Zealand to make environmental progress. John Key realized this and used the Muldoon Think Big 2.0 template when he rammed through the ECan ‘temporary’ commissioners’ act and fired the democratically elected government of New Zealand’s second largest city. The fast-track bill is just another iteration. The Auditor General’s office has already warned the coalition government that this unconstitutional bill creates an unprecedented risk of conflict of interest, legal liability and a loss of New Zealand’s reputation as a stable democracy that honors basic human rights and international treaties. Allowing the dairy, mining or trawling industries to violated principles of democratic consultation, scientific evidence and transparent decision-making makes New Zealand look like a banana republic run by corrupt strongmen autocrats. Who–other than a dirty company seeking dirty politicians–would want to invest in such a country?