February 23rd 2002

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Articles from this issue:

COVER STORY: New Zealand's Economic U-Turn

Reality finally bites Democrats' leader

Family First rises, Democrats fall, in South Australia poll

2002 NCC National Conference - Building the Movement

Straws in the Wind: Andersen's Fairy Tales / Flying / Out of Africa

New Zealand to vote on new Constitution?

Bioethics: Cloning concerns must be addressed

Letters: "Booming" economy?

Letters: Politics to blame

Letters: Hot air

Letters: True ALP position

Media: Cross-media ownership laws / Negative coverage?

United States: Is the terrorist threat being politicised?

Economics: Privatisation - essential component of globalisation

Law: Abortion link to breast cancer victory

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New Zealand to vote on new Constitution?

by Peter Westmore

News Weekly, February 23, 2002

A major effort is under way to give New Zealand a new, written constitution. The NZ Parliament has approved an application for a petition proposed by the Constitutional Trust, which says, "Should New Zealand adopt a written constitution expressly vesting sovereignty in the people, and which protects fundamental human and civil rights?"

For complex historical reasons, New Zealand does not have a written constitution, such as that of the Commonwealth of Australia.

It has what has been described as "a constitutional framework" derived from a number of sources: legislation, conventions, rule of law, letters patent of the Governor General, and the 1840 Treaty of Waitangi.

New Zealand is a constitutional monarchy with the British monarch, represented by the Governor-General presiding as the head of state, and acting as the nominal source of all law.

New Zealand operates by virtue of a responsible and representative government, elected democratically, which establishes laws and advises the Crown.

A cornerstone of the system is the Rule of Law which, in essence, is a series of ideal principles, inherited from England, designed to protect citizens against arbitrary action by state authorities.

New Zealand’s government is based on the Westminster system inherited from England.

The closest document which New Zealand has to a constitution is the Constitution Act 1986, which brought together, in a single Act of Parliament, "certain provisions of constitutional significance", although without being exhaustive, and declared that several Acts of the Parliament of the UK "cease to have effect as part of the law of New Zealand".

However, this Act was not put to a vote of the people of New Zealand.

Additionally, the law of New Zealand is increasingly being affected by consideration of the Treaty of Waitangi, which was signed by the British colonial government and Maori chiefs in 1840, although the English and Maori versions of the Treaty are not exact translations of each other, have different meanings, and were signed by different Maori chiefs.

Acts of Parliament have, over the past 20 years, increasingly referred to the principles of the Treaty and incorporated express reference to it, although the Treaty has never been adopted in its entirety in any New Zealand Act.

To address these problems, the Constitution Trust is circulating a petition for a referendum to adopt a written constitution, vesting sovereignty in the people, rather than the Government, and explicitly asserting that the Government is responsible to the people.

To ensure the Government puts the question to a vote, the Trust must get the support of about 300,000 voters, a huge number in a country whose total population is about four million.

Surprisingly, some 4000 petitions were downloaded from the Trust’s web site (http://www. investigate magazine.com/constitution.htm) in the first eight weeks.

Ian Wishart, a New Zealand journalist who is heavily involved in the campaign, told News Weekly he was confident that the petition would succeed.

He said that although there was an entrenched bloc who support the continued role of the Treaty of Waitangi, there is a growing body of opinion that New Zealand cannot continue without a written constitution, with the people disempowered from the constitutional process, and dependent on a Treaty signed in 1840 between some Maori chiefs and Britain.

Many Maori people have been marginalised by the Treaty, because it gives particular role to Maori chiefs, rather than their people.

Responding to the widely held view that the Treaty’s guarantees to the Maori people had not been honoured, he said that the British Crown was responsible for the breaches. As Britain had obtained huge financial benefit from these breaches of the Treaty, it should pay compensation to the original owners of land which had been virtually confiscated.

"The Treaty of Waitangi is not a document on which to found a modern democratic nation," he said.

The process of writing a new constitution will be tortuous. If sufficient voters sign the petition, it will be put to a referendum, probably some time next year. If carried, detailed discussion will then take place on its provisions, which would then have to be carried by a subsequent referendum.

Among the provisions he would like to see in a new constitution is that it should be amendable only by popular vote, as in Australia, and that all Crown land, except public reserves and Queen’s Chain - a New Zealand term for publicly-owned land along the banks of rivers and the shores of lakes and the sea - should be returned to their last lawful owner.

  • Peter Westmore

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