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Change NZ’s constitution this way? Give me a break

By James Allan - posted Thursday, 23 June 2022

A few years back the Ardern government in New Zealand commissioned a report. When it appeared its English name was "The 2019 Report of the Working Group on a Plan to Realise the UN Declaration on the Rights of Indigenous Peoples in Aotearoa/New Zealand".

The authors also gave their working group report a name in the Maori language, namely He Puapua. And on the very first page they define this phrase. They say it means "a break", usually in the waves. Then they go on to say, all still in the preface, that the reference here is to breaking "the usual political and societal norms … [and hope their report will lead to a breakthrough for changing the constitution]."

I was recently approached by the think tank Democracy Action to write a responding report. I was to give an analysis of this He Puapua call for constitutional change in New Zealand. I will be speaking this week in New Zealand about my reply to this He Puapua report. And the gist of what I will be saying is that when you read He Puapua you soon realise it is a very radical report, pretty much what you might expect from a Maori Studies department in one (meaning any) of today's left-leaning universities.


In general terms this He Puapua report trades in group rights thinking. Identity politics assumptions are pervasive. It also strongly pushes a sort of "co-governance" or partnership model of governing. Now you can somewhat disguise the underlying of what you are pushing when you deal in happy talk about "a partnership", especially if someone is strumming Kumbaya in the background. But at the heart of all "co-governance" models is race-based or ethnic-based identity politics, in this instance one where one group represents about 15 per cent of the population and the other everyone else. Nothing about that sort of model is particularly liberal.

Nor do I think there is much attractive about implicitly abandoning equality concerns (which focus on the individual) for equity concerns (which deal in group and statistical thinking).

Alarmingly, despite protestations by NZ's current Labour government that the report is neither policy nor an approved plan, its recommendations are being implemented under the guise of various justifications but never overtly confirming the driving force of UNDRIP or He Puapua.

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This realisation of UNDRIP, for New Zealand, has seen the creation of a separate Maori Health Authority, changes to electoral representation at local government level, reclassification of conservation land to provide iwi control, and most recently the transfer of control of drinking, waste and storm water to a 50 per cent co-governance model.


The government is planning the transfer of control of drinking, waste and storm water to a 50 per cent co-governance model. Picture: iStock

The subtle shift that is having the greatest impact is the language of Treaty of Waitangi discussions now referring to a guarantee of equity rather than simply equal rights. In a grievance settlement environment the distinction is significant.

Then there is the fact that this He Puapua report nowhere defines or tells us how it will be determined who gets to be in the "Maori" group. Will it be a genetic or blood test? Will some tribal elite decide? Will it collapse into a self-identification test? Surely this is a crucial matter for anyone pushing the co-governance barrow.

One of the things that really bugged me about this report was the way in which it shamelessly elevated international law to the same level – heck, to a higher level – than the domestic law of New Zealand. Now let's be clear about this. Any statute passed in New Zealand or here in Australia has incredibly high democratic credentials. Every citizen counts the same and votes for an elected representative and those elected MPs vote to pass statutes, or not.

International law, by comparison, barely has a single democratic bone in its body. Take treaties and conventions, because customary international law is even more illegitimate in democratic terms. Americans take these seriously. There they need to pass a two-thirds, super-majoritarian vote in the Senate.

The report elevates international law to a higher level than domestic law as implemented by the NZ parliament. Picture: Getty Images.

Compare that to the Westminster world that includes Canada, Britain, Australia and New Zealand. All treaties are entered into under the prerogative power. What's that? In simple terms this is the leftover executive power of the monarch, what remained in the centuries long, non-linear battle between the monarch and the parliament. Today this prerogative power is exercised by the cabinet and prime minister. If a prime minister decides to enter into some treaty, and he or she can make cabinet fall in line, that's it. There is no veto or gainsaying by parliament.

The same goes for any UN declaration – which to be clear does not even have the status of a treaty or convention. I do not go too far out on a limb to say the democratic warrant or credentials of this or any UN declaration, or even of any treaty or convention entered into under the prerogative power, is massively below that of basically any statute.

Yet this UN declaration with these enervated, emasculated, second-rate democratic credentials is what the authors of He Puapua hang their hat on. It is one of the key foundations of their entire building. Let me be blunt. The legitimacy of this sort of foundation is so meagre and exiguous that it's close to laughable.

Let me finish by reminding people that New Zealand's unwritten constitution anchored in parliamentary sovereignty is one of the world's most successful setups. It has stood the test of time. Remember, it is the current constitutional model that saw New Zealand be the first country in the world to grant women the vote. It was the model that saw four electorates or constituencies specifically set aside for MÄÂÂori way back in 1867. It was the same unwritten Kiwi constitutional model that saw New Zealand be the first country in the democratic world to bring in social democratic laws in the early decades of the twentieth-century. The list goes on.

Yet it is that that parliamentary sovereignty model, the world's most democratic, that the He Puapua report wants to overturn, and to overturn or rewrite in favour of one in which the Treaty of Waitangi and a UN declaration (not even a treaty or a convention but a declaration) are wedged into some sort of European-style written constitution with strong judicial review at its heart which will inevitably make a committee of unelected top judges immensely more powerful. There are myriad other problems with the report but that is the gist of the matter, as I shall be arguing this week.


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This article was first published in The Australian.

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About the Author

James Allan is Garrick Professor of Law at the University of Queensland.

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