Article Title:Constitutional Reform: When and How?
Category:Comment
Author or Credit:Craig Young
Published on:25th November 2015 - 05:35 pm
Published by:GayNZ.com
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Story ID:17585
Text:Although I'll reluctantly vote for change in the current national flag referendum, that piecemeal reform is nowhere near enough. I would prefer something far more substantive- a written constitution, such as an entrenched Bill of Rights. It tends to be frequently canvassed in introductory university classes in New Zealand law that our country has a fragile grasp on civil liberties and human rights. All it would take would be a suitably Machiavellian populist and authoritarian leader, and statutory safeguards such as the Official Information Act, Human Rights Act 1993 and Bill of Rights Act 1990 would be swept away. This would leave us with little substantive defence against a rapacious executive (Prime Minister) and subservient legislature (Parliament). While this is less likely under MMP than First Past the Post, MMP is an electoral system and is thus intended to rectify obstacles from FPP through a fairer, more proportional form of electoral representation. To offset the potentially "unbridled power" of a rapacious executive and legislature, an independent third arm of democratic representation is required- a strong judiciary that takes a proactive role in the interpretation of law, and which can undo manifestly unjust or unworkable legislation when it is necessary. Canada has a Charter of Rights and Freedoms for this purpose, and its broad-ended equality clause has been useful in prompting legislation for LGBT rights, although the Canadian Supreme Court fought several battles with the vanquished prior Conservative administration of Stephen Harper to insure that human rights were expanded and civil liberties were upheld. Unfortunately, while New Zealand has an unentrenched Bill of Rights Act 1990, parliamentary sovereignty and executive authority still prevail. Therefore, we could not use the Bill of Rights Act's equality clause to press for trans-inclusive anti-discrimination laws, or subsidised reassignment surgery, for example. What if that were to change? The question is, who would adopt it as a matter of statutory and constitutional reform, given that the current government is conservative when it comes to constitutional issues and Labour appears to be focused squarely on economic and fiscal management, as opposed to broader social and constitutional issues? There could be allies on either side of the political divide. For one thing, Peter Dunne of United Future has frequently expressed admiration for Britain's Liberal Democrats and one of the core policies of the latter is constitutional reform. Mr Dunne might welcome the opportunity to emphatically put his party's troubled past behind him and adopt the cause of an entrenched Bill of Rights or Charter of Rights and Freedoms here. The Greens might also welcome the opportunity to resurrect the banner of constitutional reform, in continuity with the late Rod Donald, one of its initial parliamentary caucus co-leaders. Of course, that would not need to be all that is accomplished. Ombudsman Dame Beverly Wakem is currently reviewing the operation of the Official Information Act 1982, meant to enforce government accountability and transparency. All too often today, 'commercial sensitivity' is cited as a reason to refuse access and unconscionable charges are made for copies of official documents in order to further frustrate it. One day, we may need it. It'd be interesting to track ministerial and advisory correspondence when it comes to transgender issues, for instance. The issue of republicanism comes up as well in this context. Like current Australian Prime Minister Malcolm Turnbull, I've mellowed into a 'soft republican.' I support an elected president as our head of state, but it's probably not worth canvassing the issue until Elizabeth II passes away. And she's an old queen now, who will turn ninety next year. However, a written constitution or entrenched Bill of Rights would be far less divisive. Recommended: Geoffrey Palmer:Unbridled Power: An Interpretation of New Zealand's Constitution and Government:Auckland: Oxford University Press: 1990. Craig Young - 25th November 2015    
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