Reconstituting the Constitution pp 3-33 | Cite as
Building the Constitution: Debates; Assumptions; Developments 2000–2010
Abstract
In 2000, there was a conference on Building the Constitution. It focused on the constitution in the external world, constitutional development and form, the place of the Treaty of Waitangi, multiculturalism, the head of state, the cabinet, public service and subnational government, parliamentary reform, the roles of judges, and the pros and cons of having a written constitution. I analyse the debates and identify notable areas of agreement: constitutionalism must be respected; settling the Treaty’s constitutional status is essential; parliamentary government would continue; international and social dimensions are significant; republicanism is inevitable; the evolutionary and pragmatic tradition would prevail, as would constitutional codification; and democratic and appropriate change processes must be employed. However, I argue, apart from aspects of the Electoral Act 1993, there has been no agreement on how to change the constitution and who should be involved. This was illustrated by the constitutional events and statutes between 2000 and 2010, especially the passage of the Supreme Court Act 2003. New Zealanders must debate the legitimate, democratic means of constitutional change as well as the substantive issues.
Keywords
National Party Constitutional Status Constitutional Change Privy Council Constitutional IssueReferences
- Allen J (2000) No to a written constitution. In: James C (ed) Building the constitution. Institute of Policy Studies, Wellington, pp 391–396Google Scholar
- Boston J (2000) The public service under a changed constitution: must it change? In: James C (ed) Building the constitution. Institute of Policy Studies, Wellington, pp 308–316Google Scholar
- Boston J, Bullock D (2009) Experiments in executive government under MMP in New Zealand: contrasting approaches to multi-party governance. N Z J Public Int Law 7:39–75Google Scholar
- Caygill D (2000) Should Parliament be changed? In: James C (ed) Building the constitution. Institute of Policy Studies, Wellington, pp 337–342Google Scholar
- Chen M (2000) Organising the executive under a changed constitution: what should be included? In: James C (ed) Building the constitution. Institute of Policy Studies, Wellington, pp 289–297Google Scholar
- Church S, McLeay E (2003) The Parliamentary review of MMP in New Zealand. Representation 39:245–254CrossRefGoogle Scholar
- Clark H (undated) “Processes for Discussing Aspects of New Zealand’s Constitution”, Office of the Prime Minister. http://www.beehive.govt.nz/Documents/Files/NZ%20Constitution%20Cabinet%20paper.pdf. Accessed 19 November 2010
- Constitutional Arrangements Committee (2005) Report of the constitutional arrangements committee: inquiry to review New Zealand’s existing constitutional arrangements. August. New Zealand House of Representatives, WellingtonGoogle Scholar
- Cooke Lord of Thorndon (2000) The role of the judges. In: James C (ed) Building the constitution. Institute of Policy Studies, Wellington, pp 371–381Google Scholar
- Cullen M (2005) Parliament: supremacy over fundamental norms? N Z J Public Int Law 13:1–5Google Scholar
- Deane R (2000) Globalisation and constitutional development. In: James C (ed) Building the constitution. Institute of Policy Studies, Wellington, pp 112–117Google Scholar
- Durie E (2000a) The treaty in the constitution. In: James C (ed) Building the constitution. Institute of Policy Studies, Wellington, pp 201–204Google Scholar
- Durie M (2000b) A framework for considering constitutional change and the position of Maori in Aotearoa. In: James C (ed) Building the constitution. Institute of Policy Studies, Wellington, pp 414–426Google Scholar
- Eichelbaum T (2000) The Law School: recollections and thoughts for the future. Victoria University of Wellington Law Rev 21:47–54Google Scholar
- Elias S (2004) Advising on the Kiwi experience. The Dominion Post, 27 July: B5Google Scholar
- Elias S (2009) Blameless babes. Annual 2009 Shirley Smith Address, Wellington Branch of the New Zealand Law Society, Women-in-Law Committee. http://img2.scoop.co.nz/media/pdfs/0907/Shirley_Smith_2009_lectureBlameless_Babes9_July_2009.pdf . Accessed 19 November 2010
- Fletcher H (2000) Constraints and opportunities of the globalised economy. In: James C (ed) Building the constitution. Institute of Policy Studies, Wellington, pp 118–120Google Scholar
- Frame A (2000) Beware the architectural metaphor. In: James C (ed) Building the constitution. Institute of Policy Studies, Wellington, pp 426–433Google Scholar
- Geddis A (2007) Electoral law in New Zealand: practice and policy. LexisNexis, WellingtonGoogle Scholar
- Geddis A (2009) The legal status of political parties under MMP. N Z J Public Int Law 7:21–38Google Scholar
- Geddis A (2010) The electoral (finance reform and advance voting) amendment bill. Policy Q 6:3–7. http://ips.ac.nz/publications/files/d5e2a6825fc.pdf. 22 November 2010
- Graham D (2000) Here does sovereignty lie? In: James C (ed) Building the constitution. Institute of Policy Studies, Wellington, pp 193–195Google Scholar
- Hawke G (2000) Constraints and opportunities of the globalised economy. In: James C (ed) Building the constitution. Institute of Policy Studies, Wellington, pp 133–138Google Scholar
- Hayward J (2000) Who should be head of state? In: James C (ed) Building the constitution. Institute of Policy Studies, Wellington, pp 261–266Google Scholar
- Henare D (2000) Can or should the treaty be replaced? In: James C (ed) Building the constitution. Institute of Policy Studies, Wellington, pp 207–213Google Scholar
- Hodder J (2000) Limits to and constraints on writing down a constitution in a small society used to informality in its politics. In: James C (ed) Building the constitution. Institute of Policy Studies, Wellington, pp 434–436Google Scholar
- Jackson K (2000a) How should parliament be changed? In: James C (ed) Building the constitution. Institute of Policy Studies, Wellington, pp 343–348Google Scholar
- Jackson M (2000b) Where does sovereignty lie? In: James C (ed) Building the constitution. Institute of Policy Studies, Wellington, pp 196–200Google Scholar
- James C (2000a) Introduction. In: James C (ed) Building the Constitution. Institute of Policy Studies, Wellington, pp 1–33Google Scholar
- James C (ed) (2000b) Building the constitution. Institute of Policy Studies, WellingtonGoogle Scholar
- James C (2000c) Appendix I: the conference objective. In: James C (ed) Building the constitution. Institute of Policy Studies, Wellington, pp 439–443Google Scholar
- James C (2000d) The political history and framework since 1980. In: James C (ed) Building the constitution. Institute of Policy Studies, Wellington, pp 160–167Google Scholar
- James C (2004) Comment. The New Zealand Herald 29 April 2004. http://www.nzherald.co.nz/storyprint.cfm?storyID=3541461. Accessed 29 May 2004
- James C (2008) Take me to your leaders: the constitution in 2033. Lecture presented on 9 September 2008 at the future maker or future taker lecture series to mark the 25th anniversary of the Institute of Policy Studies, Victoria University of Wellington. http://www.colinjames.co.nz/speeches_briefings/IPS_constitution_08Sep09.htm. Accessed 7 July 2010
- Jansen R (2000) Local government and the power of general competence. In: James C (ed) Building the constitution. Institute of Policy Studies, Wellington, pp 325–333Google Scholar
- Joseph P (2000) The legal history and framework of the constitution. In: James C (ed) Building the constitution. Institute of Policy Studies, Wellington, pp 168–181Google Scholar
- Justice and Electoral Committee (2003) Report on the Supreme Court bill. New Zealand House of Representatives, WellingtonGoogle Scholar
- Kelsey J (2000) Constraints and opportunities of the globalised economy. In: James C (ed) Building the constitution. Institute of Policy Studies, Wellington, pp 121–127Google Scholar
- Ladley A (2000) Who should be head of state? In: James C (ed) Building the constitution. Institute of Policy Studies, Wellington, pp 267–275Google Scholar
- Macdonald C (2000) What constitutes our nation? How do we express ourselves?’ In: James C (ed), Building the constitution. Institute of Policy Studies, Wellington, pp 81–87Google Scholar
- Manhire B (2000) Inspiring words, two themes and a wee touch of the mongrel. In: James C (ed) Building the constitution. Institute of Policy Studies, Wellington, pp 77–80Google Scholar
- Mansfield B (2000) The constraints of treaties and international trade. In: James C (ed) Building the constitution. Institute of Policy Studies, Wellington, pp 105–111Google Scholar
- Māori Committee to the Law Commission (1995) Appeals to the Privy council: discussion paper on behalf of the Māori Committee to the Law Commission. In: Boston J, Levine S, McLeay E, Roberts NS (eds) Electoral and constitutional change in New Zealand: an MMP source book. The Dunmore Press, Palmerston North, pp 449–458Google Scholar
- Māori Party (2008) Relationship and confidence and supply agreement between the National Party and the Māori Party. http://www.maoriparty.org/index.php?pag=cms&id=153&p=national-party-and-the-māori-party-agreement.html. Accessed 19 November 2010
- McGee D (2000) Should Parliament be changed? In: James C (ed) Building the constitution. Institute of Policy Studies, Wellington, pp 349–357Google Scholar
- McGee D (2009) Constitutional conventions. In: Francis M, Tully J (eds) In the public interest: essays in honour of Professor Keith Jackson. Canterbury University Press, Christchurch, pp 76–92Google Scholar
- McGrath J (1994) Appeals to the Privy Council: report of the Solicitor-General to the Cabinet Strategy Committee on issues of termination and court structure. In: Boston J, Levine S, McLeay E, Roberts NS (eds) Electoral and constitutional change in New Zealand: an MMP source book. The Dunmore Press, Palmerston North, pp 434–449Google Scholar
- McLean J (2000) Making more (or less) of binding referenda and citizens-initiated referenda. In: James C (ed) Building the constitution. Institute of Policy Studies, Wellington, pp 364–368Google Scholar
- McLeay E (2000) Organising the executive under a changed constitution: the cabinet. In: James C (ed) Building the constitution. Institute of Policy Studies, Wellington, pp 298–307Google Scholar
- McLeay E (2004) The dynamics of constitutional change: the New Zealand case. Paper delivered at the annual conference, Canadian Political Science Association, University of Manitoba, Winnipeg, Canada, 3–5 JuneGoogle Scholar
- MMP Review Committee (2001) Report of the MMP Review Committee: inquiry into the review of MMP. New Zealand House of Representatives, WellingtonGoogle Scholar
- Moloney P (2006) New Zealand’s ideological tradition. In: Miller R (ed) New Zealand government and politics, 5th edn. Oxford University Press, Melbourne, pp 36–46Google Scholar
- Mulgan R (2000) The electoral system: have we got it right? In: James C (ed) Building the constitution. Institute of Policy Studies, Wellington, pp 358–363Google Scholar
- New Zealand Labour Party (2002), “Constitutional Policy”. At: http://www.labour.org.nz/policy/law_and_order/law_policy_2002/index.html. Accessed 29 April 2004
- Oliver WH (2000) Political history and framework. In: James C (ed) Building the constitution. Institute of Policy Studies, Wellington, pp 155–159Google Scholar
- Palmer G (1992) New Zealand’s constitution in crisis: reforming our political system. John McIndoe, DunedinGoogle Scholar
- Palmer G (2000) The legal framework of the constitution. In: James C (ed) Building the constitution. Institute of Policy Studies, Wellington, pp 182–190Google Scholar
- Palmer G, Palmer M (2004) Bridled power: New Zealand’s constitution and government, 4th edn. Oxford University Press, MelbourneGoogle Scholar
- Palmer MSR (2007) New Zealand’s constitutional culture. New Zealand Univ Law Rev 22:565–597Google Scholar
- Parliamentary Library (2003) New Zealand’s link with the Privy Council and the proposed Supreme Court. Background Note 2003/02. New Zealand House of Representatives, WellingtonGoogle Scholar
- Pereira T (for the Pacific People’s Caucus) (2000) What do Pacific Islanders need and aspire to? In: James C (ed), Building the constitution. Institute of Policy Studies, Wellington, pp 232–239Google Scholar
- Phillips J (2000) The constitution and independent nationhood. In: James C (ed) Building the constitution. Institute of Policy Studies, Wellington, pp 69–76Google Scholar
- Pool I (2000) “Political Arithmetick” and constitutional concerns: how New Zealand society will change. In: James C (ed) Building the constitution. Institute of Policy Studies, Wellington, pp 221–231Google Scholar
- Prebble M (2010) With respect: Parliamentarians, officials, and judges too. Institute of Policy Studies. Victoria University of Wellington, WellingtonGoogle Scholar
- Reeves P (2000) Opening remarks. In: James C (ed) Building the constitution. Institute of Policy Studies, Wellington, pp 41–43Google Scholar
- Rhodes RAW, Wanna J, Weller P (2009) Comparing Westminster. Oxford University Press, OxfordCrossRefGoogle Scholar
- Rishworth P (2000) The rights debate: can we, should we, adopt a written constitution including a bill of rights? In: James C (ed) Building the constitution. Institute of Policy Studies, Wellington, pp 397–413Google Scholar
- Royal Commission on the Courts (1994) Excerpts from the Report of the Royal Commission on the Courts (1978). In: Boston J, Levine S, McLeay E, Roberts NS (eds) Electoral and constitutional change in New Zealand: an MMP source book. The Dunmore Press, Palmerston North, pp 421–434Google Scholar
- Saunders C (2000) The Australian experience: lessons, pointers and pitfalls. In: James C (ed) Building the constitution. Institute of Policy Studies, Wellington, pp 276–285Google Scholar
- Scott G, Barker G (2000) Some constitutional implications of managing international influences. In: James C (ed) Building the constitution. Institute of Policy Studies, Wellington, pp 139–143Google Scholar
- Scott KJ (1962) The New Zealand constitution. Oxford University Press, OxfordGoogle Scholar
- Sharp A (2006) Constitutionalism. In: Miller R (ed) New Zealand government and politics, 5th edn. Oxford University Press, Melbourne, pp 103–114Google Scholar
- Simpson A (1998) (ed) The constitutional implications of MMP. Occasional Publication No. 9, School of Political Science and International Relations, Victoria University of WellingtonGoogle Scholar
- Spoonley P (2000) National integration and cultural diversity. In: James C (ed) Building the constitution. Institute of Policy Studies, Wellington, pp 239–243Google Scholar
- Stigley S (2000) Local government’s growing importance in the constitution. In: James C (ed) Building the constitution. Institute of Policy Studies, Wellington, pp 317–324Google Scholar
- Sundakov A (2000) Globalisation and constitutional development. In: James C (ed) Building the constitution. Institute of Policy Studies, Wellington, pp 128–132Google Scholar
- Sykes A (2000) Te Tiriti o Waitangi: a vision of respect of civilisations and cultures. In: James C (ed) Building the constitution. Institute of Policy Studies, Wellington, pp 144–152Google Scholar
- Taggart M (2000) What role for judges? In: James C (ed) Building the constitution. Institute of Policy Studies, Wellington, pp 382–387Google Scholar
- Temple P (2000) What are our myths? In: James C (ed) Building the constitution. Institute of Policy Studies, Wellington, pp 98–101Google Scholar
- Thomas EW (2000) Centennial lecture. The relationship of Parliament and the courts: a tentative thought or two for the new millennium. Victoria Univ Wellington Law Rev 31:5–36Google Scholar
- Tiffen R (2009) Irate Power tells chief justice to butt out of policy. The New Zealand Herald, 17 JulyGoogle Scholar
- Tunah H (2003) Privy Council on way out – by 6 votes. The New Zealand Herald, 8 OctoberGoogle Scholar
- Vasil R (2000) Indigenous rights and the constitution. In: James C (ed) Building the constitution. Institute of Policy Studies, Wellington, pp 214–218Google Scholar
- Wickliffe C (2000) Multiculturalism and the constitution – lessons from another country: Fiji. In: James C (ed) Building the constitution. Institute of Policy Studies, Wellington, pp 244–258Google Scholar
- Williams M (2000) Myths of nature and virtue. In: James C (ed) Building the constitution. Institute of Policy Studies, Wellington, pp 88–97Google Scholar
- Wilson M (2000) Discussion paper: reshaping New Zealand’s appeal structure. Office of the Attorney General and Crown Law Office, Wellington. http://www.crownlaw.govt.nz/uploads/PCDiscuss.pdf. Accessed 23 November 2010
- Wilson M (2002) The Supreme Court bill. http://www.labour.org.nz/policy/law_and_order/supreme_court_bill/index.html. Accessed 29 April 2004
- Winiata W (2000) How can or should the treaty be reflected in institutional design? In: James C (ed) Building the constitution. Institute of Policy Studies, Wellington, pp 205–206Google Scholar