Geoff Parker: The Real Constitutional Instability Is The Attempt To Rewrite New Zealand By Stealth

Writing for the University of Auckland, political theorist Stephen Winter warns of “short-sighted constitutional instability”, pointing to changes involving Treaty principles, Māori wards, electoral law and the Bill of Rights. He proposes stronger institutional safeguards, including a permanent constitutional select committee.

But this puts the cart before the horse. The far more fundamental question Winter does not adequately confront is:

Who authorised the transformation of New Zealand's constitutional arrangements in the first place?

For decades, governments, courts, academics and public institutions have progressively expanded the constitutional significance of the Treaty of Waitangi. Concepts such as “partnership”, “principles of the Treaty”, “co-governance”, “tino rangatiratanga” and “tikanga Māori” have acquired political and legal significance far beyond the actual words of the 1840 Treaty.

That is not constitutional stability.

It is constitutional change by accumulation.

Winter complains that Parliament has been changing constitutional arrangements without sufficiently recognising what it is doing. Yet the same criticism can be levelled at the institutions and intellectual movement that have spent decades expanding the Treaty from a historical agreement into something resembling a foundational constitutional compact.

The Treaty Principles Bill was not an attack on constitutionalism. It was an attempt to force the argument into the open.

And that is precisely why it generated such controversy.

The public was finally being asked to consider whether the Treaty should have an undefined and potentially expanding constitutional role in the government of New Zealand.

Parliament rejected the Bill. Fine. That is democracy.

But the answer cannot be to continue addressing similar constitutional questions through other legislation, policy, judicial interpretation or administrative practice while pretending that nothing fundamental is happening.

Winter himself acknowledges the problem. He notes that after the Treaty Principles Bill was defeated, subsequent legislation continued dealing with Treaty principles and constitutional questions.

That should concern anyone who believes constitutional change ought to have democratic legitimacy.

There is another uncomfortable issue.

Winter describes the Treaty Principles Bill as producing an enormous public reaction, with thousands making submissions and people joining marches and hui because they understood its constitutional consequences.

Exactly.

That public reaction demonstrated something important: New Zealanders are perfectly capable of engaging with constitutional questions when they are actually told what is at stake.

The answer therefore isn't necessarily another parliamentary committee.

It is democratic clarity.

If fundamental constitutional change is proposed, the public should be told plainly what is changing, what powers are being transferred, who gains those powers, who loses them and what the long-term consequences will be.

And if the proposal fundamentally changes the relationship between citizens and the state, it should not be smuggled through under the convenient label of “Treaty principles”.

There is a second problem with Winter's argument. He treats constitutional instability largely as a problem of process.

But process alone cannot resolve a disagreement over constitutional substance.

A standing constitutional committee could scrutinise legislation more carefully. It could produce reports, develop precedents and identify constitutional implications.

But it cannot answer the fundamental question:

Should New Zealand be governed as one democratic nation under one law, or should constitutional authority increasingly be divided according to ancestry and collective tribal status?

That is not a technical question for constitutional lawyers.

It is a question for New Zealanders.

New Zealand already has a constitutional principle of enormous importance: Parliament is elected by the people and accountable to them.

If we want to change that fundamental arrangement, then let's have the courage to say so.

Let's have a genuine constitutional convention. Let's put the competing visions before the public. Let's debate the Treaty texts, parliamentary sovereignty, individual rights, equal citizenship, Māori customary interests, judicial power and the role of international law.

And then, if fundamental change is proposed, let the people decide.

What New Zealand does not need is another layer of constitutional engineering carried out primarily by politicians, lawyers, academics and public institutions while ordinary citizens are expected to discover the consequences after the fact.

The real danger isn't that New Zealand talks too little about its constitution.

It is that we have allowed enormous constitutional questions to be decided without ever having the constitutional debate.

Stability will not come from creating another committee to manage an unresolved argument.

It will come from settling the argument honestly, openly and democratically.

One country. One Parliament. One law. Equal citizenship. And constitutional change decided by the people who live under it.

That would be a constitutional settlement worth defending.

Geoff Parker is a passionate advocate for equal rights and a colour blind society.