To achieve this TOP is calling for:
A written Constitution to protect the Kiwi way of life
An Upper House charged with providing parliament a learned and independent check on pending legislation, as well as a focus on upholding the Constitution.
The Constitution should cover rights as defined in our current Bill of Rights and Human Rights Act, or more specifically:
Individual freedoms, rights (including gender expression and sexuality, and religious rights so long as they don’t contravene other rights of the individual).
Rights of the child
In addition the Constitution needs to
Honour the Treaty of Waitangi
Grant rights to Nature – the right of our endemic ecosystems to exist and thrive
Protect the political independence of Public Service advice, and require transparency of government
Communities to have more say in the decisions that will affect them.
Honouring the Treaty without creating division. Rangatiratanga can be achieved by devolving decisions and giving Maori equal representation in the Upper House. Pakeha must understand our Treaty obligations and to achieve that Te Reo must be compulsory in schools.
Restoring a transparent and independent public service.
Ensuring citizens know their rights through civics education and strong public interest journalism. To fund this we will sell the commercial state owned enterprise TVNZ.
Protecting full participation against the ongoing threats from sector interest groups and the unbridled power that Cabinet wields are the main challenges. This is going to take a number of reforms, but the dividend is priceless – a democracy where the people feel they have a real say, where the government serves all citizens, and where intergenerational equity is respected. With these checks and balances in place we believe New Zealanders would be open to a four year parliamentary term.
1. The Data
Fewer and fewer people have confidence in our democracy. They simply don’t see voting as something that impacts on their lives. This is illustrated by the voter turnout.
In addition there’s a difference in the enthusiasm to vote between the age groups. The babyboomers are the most enthusiastic voters. In the 2014 election, 85% of eligible Baby Boomers or older voted (81% of that total cohort).
But for those under 50, only 70% of registered (or 51% of that total cohort) voted and it gets a lot lower for those under 30. For this cohort – weighed down by student debt and the prohibitive cost of getting on the first rung of the property ladder – only 62% of the registered (45% of the number of under 30’s) bothered to vote.
This alienation from the democratic process is not just a New Zealand phenomenon – right across the Western World, people are increasingly frustrated that their democracies are not serving them. There is even a significant difference in opinion on the value of keeping democracy between young and old. In the US 43% of oldies see it as illegitimate for the military to take over if the government is incompetent, yet only 19% of millennials feel like that. And in Europe the numbers were 53% and 36% respectively. The generation divide – wherein younger ones feel our so-called “democratic” government is not serving their interests – is stark.
Such a dichotomy between young and old can be seen from the following graph.
Percentage of people (identified by birth year) who believe it is “essential” to live in a democracy
In our view there are three issues to address;
the absence of an independent body that holds the government of the day to account on long term issues
not enough empowerment of communities and direct participation for voters
the lack of a well articulated and widely valued Constitution that makes it clear what all New Zealanders’ rights are
2. An Upper House
Correcting the concentration of power requires the resurrection of an Upper House that can consider legislation that parliament has passed and can ask it to reconsider, especially if it feels that constitutional rights are at risk. Typically in Western democracies the Upper House is not sovereign, it can only recommend, but in so doing it highlights to the public the risks that proposed legislation poses. That is, we find out before the damage is done.
New Zealand’s second chamber was abolished relatively recently (in 1950) and under our one House system we’ve seen the government of the day steadily moving power further and further away from parliament. Contrary to popular perception and what the constitution claims, parliament is no longer sovereign. Bringing New Zealand back to a two House system – which is the most common model internationally – will discourage the government of the day from cutting off debate on its legislative programme through measures such as urgency, supplementary order papers and closure motions.
Our view is that democracy in New Zealand has become authoritarian. In reality it’s the Executive or Cabinet that is sovereign nowadays, the other parliamentary members of the ruling party are simply voting fodder. The power of Cabinet to ramrod legislation through is without precedent in the Western world. There is no longer any sign of the “slow and steady forms that are necessary for good lawmaking” [i]
We have stripped layer after layer of safeguards away leaving us with virtually none of the checks and balances that prevent parliament legislating against the interests and possibly the constitutional rights of some members of our society. [ii]
Our government’s Cabinet is able to fast track policy through without check. Even US Presidents have nowhere near as much power as that – they need approval of both Houses to legislate.
While voters feel increasingly disenfranchised, so are ordinary MPs. Parliament has become little more than a place for ritualistic statements of position of Government and Opposition – nothing more. Then once that say is had, closure is called and the legislation is passed. There is no real debate any longer – no debate that actually amends the proposal.
An Upper House would in effect, restore the sovereignty of Parliament and take sovereignty back from the Executive. The question of membership of the Upper House is beyond this paper but suffice to say it must be via a very different process than election to Parliament. Perhaps a mix of appointed and elected members would work best with a term of office that is differentiated from the 3 year political cycle. The role of this body is to independently consider legislation.
Indeed with this additional check in place, New Zealanders may be willing to grant politicians a 4 year term and reduce the huge costs associated with constant electioneering. Encouraging longer term thinking would be no bad thing for parliamentarians.
3. Empowerment of People
While at a national level power has become more and more concentrated in the Cabinet, to the extent that parliament is pretty much neutered – there’s a strong case to suggest that the empowerment of citizens is also required if we are to rediscover our belief in democracy. There are three aspects to this process that we propose;
(a) Further devolution
The idea of community-led initiatives, that central and local governments facilitate and support, is one that is not just central to the Maori concept of rangatiratanga, but also finds support in the non-Maori world. The idea is that communities sort out what’s best for their interests and so long as their plans fit within an overall national framework, then regional or community variation is fine. Electricity trusts, school and health services (so long as national minimum standards are met) enable more participation by communities in self-determination. Such an approach would de-emphasise the influence from national politicians who often have no appreciation of community differences and certainly are not able to accommodate them in their decision-making.
The risk with devolution is definitely that it comes with higher costs (replication of resourcing). But what we have seen in New Zealand of late is an almost worst of all worlds – where responsibility is devolved but no resourcing is provided so small communities are incapable of exercising their mandates. The RMA, the freshwater guidelines, requirements for local bodies to comply with Treaty of Waitangi principles – are all examples of initiatives that some communities really struggle to fulfil competently.
So devolution is fine in theory but it must be adequately resourced otherwise it is little more than buck-passing by central government. And the result of that is that people are alienated from what nominally is a democratic, empowering process.
(b) Deliberative democracy
We also need to remodel the way we engage citizens in democracies. Modern technology means people are more suited to continuous interaction, and less suited to queuing up at a polling booth once every 3 years. There is also (thankfully) a blurring of traditional, tribal approaches to party alignment. The old two-party left-right ways are obsolete. This is a challenge to the current model, but opens the way for more thoughtful and deliberative democracy, if it is well designed.
If elected, TOP intends to make strong use of deliberative democracy such as collaborative software, participatory budgeting and citizen’s juries/assemblies. To walk the talk in the mean time, once our TOP 7 policies are released we will be trialling some of these deliberative democracy approaches amongst TOP members to determine our policy in areas where we don’t have a position. Our members have already given a strong signal that they would like the first cab off the ranks to be drug law reform.
Of course the problem with deliberative democracy, as we have seen with various referendums, is that the public is capable of choosing contradictory positions. In California for example people have voted for more spending on education as well as for tax cuts. You can’t run government that way, so more sophisticated methods are needed to ensure the public has a say but in a way that is informed. TOP is committed to learning from experiments overseas, such as in Taiwan, and developing models of deliberative democracy that work in the New Zealand context.
(c) Civics education
As well as getting a short, crisp Constitution in place, one that means something to everyone, introduction of civics education is a prerequisite for democracy reset. If New Zealanders aren’t acutely aware of their rights and, equally important, their duties – then we are vulnerable to the influence of elites that reflect the preferences of just one sector of society, not the whole. That education needs to begin in school, so that by the time they are entitled to vote, New Zealanders are acutely aware of their rights and will staunchly defend them.
Finally with all the above in place we see no reason why compulsory voting is not introduced, albeit with an option “None of the Above”.
4. The Importance of a Constitution
Why Do We Need One?
Because ordinary people want a central reference in plain English that summarises what the values of our community are.
What Should it Do?
Be a reference for all New Zealanders to identify with, take pride in, defend the principles of, and live our lives by. Necessarily it must be dynamic.
Is it primarily for Constitutional Lawyers?
You might think this given recent debate initiated by constitutional lawyers Sir Geoffrey Palmer and Andrew Butler. For sure law provides the skeleton and mechanics of how a constitution is defined and implemented. But the soul of a Constitution is the value set our citizenry holds dear. This comes first and has very little to do with the legal definitions of entities and due processes of government and the judiciary. India presents a plain English meaningful template – way more meaningful to citizens than the effort at a codified constitution from Palmer and Butler.
The seven fundamental rights recognized by the Indian constitution are:
Right to equality: Which includes equality before law, prohibition of discrimination on grounds of religion, race, caste, gender or place of birth, and equality of opportunity in matters of employment, abolition of untouchability and abolition of titles.
Right to freedom: Which includes freedom of speech and expression, assembly, association or union or cooperatives, movement, residence, and right to practice any profession or occupation (some of these rights are subject to security of the State, friendly relations with foreign countries, public order, decency or morality), right to life and liberty, protection in respect to conviction in offences and protection against arrest and detention in certain cases.
Right against exploitation: Which prohibits all forms of forced labour, child labour and traffic of human beings
Right to freedom of religion: Which includes freedom of conscience and free profession, practice, and propagation of religion, freedom to manage religious affairs, freedom from certain taxes and freedom from religious instructions in certain educational institutes.
Cultural and Educational rights: Preserve the right of any section of citizens to conserve their culture, language or script, and right of minorities to establish and administer educational institutions of their choice.
Right to constitutional remedies: Which is present for enforcement of Fundamental Rights.
Right to education: It is the latest addition to the fundamental rights
In forming a Constitution for New Zealand there’s an opportunity to include issues that are distinctly New Zealand – such as obligations under the Treaty of Waitangi, and the rights of Nature wherein ecosystems have the right to exist and flourish and government is required to remedy violations of this right. Given how important natural capital is to the New Zealand way of life, codifying the rights of Nature is well overdue. But central to ours will be the Bill of Rights and our Human Rights Act.
As with the Indian example above, the Constitution should cover all the individual and group freedoms that are protected, protections of the cultural, language and language rights of all ethnic groups, and of course the undertakings of both treaty signatories. We see scope for the rights of the child to be strengthened to cover equality of opportunity when it comes to healthcare, housing and education and we like the Brazilian approach wherein any advertising to children is seen as child abuse.
Taken together, this is a set of democratic rights that is unique to New Zealand. We all need to understand them, and our unique constitutional rights are what differentiates us, the New Zealanders. Constitutional rights should be part of our DNA and we should be immensely proud of them. Right now, most New Zealanders haven’t a clue what they even are.
Only this way can we prevent our rights from being run roughshod over by fast-tracking, political actors in future.
5. Role of the Treaty of Waitangi
The treaty is our founding document. It defines the relationship between the two societies that signed it, how they coexist in occupation of these lands and work together to ensure the aspiration of their members are fulfilled. The signatories are Maoridom and all subsequent settlers in New Zealand, as represented nowadays by the Government. Together the populations constitute the New Zealanders, one citizenry, albeit comprised these days of a multitude of ethnic groupings.
The treaty and its established principles is not that difficult to summarise – it establishes the Government as the ultimate authority (the Kawanatanga Principle) , with the right to govern, although that right is subject to conditions outlined in the other two clauses. Clause 3 (the Principle of Equality) acknowledges that every individual New Zealander has equal rights under the law. Clause 2 establishes that Maori (meaning Maori society) has the right to rangatiratanga (self determination), and has autonomous authority over all unsold natural resources and taonga (intangible cultural assets).
The principle that binds the Crown to active protection of the signatories and a duty to consult is known as the Principle of Cooperation while The Principle of Redress confirms that the Crown has a responsibility to provide a process to resolve grievances that arise from the Treaty.
To date Government has almost completed negotiating settlements with Maori over all historical treaty breaches. It remains uncertain as to how honouring the treaty will be achieved going forward, but in essence there is a duty of care required of both signatories to ensure the above principles are honoured. In general, Maori understand these principles, but Establishment party governments have avoided the challenge of communicating the process to the public. Many Pakeha remain unaware of their Treaty obligations.
TOP’s vision is to ensure Maori receive equally effective delivery of public services such as health, education and social welfare through the devolution of provision.
This is consistent with the principle of rangatiratanga as well as the obligation under Article 3. Devolution, rather than a centralised, homogeneous, one-size-fits-all delivery structure recognises there are significant differences between what’s appropriate delivery for Maori and the other treaty signatory.
So the parameters that define New Zealand’s democracy nowadays need to acknowledge the unique rights that Maori have in terms of the right for its society to be protected and its role in the determination of our country’s future.
This is another reason why it is sensible to establish an Upper House as a safeguard to ensure the House of Representatives executes its duties in a manner consistent with the defining principles of our democracy. It also suggests that that the Upper Chamber should unambiguously reflect the reality of the treaty; that it has two signatories who have a duty of care to one another. To that end each signatory must be represented in that Upper House so that in restoring the sovereignty of the Lower House, the Upper Chamber also protects the constitution.
Equipping citizens to respect the role of the Treaty
Honouring the Treaty of Waitangi plays a vital part of the democracy reset that TOP sees as vital to our future. One of the fair criticisms of the treaty breach and settlement process has been the lack of understanding of many non-Maori as to the rationale, the purpose and the limitation of that process. In particular there still prevails an urban myth that aligns with the fiscal envelope concept, and holding that after settlements end, the treaty becomes irrelevant.
Nothing could be further from the truth, In order to assist non-Maori New Zealanders appreciate fully the obligation the treaty requires on both signatories and what actually ‘honouring the treaty’ means, it is vital that young New Zealanders continue to grow up with a far stronger appreciation of its importance, than has been common in the past. It is to the credit of our education system that major efforts are being made in this regard through the schools. However, the treaty is of such importance that it behoves us to ensure that all New Zealanders feel that importance in their hearts, respect it and nurture the principles of the treaty.
New Zealand’s constitution is unique, the presence of the Treaty of Waitangi ensures it always will be.
To ensure New Zealanders forever empathise with our bicultural foundations and our multicultural reality, it is critical that the understanding all New Zealanders have of the treaty is clear and durable.
To that end, te reo Maori the other official language of our country needs to be afforded the same rights as English. That includes the requirement it be taught in all schools. Unless this step is taken the language will continue to be under-resourced, the connection between non-Maori New Zealanders and our cultural heritage will remain weak, the underestimation of the importance of the treaty will remain common amongst non-Maori – and most importantly we will simply not respect the duty of care that has been promised.
6. Restoring an Independent Media and Public Service
Media plays a crucial role in an informed democracy. With the shift to online media from print and television, advertising revenues have shrunk and largely been snaffled by large overseas corporates (which is another good reason to make sure they are taxed). Combined with heightened competition for the public’s attention, this has led to fewer resources being devoted to true public interest journalism.
TOP will sell TVNZ (which is now a commercial operation) and use the proceeds to set up a Public Journalism Fund as part of NZ on Air. The existing Platinum Fund money will be folded into this. RNZ will be able to compete for this funding alongside other platforms.
Finally, the public sector itself plays an important role in ensuring an informed public. While New Zealand has a good record with transparency and low public sector corruption, in recent years this has been slipping. There is an urgent need for more open and transparent government, starting with greater investment in open data, more independent evaluation of policies and a refreshed approach to official information.
While our economic policy (yet to be announced) seeks to rebalance the economic strength of firms, employees and consumers, doing the same with political power would make it incumbent upon governments to ensure the slide in voter participation is reversed, that voters have more reason to exercise their rights in our democratic system, and that our democracy makes parliament, not the Cabinet, sovereign. As well we would devolve decision-making to an extent that individuals and communities feel and are, sufficiently empowered to champion our democracy.