Why Treaty-based constitution 'a disaster for New Zealand'

A leading academic says it would be a disaster to adopt a written constitution incorporating the Treaty of Waitangi, something the Maori Party demands.

Canadian James Allan, who taught law in New Zealand for many years and is now the Garrick professor of law at the University of Queensland, says he would “run a mile from entrenching or incorporating the Treaty into any such instrument”.

“No one knows what it means when applied to any specific issue, so all you will be buying are the views of the top judges instead of your own, the voters.

“That’s not a trade I would ever make,” Prof Allan says in a paper he has just written for the New Zealand Centre for Political Research.

“The Treaty has little content in its few short paragraphs and talk of its ‘principles’ inherently involves a lot of ‘stuffing it full of latter day content that no one at the time imagined or intended.’

“And if, as is overwhelmingly likely, the top New Zealand judges adopt the same sort of ‘living tree’ interpretive approach that we see today in Canada, Europe, and among most or many of the top judges in the US and Australia, then there is absolutely no predicting in advance what may be imposed on Kiwis some time down the road.

“Remember, the words can stay exactly the same but their imputed meaning can change and alter as the top judges see fit.

“And you know what? The elected parliament won't be able to do anything about it.

It trumps parliament

“That’s the point of a written constitution. It trumps parliament, it overrides parliamentary sovereignty, it enervates democracy.

“Now that may be a good thing if you reckon you can get a more favourable deal out of a committee of ex-lawyer judges in Wellington than you can out of the democratic process.

“But for democrats like me it is an appalling prospect.”

Prof Allan wound up his paper for the NZCPR by taking a swipe at Prime Minister John Key and MMP.

“I’m not overly sure that Mr Key is all that reliable on these sort of issues.

“He seems to me, from over here across the Tasman, to be a man who courts popularity rather than standing up for what will benefit New Zealand in the long term.

“One of the most important issues in my mind for New Zealand had always been to rid the country of one of the world’s worst voting systems, MMP.

“Mr Key, by and large, stayed out of that debate, making a few perfunctory anti comments but doing little else.

“But if he thought MMP was holding back New Zealand’s ability to prosper in the modern world – as I do – then he should have taken the risk of getting actively involved. The result might have been different.

“I still worry about New Zealand’s prospects under this lousy voting system that puts the major political parties at the mercy of small ones that garner barely 1 in 20 of the votes, but who can use their ‘kingmaker’ status to demand all sorts of things – even a proposal to look at moving to a written constitution that locks in the Treaty.

“This is a terrible idea. It needs to be knocked back and I have my fingers crossed that you can all achieve that outcome.”

rvaughan@nbr.co.nz