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VUW/RNZ Speech to Waitangi Rua Rautau – Gareth Morgan

(29 Jan 2016)

VUW/RNZ Speech to Waitangi Rua Rautau – Gareth Morgan

Democracy Reset, Honouring the Treaty and Ensuring all New Zealanders are proud of our unique identity

Hello, thank you for the invitation to give one of the 2017 Rua Rautau lectures. It is an honour to follow in the footsteps of such esteemed company as have participated in this important event since 2003 – and of course a tremendous honour for me to share the stage with Dame Tariana Turia, a woman I have long admired not just for her resolve to better the position of Maori, but because of her bravery in the face of seemingly impossible political odds at times, and the eloquence with which she expresses her views. She is a national treasure as far as I’m concerned.

I also wish to thank Jeremy Waldron, professor of law and philosophy at New York University for his work on New Zealand’s democracy. I find his writings always illuminating and have drawn some of what follows from his work. Of course all errors remain mine and mine alone.

Ever since I embarked, along with my colleague Susan Guthrie on the project “Are We There Yet? The Future of the Treaty of Waitangi” in 2009, I feel I have grown as a New Zealander who has both an appreciation and some understanding of what the bicultural treaty between tangatawhenua and subsequent settlers actually means. Our democracy is indeed unique and for me having the Treaty at its centre is the most valuable element of that distinction, defining quite clearly who we, the New Zealanders, are.

But our democracy is in trouble and it is that subject that I want to address today, and especially to emphasise the role the Treaty must play in our democracy’s resurrection. I regard very much “honouring the Treaty” as central to getting our unique style of democracy back on the tracks.

But first to the need for a Democracy Reset. The evidence tells us that NZ citizens feel increasingly disempowered by our practice of democracy. Ever since the 1984 election of David Lange & Roger Douglas voter turnout has been falling; from 94% that year to 77% in the 2014 election. And it’s worse with younger voters. Only 62% of the registered Under 30’s voted last time – that’s only 45% of them in total.

It is ironic as the decisions politicians make, affect younger people the most –they have longer to live with the consequences.

This trend of disenchantment also shows up in academic work done internationally around how many people view democracy as essential. In NZ that has fallen from 70% in the 1930s to just 30% now. The support for democracy has fallen right across the Western World but not to the same extent. In Sweden for instance, the fall has been only from 80% to 60%. Some democracies in other words are doing better.

Thirdly and finally, while in the US 43% of oldies see it as illegitimate for the military to take over if the government is incompetent, only 19% of millennials feel like that. Such a dichotomy is scary in terms of what might follow if we do not take steps to make our democracy as strong as possible.

We’re all familiar with the post World War II, Winston Churchill quip of 1947,

“Democracy is the worst form of government, apart from all the others”.
But he also went on to say:

“The best argument against democracy is a five-minute conversation with the average voter.”This couplet eloquently highlights the need to protect democracy, but also to work assiduously in helping people value it and lift their understanding of political issues.  But as well we must remain vigilant about the limits of what it can achieve.

At the Opportunities Party we have been thinking about the alienation of more and more voters and how we might reverse that so our democracy extracts maximum support from the “average voter”.

Our policy is designed to address:
(i) the absence of a constitutional body that holds the government of the day to account
(ii) not enough empowerment being given communities or direct participation given to voters
(iii) the lack of a well articulated and widely valued Constitution that makes it clear what all New Zealanders’ rights are

An Upper House

Central to the voter alienation is the greater concentration of power, both beyond parliament (that is supposed to be sovereign) and amongst privileged elites in our society. I haven’t time here today to recite all the evidence of this in the NZ context but it will be made available in our Constitutional Reform policy to be released, February 7th.

Correcting this concentration of power requires the resurrection of an Upper House that can consider legislation that parliament has passed and can ask parliament 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 pose. It’s better 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 the parliamentary floor. 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 dysfunctional. 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 [to quote Walter Bagehot’s 1873 characterisation of the Westminister system] 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. Think of it – the US & AU have 2 houses at both Federal and every State level

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.

By being able to object to any legislation being proposed that is dodgy, an Upper House would in effect, restore the sovereignty of Parliament and take sovereignty back from Cabinet. 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. We don’t want a carbon copy. 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.

We may even save cost by reducing the size of parliament from 120 MPs by the same number of members of the Upper House.

 Empowerment of People

While at a national level power has become more and more concentrated in the Cabinet, there’s a strong case to suggest that the empowerment of citizens is also required if we are to revitalise our belief in democracy. There are four 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 would enable more participation by communities. Such an approach would de-emphasise the influence of 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 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) The power of your vote

I’m not convinced that a 90 year old should have the same power at the voting booth as a 20 year old. After all the 20 year old has 70 more years of consequences to endure from today’s political decisions, the 90 year old has only a couple.

We know where the voter alienation is – it’s amongst the poor and the young. The age-based alienation can be addressed and should be. With the bulge in the population’s age profile that the Babyboomer generation has caused for instance, there is plenty of evidence that politicians’ target their pork-barrelling to that age cohort. As we age and our remaining life years fall away, that bias against the bulk of the population will only get worse.

We would like a national debate initiated on whether we should introduce age-based weighting of votes and if so from what age voting power should start to taper off. The objective would clearly be to ensure no voting cohort has influence on politics that is beyond its likely contribution to society.

(c) 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. Under MMP the old two-party, left-right model ebbs and flows with minor parties achieving moments under the sun of policy determination, albeit fleeting. This challenges the left-right orthodoxy, but opens the way for more thoughtful and deliberative democracy, if it is well designed.

If elected, TOP intends to make a strong use of deliberative democracy such as collaborative software, participatory budgeting and citizen’s juries/assemblies.

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 and developing models of deliberative democracy that work in the New Zealand context.

(d) 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 the Democracy Reset that empowers people. 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. It’s this that gives the Upper House its real mandate.

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”.

The Importance of a Constitution

Why Do We Need One?

–          Because ordinary people want a central reference in plain English and te reo 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 that our citizenry holds dear. This comes first – the legal definitions of entities and designs of the due processes of government and the judiciary all flow from that mandate from the public. Not the other way around which is what concerns me most about the Palmer/Butler exercise.

–          India presents a plain English, meaningful template – way more meaningful to everyday folk than the effort at a codified constitution from Palmer and Butler.

The seven fundamental rights recognized by the Indian constitution are:

1.   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 untoucheability and abolition of titles.

2.   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 liberty, protection in respect to conviction in offences and protection against arrest and detention in certain cases.

3.   Right against exploitation: Which prohibits all forms of forced labour, child labour and traffic of human beings

4.   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.

5.   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.

6.   Right to constitutional remedies: Which is present for enforcement of Fundamental Rights.

7.   Right to education: It is the latest addition to the fundamental rights

It’s this type of communication that a Constitution must contain if the public are to identify with it – and it certainly doesn’t take the 40 pages Sir Geoffrey needed.

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. By being in the Constitution the 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. And I’ll talk more re the Treaty shortly.

But of course central to our Constitution will be the Bill of Rights and our Human Rights Act. As with the Indian example, 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. Taken together, this is a set of democratic rights that is unique to New Zealand. We all need to understand them, and appreciate that it is our unique constitutional rights that differentiate us, the New Zealanders – from whatever countries our ancestors originated.

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.

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 aspirations 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 negotiated 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 due to the negligence of previous Establishment parties communicating the process to the public, many Pakeha remain ignorant of their Treaty obligations.

Consistent with the principle of rangatiratanga as well as the obligation under Article 3 to ensure Maori have equal effective delivery of public services such as health, education and social security, is the goal of devolution of provision of such services so their delivery meets those needs effectively – rather than nominally only. This, 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 has in terms of the right for its society to be protected as well as its role in the determination of our country’s future.

This is another reason why the establishment of 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, is sensible. It also suggests that that Upper Chamber should unambiguously reflect the reality of the treaty, that it has two signatories who have a duty of care to one another, and each signatory must be represented in that Upper House so that in restoring the sovereignty of the Lower House, the Upper Chamber 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, 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.

To quote Nelson Mandela, when explaining why he had learnt Afrikaans, the language of his prison guards

“If you talk to a man in a language he understands, that goes to his head. If you talk to him in his language, that goes to his heart.”

And then when talking of the need for peoples sharing a land to have a full understanding of each other’s aspirations and perspective;

“Without language, one cannot talk to people and understand them; one cannot share their hopes and aspirations, grasp their history, appreciate their poetry, or savor their songs.” 

My dream would be that the two treaty signatories are equally represented in the Upper House which, while deferring to the sovereignty of parliament, the Lower House – has the ability to highlight to the public weaknesses in intended legislation, as well as the ability to refer to the Courts issues of constitutional breaches. With the Constitution including the principles of the treaty, this should ensure the interests of both tangatawhenua and the other societies that make up the “New Zealanders”, are protected and nurtured.

That dream would then enable the abolition of the Maori seats in parliament. Wouldn’t that be an achievement, no need for affirmative action in the House of Representatives to ensure the rights of Maori are represented because they are protected by the Constitution, it’s automatic?

Okay, okay it’s a dream, an aspiration. Until we can all swear, hand on heart that we are honouring the treaty however, and our Constitution and its legal safeguards guarantee that, it remains a dream and affirmative action will continue to be required. We are not there yet.

Thank you for your attention, there is much to be done to Reset Democracy but honouring the treaty, having a written constitution that reflects, while all the while raising the knowledge and empathy of all New Zealanders to the values that underpin our Constitution – all the while increasing the level of participation of the people – will I’m sure make a big difference.

[i]Walter Bagehot, “The English Constitution”, 1873 http://socserv2.socsci.mcmaster.ca/econ/ugcm/3ll3/bagehot/constitution.pdf

[ii]See speech by Professor Jeremy Waldron, “Parliamentary Recklessness”, 2008, https://vimeo.com/41447215

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