Time to revisit our constitutional arrangements

The recent COVID19 emergency and the pressure it put on our civil and human liberties has got me thinking. The response, which has been internationally applauded on one hand was very well done, and true to our legal framework, when the circumstances no longer permitted them to be activated, organizations such as Civil Defence wound down accordingly. But how much trust should we place on a legal framework that in my opinion is not sufficiently codified?

Now, considering that it is election time and I feel that New Zealand needs to begin the process of overhauling that framework, I revisit the issue. My concern that it is time to revisit the issue stems from an increasingly unstable international community, constant challenges to national security, but also some basic questions regarding a national constitution.

To be clear I am not advocating for unilateral overhaul. Unilateral overhaul of the constitutional framework would be damaging for New Zealand. It would almost certainly involve some kind of breach of existing legislation and affect our obligations to the Treaty of Waitangi. Without an all-of-Parliament contribution to the process, New Zealanders will think that one party or another has hijacked the issue and is using it for their own purposes. It might engender permanent public distrust of constitutional arrangements, thereby ending any future attempt, however necessary it might be, to resume work on them.

So, the first step to get the confidence of New Zealanders, is to ask citizens and permanent residents point blank, what they want. The appropriate method is send this to a binding referendum first that asks the question “Should New Zealand adopt a formal Constitution? YES/NO”. In doing so, I accept that this is where the issue might well stop completely for the foreseeable future as a simple majority vote (e.g. 51% to 49%)is not going to be sufficient. To this end I propose that a recommended majority of 66% be necessary to permit the next step to go ahead.

If the answer is yes (66% or more), that New Zealanders DO want a Constitution, a cross party panel chaired by a former Supreme Court judge would need to be established. I say a former Supreme Court judge because the New Zealand Parliament should not be entrusted with it, and a sitting Supreme Court judge would have to recuse themselves from their judicial responsibilities.

Elsewhere I have alluded to the process that I think New Zealand would need to go through to achieve this substantial undertaking, but what sort of topic areas would we want covered in a formal Constitution? I have some thoughts below:

  • Impeachment process for removing officials who are not fit to hold the office to which they have been elected or appointed to
  • Powers of the Governor General
  • Protection of the existing acts, such as the 1986 Constitution Act, Human Rights Act 1993, Bill of Rights Act 1990 among others
  • Do we have a bi-cameral Parliamentary arrangement with an upper and lower house
  • Checks and balances controlling the ability of the Government of the day to declare war, sign treaties or trade agreements without having sent them to Parliament first
  • Where will the Treaty of Waitangi fit in amongst all of this?

If the answer is no (65% or less), that New Zealanders DO NOT want Constitution, then legislation needs to be passed. That legislation provides for the issue being revisited at some point, and sets down the process that would be followed to enable a future revisitation.

This is not a minor exercise and its undertaking will take several years. But it cannot be rushed and the country must be on board in terms of support. How well that will happen will depend on how the Government and the Opposition engage “We the people…”.

Data leak shows contempt for patient privacy

The career of a Member of Parliament may be over after admitting to receiving and sharing information about COVID19 patients with the media. Clutha-Southland Member of Parliament Hamish Walker has admitted receiving information from former National Party President and – now – former Acting Chief Executive of the Auckland Rescue Helicopter Trust, Michelle Boag.

I as a politics following New Zealander have heard of some dumb stuff happening in the New Zealand Parliament. However the announcement yesterday that a former Party President passed on private information relating to COVID19 patients to a National Party M.P., who then disclosed them to the media is right there with the worst. The stupidity of this is quite extraordinary. A former National Party President and a sitting Member of Parliament havet torpedoed their careers and brought potentially massive shame onto National as a party.

As there was knowing leakage of private information that did not have the consent of the person whose privacy had been breached, it is very likely that New Zealand privacy law has been broken. The Privacy Commissioner believes that the acts are indefensible, saying that people have a right to expect their information is kept private and not circulated among those with no legal necessity to know. As a result I believe the New Zealand Police should investigate Mr Walker and Ms Boag.

In Mr Walker’s case, his actions, coming just days after he made a comment about New Zealanders returning from overseas that was widely construed as racist, have made his tenure as a Member of Parliament untenable. For the purpose of not bringing Clutha-Southland as an electorate and Parliament as a democratically elected institution, in which New Zealanders place a lot of stock, Mr Walker must resign from Parliament.

Ms Boag’s reputation as C.E.O. of a medical N.G.O. Auckland Rescue Helicopter Trust is in tatters too as a result of her decision to pass on the details to Mr Walker. She has since resigned from her job.

But the consequences might not stop there. I have already stated that I believe the Police should investigate both of them. If for no other reason than to establish what Mr Walker and Ms Boag did, a criminal investigation should be launched. The prospect of criminal charges being brought against one or both of them is very real and would be widely supported by the New Zealand public.

For National, coming on top of Michael Woodhouse’s claim that a homeless man managed to talk his way into a COVID19 quarantine facility, this is hugely damaging to their credibility. To come in an election year with the election 10 1/2 weeks away and the Government riding high in the polls, is the last thing leader Todd Muller or the National Party Board needed.

For the Government, this is a chance to make more political hay. It will also be encouraging for the supporters of National’s rivals in Clutha-Southland. Although I don’t expect National to lose the seat – it would be kind of like Christchurch East going to National – leakage of party votes to other parties there is almost a certainty.

Is New Zealand First about to be subject of Serious Fraud Office announcement?

Minister for Fisheries Stuart Nash has apologized to New Zealand First leader Winston Peters and New Zealand First Member of Parliament Shane Jones for comments made in a telephone call, which aired on television two nights ago. But as this apology goes to air, New Zealand First are facing the prospect of a potential Serious Fraud Office announcement, following revelations that Talleys Fisheries organized two New Zealand First fundraisers.

Perhaps this is related to another suspected fire onboard the good ship New Zealand First. For months there have been concerns about a New Zealand First Foundation, which Talleys has made donations totalling at least $27,000 to. The donations themselves, I should be clear now are not the problem. The problem is how they were handled – or not handled. If the N.Z.F.F. is not part of the party then the likely offences are corrupt or otherwise illegal practices. If the N.Z.F.F. IS a part of the Party then the Party Secretary could be accused of offences around the maintenance of records or failing to declare donations.

In March of this year, a former New Zealand First Member of Parliament and advisor Ross Meurant lifted the lid on his time in the party following an investigation into the N.Z.F.F. by Stuff in 2019.

Potentially serious stuff.

Irrespective of whether Mr Jones wanted to stop camera’s from being placed on fishing trawlers, there is a good case for them being there. Those of you who have followed this blog for awhile will know that I have been following the activities of trawlers around New Zealand, particularly after some serious incidents at the start of the 2010’s. New Zealand marine fisheries are viewed by some as a sort of wild west in terms of (un)lawful conduct, by other nations.

New Zealand’s human rights record, which I take more seriously, is also at risk if we do not make sure that fishing vessels are compliant with New Zealand law and be prepared to prosecute their owners then they are not. The Oyang case, the scampi and hoki allegations show that the actual corruption in the industry is as great as the potential corruption. That it involves Ministers of the Crown is something everyone should be paying attention to.

N.Z. in lock down: DAY 42

Yesterday was DAY 42 of New Zealand in lock down as we fight the COVID19 pandemic.

This is a short article. For several days now A.C.T. Leader David Seymour has been pressuring the Government to release its legal advice on the legality of the lock down. Chair of the Epidemic Response Committee Simon Bridges has summonsed the Inspector General to appear before the Committee, something that has never been done by a N.Z. Parliament before.

Whilst the Government for reasons of transparency SHOULD release the legal advice unless advised not to, I do not think Mr Seymour is going to get the answer he was looking for. I now explain why.

The Government issued an Epidemic Notice on 25 March 2020 under Section 5(1) of the Epidemic Preparedness Act 2006. This cleared the way for a State of Emergency to be declared on the grounds of an epidemic. On the same day at 1221 hours a State of Emergency was put into force across New Zealand. The description of emergency in Section 4 of the C.D.E.M. Act 2002 includes epidemic.

Dr Ashley Bloomfield was exercising powers that were accorded under Section 70(1)(m) of the Health Act 1956, which was triggered by the declaration of the State of Emergency at 1221 hours 25 March 2020. I have seen notices published per 70(1)(m) in my local newspaper regarding the Civil Defence emergency. Others said they heard about it through radio and/or saw it on television.

The measures permitted under the above, include shutting down premises/locations/regions as required.

In other words I do not see anything in the legislation that Dr Bloomfield or anyone else may have exceeded.


N.Z. in lock down: DAY 39

Yesterday was DAY 39 of New Zealand in lock down as we fight the COVID19 pandemic.

For the last 5 weeks and 4 days we have been trying to limit the spread of COVID19 within New Zealand. To do that, the country has had to make substantial sacrifices, including briefly foregoing many of the activities we had come to take for granted. Thus far New Zealand has been very successful in containing COVID19 and restricting its ability to harm our communities. The very vast majority of New Zealanders have been stringent in their compliance with the restrictions and protective measures that have been put in place.

However, there is a small number of irresponsible morons who think that at LEVEL 3 they can have their lives back, that they can start attending parties and do not have to abide by social distancing any more. New Zealand Police in the first few days since LEVEL 3 restrictions came into force have prosecuted 135 people and warned another 342. In the last few days there have been several major incidents where people have not complied with social distancing:

  • A tangi in Christchurch where 100 people turned out, despite being told that only 10 people were allowed
  • A gang party in Christchurch

New Zealand Police need to get tough. New Zealanders are done with playing kind. We have been in LEVEL 4 for 5 weeks and now LEVEL 3 for a week. People cannot claim to not know any more. We have ample evidence both here and abroad of what happens if we are not firm on the safety measures that have been put in place. I propose:

  1. In the first instance a $500 fine payable in one week or  – given the large number of people who live pay check to pay check, the impact in the bank balance and the resulting telling off that they should be getting from their bubble should be enough to make them not do it again
  2. In the second instance if a fine has failed to get the message through, a night in the police cells; should the fine fail to be paid without good reason, the punishment in the second instance is applicable
  3. In the third instance, jail time – if a person is really determined to ignore the laws and put the rest of us in unnecessary danger because all they could think of was themselves, then that person should be held until COVID19 is no longer a danger

Harsh? Well, to be honest, I heard that Australia was putting up $1,000 instant fines, so in that respect, not as harsh as people might think. And there is a simple reason for that. People who breach the rules will have to be accountable to their bubbles when they break them, and I am sure that those bubble members will not be happy at the prospect of LEVEL lasting beyond 11 May 2020.