Michael Cullen: No need for constitutional alarm

5:30 AM Tuesday Feb 5, 2013

Over recent weeks the Herald has carried articles by members of a body which calls itself the Independent Constitutional Review Panel. Much of the import of these articles has been to attack the Constitutional Advisory Panel which was created by the current Government as a consequence of the supply and confidence agreement between the National and Maori parties following the 2008 election.

This latter panel is described in terms which can only be taken to mean that it is supposed to be part of some conspiracy to impose radical constitutional change on New Zealand, in particular a written constitution which has the status of supreme law, incorporating the Treaty of Waitangi, which will then be interpreted by a Supreme Court with a pro-Maori bias to the detriment of the rest of New Zealand.

Even in what has been an unusually hot and dry summer this claim can only be described as proceeding from somewhat fevered imaginations. The primary task of the government-created panel is "to stimulate public debate and awareness of constitutional issues by providing information about New Zealand's constitutional arrangements", to quote the panel's terms of reference. The purpose of doing that is to give the two lead ministers (Bill English and Pita Sharples) "an understanding of New Zealanders' perspectives on this country's constitutional arrangements, topical issues and areas where reform is considered desirable.

The ministers will then recommend to Cabinet "whether any further consideration of particular issues is desirable".

In other words, the panel's job is to collate and disseminate information about the current nature of our constitution, encourage and monitor widespread public debate on possible changes to the constitution, and report back to the ministers on the outcome of that process.

It is not the job of the panel to itself promote any particular changes but to do its best to ensure the debate is as well-informed as possible.

The terms of reference do refer specifically to Maori representation and the role of the Treaty of Waitangi within our constitutional arrangements. That is not surprising since the initiative for the discussion came from the Maori Party. And the panel is tasked with "seeking the views of all New Zealanders, including Maori in a manner that is reflective of the Treaty of Waitangi relationship and responsive to Maori consultation preferences".

But this is a pretty slender thread on which to hang a conspiracy theory, as the so-called independent panel does. The terms also mention a range of other matters and note that further matters will arise during the public discussion. In any case, it would be a strange view of New Zealand in 2013 that would consider it possible to discuss our current constitution without reference to the role of the Treaty and the future of the current arrangements for Maori representation. After all, the latter item could just as well be seen as part of a conspiracy to do away with the Maori seats, a suggestion which will no doubt be aired in the public discussion.

The particular conspiracy theory that the "independent" panel has been promoting is belied by the diversity of the government-appointed panel (which, in fact, operates independently of the Government). It is no great secret that I am, by and large, a constitutional conservative, supportive of parliamentary supremacy, and therefore opposed to a written constitution which has the status of supreme law, not fussed about New Zealand continuing to be a constitutional monarchy, a little sceptical about how much of the burden of defining a nation the Treaty can bear, and generally holding the view that the onus of proof in relation to any proposed constitutional change lies with the proponents of that change.

I know that other members of the panel have different views, some more radical, others, I suspect, more conservative.

None of that matters very much because our job is to report on your views, not ours.

What I know for certain is that the panel has spent a lot of time and a great deal of intellectual energy in trying to ensure that the material that we have prepared is as straightforward, unbiased, and helpful as possible. That task has been completed.

We are about to begin to move to the next phase where that material will become part of a period of public discussion which will then provide the material for our report to ministers.

It is anticipated that there will also be interaction with the multi-party parliamentary group which has been set up as part of the process.

What the panel hopes is that all New Zealanders will feel able to participate in this discussion and will be confident that their views will be listened to carefully and taken account of in the panel's final report.

No doubt some extreme views will be expressed. But, let us not be afraid to discuss issues which are central to our health and future as a nation.

Sir Michael Cullen is a member of the Constitutional Advisory Panel and a former Deputy Prime Minister.