NZ Constitutional Reform (2023)

One of the major criminal law reforms of the last decade was the passage of a Criminal Procedure Act that abolished trial by jury for most crimes, and for the crimes where a trial by jury is permitted on its face, giving the Court the power to deny trial by jury. There are some technicalities and exceptions, but that's the crux of it. This move, if not popular, seems to have passed with minimal complaint. It seems clear that the disruption to people's lives from jury service, and the inadequate compensation offered (most workers would get considerably more per hour from their employers, but were obliged to take leave without pay and accept jury compensation of $25 per hour minus tax instead), caused the public to regard jury service as an unwelcome imposition rather than a safeguard of their liberties. But a natural consequence is that now, subjective findings of fact reflect the prejudices of the class from which judges are drawn: mostly middle- to upper-class, highly educate

One of the landmark changes achieved by Helen Clark's Labour Government was the abolition of the right of appeal to the Privy Council. While the merits of doing so, and the replacement of the Privy Council with a local Supreme Court, could be debated either way, the real problem with it in a context of fundamental rights and of a limitation of powers of Parliament is simple. These rights and limitations can be overridden by Parliament if, by ordinary statute, Parliament can erect a new higher court, which the Government can then pack with judges unsympathetic to the right or limitation to be overridden. The obvious solution to this is to entrench the supremacy and make-up of whatever court is to be supreme. A government might even choose to reinstate appeals to the Privy Council! I think this unwise, though, because the composition of the Privy Council is not subject to the people of New Zealand, either directly or through a representative body. A better step would be to entrench t

Introduction The MMP system used in New Zealand is largely based on that introduced in Germany in the aftermath of the Second World War, with some differences in detail driven largely by the much greater size of Germany's Bundestag compared to our House of Representatives. One of the characteristics shared by both variants of the system is the requirement of a party to cross one of two thresholds in order to qualify for receiving an allocation of list MPs. In essence, the party must either  get at least 5% of all valid party votes cast, or  have a certain number of its electorate candidates win their electorates (one in New Zealand, three in Germany). The 5% threshold was sold to the Germans as necessary in light of the failure of the Weimar Republic. That unhappy State, an early experiment in nearly pure proportional representation, contended with legislative paralysis as the social and economic stresses of the time caused people to turn to fringe parties. Frustration with that p

The doctrine of parliamentary sovereignty is well established in New Zealand, and derives, more or less, from British constitutional practice in the 18th and 19th centuries. In practical terms, it means that Parliament — in effect, the House of Representatives, which is inevitably dominated by the government of the day — can pass any laws it likes, including constitutional changes that fundamentally change the nature of the relationship between the government and the governed. There is, of course, a good historical reason why Parliamentary sovereignty came to exist. In earlier (medieval and pre-industrial) times, when education and literacy were much less widespread than they now are, and when the lower classes had hardly any political rights or duties beyond the lord of their manor, limiting political life at the national level to the nobility, the landed gentry, and the wealthy merchants of the towns made sense. They were also the only ones who could really afford to travel to Westmi

This is a collection of proposals, in blog form, for the people of New Zealand to consider through the political process. I have written it up following the strong response of the Ardern, or Sixth Labour, government to the COVID-19 pandemic. This blog is not to debate whether the response chosen by the Government, and similar responses by many governments around the world, were wise or foolish in the abstract. But the ability of the Government to take the courses it did revealed, in my opinion, real and seris defects in New Zealand's political and constitutional framework. I outline possible measures to improve that framework, philosophical and practical, in the following posts, which will be linked to on this page as I write them. End Parliamentary Sovereignty Establish fundamental rights of individuals, families and households Introduce the Optional Preferential Party Vote Give a firm constitutional basis to the highest court Re-establish trial by jury for most criminal matters