Colin James (Otago Daily Times)
It's the constitution, stupid. Not so ho hum.
In the news recently: a National party apparatchik from John Key's electorate got excited about a TV programme on poverty during the election campaign and used his sinecure on New Zealand on Air to push a ban on such naughtiness; and reaffirmation of a ministerial trading-floor deal to legislate more pokies for Sky City in return for it building a convention centre.
Neither is a good look.
The Sky City trade follows the deal changing the labour law to placate Warner Brothers. Both break the informal post-1984 rule barring specious self-interest pitches.
New Zealand on Air does not run elections. It commissions public-interest programmes. Would it now be bothered if the documentary had discomforted Labour? A Crown entity has strayed off its patch.
Also in the news recently: Winston Peters attacking the Solicitor-General's demand for court costs from the (inadvertent?) recorder of the infamous, if also banal, Key-John Banks "cup of tea" chat; the recorder had inconclusively sought to establish whether the recording was a crime. Peters: the dispute was between the National party leader, a private citizen, and the recorder, not a matter of state. Not a good look, even if by the book.
Next contrast the police's speedy invasion of media organisations on Key's complaint about the recording and speedy "crime" warnings last week to block mainstream airings of the YouTube version with the drawn-out inquiry into Darren Hughes' non-crime last year which cost Labour weeks of bad publicity. Not a good look.
That's all small-c constitutional stuff at the administrative level, that is, to do with exercising power in accordance with law, convention and ethical practice. Politicians, public servants and police do at times chafe. Occasional lapses are understandable and tolerable - if occasional.
Which they still are. Contrast the United States where "executive orders" arbitrarily curtail individual rights on suspicion of terrorism or internet piracy. New Zealand is more liberal. That is an ingredient in our high score on broad prosperity measures.
And this parliamentary term the constitution is on the agenda in several ways.
At one level are two ACT bills. The first, proposing a spending cap, would constrain governments' scope for economic, environmental and social intervention. The second, proposing principles to which all laws would have to conform, would in effect declare property ownership a right alongside the rights to life and liberty.
National can accommodate the first because it will be within ACT's cap this term and a different future parliamentary majority could simply repeal or modify it. The Maori party would likely be part of any such majority. Note in that context its blasting of Key for omitting poverty, the Treaty of Waitangi and Maori in his government priorities speech and its "total outrage" at the sale of Crafar farms to a Chinese state enterprise. Some "support" party.
ACT's regulatory reform is a can-of-worms. Who is to say a benefit is not a property right, for example? The bill is likely to be softened to requiring governments to state their lawmaking principles and give reasons when departing from them.
At a higher level is the review of MMP. This is likely to propose ending the anomaly under which winning an electorate seat gives a party full proportionality without clearing the 5 per cent party vote threshold, perhaps offset by lowering the threshold to 4 per cent. (Key might not have bothered with his cup of tea if that had applied in 2011; anyway ACT got only one seat.) Other changes some submitters will push include a higher ratio of electorate to list seats and giving voters a way of influencing the order of party lists.
When the Electoral Commission reports, how will decisions be taken? By referendum? More likely Justice Minister Judith Collins will seek a super-majority in Parliament or possibly even near-unanimity. A bare majority would lack legitimacy.
The same issue arises if, as is distinctly possible, the wide-ranging constitutional review agreed in 2008 by Key with the Maori party recommends a four-year fixed parliamentary term.
But that is not what the Maori party wanted the review for. It wants the Treaty - and thereby tino rangatiratanga - embedded in the constitution.
This goes too far for National unless it can find some weasel words, as when it signed the United Nations Declaration of the Rights of Indigenous Peoples (DRIP).
But weasels weasel. DRIP may well over time inch its way into our law through marginal concessions and court decisions. Likewise the massive WAI262 report on Maori flora, fauna, "knowledge" and intellectual property, on which ministers have been deafeningly silent, and last year's on-the-face-of-it innocuous foreshore and seabed legislation.
The constitution evolves, often almost imperceptibly, in good and bad ways. That is why convention and good practice - and not doing things that are not a good look - matter. As Waitangi Day reminds us.