A "conversation" about the constitution
Colin James's column for the Otago Daily Times for 26 February 2013
The constitutional advisory panel launches its public "conversation" today. The timing is apposite: the Audit Office last week reminded John Key of the merit of proper process; and the Supreme Court's delayed ruling on the iwi water claim is imminent.
It comes also against a backdrop of legislation to significantly change the rol of regional and local government.
Most people think the constitution is for pointyheads, irrelevant to citizens going about their daily life. Most say they don't know what is in it or should be in it.
But advisory panel members have found people know more about the constitution than they think they do. For example, most have a definite answer to a question like whether Brendan Horan should stay an MP after being fired by New Zealand First on whose list he piggy-backed into Parliament. (Most think he should go.)
Many also had decided views last year on whether Sky City should get a sweetheart deal from the government in its quest for an international convention centre in Auckland, especially when it became known that the deal included a targeted law change to give Sky City more gambling licences.
Many thought ministers and a company should not cosy up on a project involving taxpayer money. So did some other potential bidders the Deputy Auditor-General says in her report were "effectively kept in the dark for some months while the government held detailed discussions with Sky City". Some major companies at the time asked if the rules had changed around pitching for major government projects.
Key has claimed the report clears him and his ministers. That is an example of the sort of selective reality Key sometimes parks in -- as in the Banks affair and initially in the Dotcom affair -- to sit out media questions and soothe public doubt. The Deputy Auditor-General's reality is that the process was flawed and proper practice was not followed on several counts.
Because it was flawed and because the Audit Office, which is our guardian of the constitutional rules on use of taxpayer money, got involved, there has been a year's delay in the project. That has not just been frustrating for ministers but has held up a potential economic benefit -- the opposite of ministers' intent.
The constitution's rules do have real-world effects.
Shane Jones knows that. He was put on hold over an Audit Office inquiry into an immigration decision he made and that contributed to the delay until yesterday of David Shearer's shadow cabinet reshuffle.
Isn't this just finicky? Shouldn't ministers with an election mandate to govern get on and govern? That question was answered 101 years ago by an incoming conservative (Reform party) government. It stopped the previous ministerial practice of appointing family and friends to public service positions and legislated appointment on merit.
The 1912 government in effect set limits to central government ministers' power. That issue is now live in another context: the distribution of power between central and subnational (regional and local) government? On this matter the government is turning out the opposite of what conservative governments usually are: Key's cabinet is a centralising cabinet.
In effect, in its legislation on councils the cabinet is saying that what it says in Wellington goes in Southland. When local and regional councils get in the way, as ministers think they do on fiscal and GDP growth counts, ministers must prevail.
Strictly speaking, they are right. Under our constitution councils' powers are delegated from Parliament. Local people's preferences have weight only to the extent Parliament says they do. That includes whether they want libraries and what level of rates they are willing to pay.
This has angered many councillors, especially where, as in almost all councils, the Audit Office and the Institute of Economic Research say they have not been profligate. Most councillors are conservatives. There is a political risk to a National cabinet.
The centralising tendency also runs counter to a modest trend in our sorts of countries towards more citizen involvement and participation in decisions, that is, to add to representative democracy an element of participatory democracy that goes beyond interest group lobbying.
Which leads back to the advisory panel's "conversation" launch.
The constitutional review initially looked like a meaningless gesture to the Maori party which wants serious debate on the Treaty of Waitangi's place in our governing arrangements. But National's minor infractions of proper constitutional process, its desire for a four-year parliamentary term, its centralising tendency and its inventive Treaty settlements have given the review some life.
And, though the advisory panel is not one of "experts" charged with rewriting the constitution, if it reports well on what it finds among the populace, that report might over time be influential.
The constitution, after all, belongs to all citizens, not just pointyheads.