He has published widely on legal matters and contributed extensively to work on national law reform across a number of areas. Skip to main content.
Events Media Contact us Home. Open main menu Close main menu. Open search Close search. As an example, take rough sleepers — one of the groups recognised in the NHS definition — they may have relatively poor and unequal health outcomes, but if they have chosen to adopt this way of life, the consequence of what they have chosen is not inequitable. Of course, if they have not chosen the way of life but it has been forced upon them, that may be the consequence of inequitable policies.
But the inequity lies not in the public health, but elsewhere. In a publicly funded health service, the public provider should not be looking to remedy unfairness and injustice.
What it really is, is rationalisation of the aim to discriminate on the basis of race. Perhaps this is because of a mistaken view that discrimination is required by the Treaty, but it is still discrimination. In a health system which did not exist before and was established and has been continued to provide a health service funded by the general taxpayer, health needs — only health needs — should be the determinant of how the resources are deployed.
For example, diabetes is a major health problem within the whole community. The proportionate greater benefit will be health-based, not race-based. Members of the public service sometimes have independent statutory powers of decision, over which Ministers do not have control and for the exercise of which they are not responsible.
Other parts of the broad state sector are not subject to ministerial control and responsibility in the same way that departments and their members usually are. The bodies set up separately from government include regulatory agencies, providers of a wide range of services, state trading bodies, and supervisory, control, and advice agencies. In establishing such bodies, over a very long period, Parliament has recognised and reaffirmed that much public power should not be concentrated.
It should be allocated to distinct bodies with varying degrees of independence from the Executive. This separation and independence may help ensure, for instance, a judicial independence of decision, equitable distribution of funds, the pursuit of commercial profit and business efficiency, or effective and credible processes of independent scrutiny, supervision and advice. Over recent decades the processes of government have become more open.
Notably, in the Official Information Act reversed the basic principle of the Official Secrets Act the principle now is that official information is to be made available to those seeking it unless there is good reason for withholding it.
Such reasons relate to public interests such as the national security and law enforcement, and to private interests such as confidences and privacy. Underlying the principle are a number of purposes, including enabling the more effective participation of the people of New Zealand in the making and administration of laws and policies, and promoting the accountability of Ministers of the Crown and officials, with the consequence of enhancing respect for the law and promoting the good government of New Zealand.
The emphasis on greater transparency in decision making and policy development is also to be seen in the legislation governing the government's spending and fiscal policies especially the Public Finance Act , and in the operation of the parliamentary select committee processes.
In a range of ways, individuals and communities participate directly in political and governmental processes important to them. There is for instance much emphasis in law and in practice on those exercising public power giving fair hearings to and consulting those affected by the exercise of that power.
Also relevant is the enactment of the Citizens Initiated Referenda Act A balance has to be struck between majority power and minority right, between the sovereignty of the people exercised through Parliament and the rule of the law, and between the right of elected governments to have their policies enacted into law and the protection of fundamental social and constitutional values.
The answer cannot always lie with simple majority decision-making. Indeed, those with the authority to make majority decisions often themselves recognise that their authority is limited by understandings of what is basic in our society, by convention, by the Treaty of Waitangi , by international obligations and by ideas of fairness and justice. Major changes in science, technology, communications, trade patterns, financial systems, population movement, the environment and many other matters of international concern mean that more and more law is made through international processes.
The powers of national governmental institutions are correspondingly reduced. This has important consequences for national and international constitutional processes. Parliament has an opportunity to scrutinise and comment on the more significant international treaties before they are ratified by the Executive.
In theory, many parts of the constitution can be amended by legislation passed by a simple majority of the Members of Parliament. That power is, however, restrained by law, convention, practice, and public acceptance. Certain key elements of the electoral system can be amended only if the people approve it in a referendum, or if three-quarters of the Members of Parliament agree.
The provisions thus protected concern the three-year term of Parliament, the membership of the Representation Commission, the division of New Zealand into general electoral districts, the voting age, and the method of voting. Accordingly, the amendments made in the last 50 years to these provisions have been made only following agreement between the major political parties in the House or, in the notable instance of the change to proportional representation, following a binding referendum which had itself been preceded by an indicative referendum.
It is also accepted, at the level of convention, that those voting requirements also apply to any proposal to amend the protective provision. Similarly, Standing Orders provide that an entrenched provision should be adopted by the House only by the vote which would be required for the amendment or repeal of the provision being entrenched. The Constitution Act itself was enacted with general bipartisan support in the House.
And recommendations to the House for new Standing Orders , in accordance with convention, are adopted by consensus in the Standing Orders Committee. Other constitutional changes arise from legislation enacted in the regular way, such as the New Zealand Bill of Rights Act , from decisions of the courts, from new prerogative instruments, and from changing practices which may contribute to new conventions. Some matters are better left to evolving practice rather than being made the subject of formal statement.
But such development, like other changes to the constitution, should always be based on relevant principle. Skip to main content. Ministers of the Crown and the State Sector. Ministers, the Law, and Inquiries. Cabinet Decision-making. Elections, Transitions, and Government Formation. The Executive, Legislation, and the House. Official Information and Public Records.
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