FACT SCENARIO

You are an intern working for a (fictional) new political party, the Aotearoa Reform Party (ARP) which intends to put forward a number of candidates at the forthcoming New Zealand general election on 19 September. ARPs most prominent member, a wealthy businessman and philanthropist Grantham Morrigan, will be contesting the Ohariu electorate seat in Wellington. Mr Morrigan is polling reasonable well against the incumbent Labour MP Greg O’Connor. He is hoping to win the Ohariu seat which might allow ARP to bring in more MPs, even if the ARP party vote is beneath the 5% threshold.
Mr Morrigan and the ARP board are preparing for their inaugural party conference to be held in early July at which they will launch their policy platform for the election. A key issue (and Mr Morrigans main reason for launching and funding ARP) is constitutional reform. At a February 2020 press conference, Mr Morrigan said that New Zealand desperately needs a written constitution but did not elaborate further. The details of ARPs policy and proposals for constitutional reform (alongside its other policies) will be finalised at a (closed) board meeting on 3 May.

Mr Morrigan has asked you the only ARP intern with a legal background for help in drafting a board paper dealing with the constitutional reform aspects of the proposed party policy. His instructions to you state I need a memorandum containing clear, informed analysis on the issues noted below which can include identifying different options and comparative legal and other advantages and disadvantages of each. Your advice should be balanced and supported by relevant academic or judicial authority. Im interested in your informed opinions, but ultimately, the ARP board will make the final strategy decisions.

TOPIC 1: legal status of a written constitution (40% of total marks)

Mr Morrigan is aware that there are different ways in which a written constitution might be incorporated into New Zealands legal system. One option would be for a comprehensive constitution to be passed as ordinary legislation. Another approach would be to protect the new constitution from change by a future government or coalition holding a bare majority in Parliament by using some sort of legislative entrenchment device.
A separate (but related) question is whether the constitution could be relied on by the courts to invalidate other legislation which is inconsistent with the constitution.

Your task: topic 1:

With reference to relevant commentary and caselaw, explain the legal/constitutional implications and comparative advantages and disadvantages for the proposed constitution of:

i. Entrenchment vs. non-entrenchment; and
ii. Higher law status vs ordinary legislation.

TOPIC 2: Te Tiriti o Waitangi/Treaty of Waitangi (40% of total marks)

Mr Morrigan expects that issue of the place of Te Tiriti o Waitangi/Treaty of Waitangi in a new constitution for New Zealand will be one of the most contentious aspects of any constitutional
reform process. He has a clear view that Te Tiriti o Waitangi/Treaty of Waitangi should be in the new constitution in some form, but beyond that, has no firm opinions on how that might be done.

Your task: topic 2:

With reference to relevant commentary and caselaw, outline at least two different ways in which Te Tiriti o Waitangi/Treaty of Waitangi could be included in a new constitution. Discuss the legal/constitutional implications and comparative advantages and disadvantages of the alternative approaches you describe. With reasons, explain which approach you consider appropriate.

INSTRUCTIONS: please answer topic 1 and topic 2 separately with footnotes. The answers need to be in line with the New Zealand constitutional law. I will give relevant information but some research will be needed. The word limit is 1200 words each question which doesn’t include the footnotes.