The Standing Committee on Legal and Constitutional Affairs has tabled a report on harmonisation of legal systems . The media reporting on it has been that Australia and New Zealand should form union . The conservative fear is that it will end up in a PEPC . The inquiry advocates harmonisation on a case by case basis - but their methods cause centralisation.

From the report;

2.19 The main mechanisms by which legal harmonisation can be facilitated or achieved within Australia include:

• High Court judicial interpretation;
• High Court declaration of a single Australian common law;
• Model legislation;
• Referral of powers to the Commonwealth by the States;
• Cooperative legislative schemes; and
• Constitutional amendment.

The constitutional amendment has buckley's chance as voters have been rejecting centralising referendums in large numbers. I also like how they also believe the High Court can have a role in subverting the commonwealth and states with a proclamation on high - probably using the old standard of the corporations power (j/k).

To be truthful I find options one and two repugnant. A judicial arm of government is not supposed to operate that way.

We also need to recognise that nationalising laws and unitary parliament is a structural weakness. The co-operative legislative option is far better a choice.

Chapter 3 of the report includes a section of harmonisation of laws between Australia and New Zealand - noting that this is already occurring by different means on a case by case basis. The recommendations include;

• The Committee recommends that the Senate and the House of Representatives of the Australian Parliament invite the New Zealand Parliament to establish a trans-Tasman standing committee to monitor and report annually to each Parliament on appropriate measures to ensure ongoing harmonisation of the respective legal systems.
• The Committee further recommends that the trans-Tasman standing committee be required to explore and report on options that are of mutual benefit, including the possibility of closer association between Australia and New Zealand or full union.
• The Committee recommends that the Australian Government actively pursue with the New Zealand Government the institution of a common currency for Australia and New Zealand.
• The Committee further recommends that appropriately equitable arrangements would need to be put in place with respect to the composition of a resulting joint Reserve Bank Board.
• The Committee recommends that the participating Australian governments move to offer New Zealand Government ministers full membership of Australasian (currently Australian) ministerial councils.

Increased co-operation between Parliaments is always a good thing. There is always a romantic sentiment to bring New Zealand into the fold of Australian federation, to finish what should have been done in 1901, but under globalisation the costs of being a nation-state are getting less and less.

New Zealand already gets many second-order effects from Australia anyway - such as a benevolent region due to Australian military projection. This means New Zealand has been able to avoid spending heavily on its military.

However, New Zealand isn't a basketcase and it is doubtful it needs Australia at all. This looks like Australian big-government centralisation with seems to be the dominant philosophy of governance in Australia.

New Zealand and Fiji were involved in the original conventions for federation. New Zealand ultimately backed out due to the concern that a unified army based in Australia would not be able to defend New Zealand promptly enough, but also the worry that their main form of government income, customs, which comprised one-third of all receipts, would be lost to a federal government. However Captain Russell's speech at the 1891 convention points to a rising distrust of centralism in New Zealand.

From the 1891 Constitutional Conventions ;

I have been listening, as a representative of a remote part of Australasia, for the true federal spirit. It has been supposed that the federal spirit does not exist in New Zealand. I venture to say, without hesitation, that in any debate in New Zealand on the question of federation, we should have heard more of Australasia and less of Australia.

It is a broad question that we are here to deliberate upon, and as I am now only filling a gap of five minutes, and have most distinguished colleagues to follow me, I am unable to enter upon the different subjects at the length I should wish; but the great question that we have before us now is not the creation of one large colony on the continent of Australia, but to endeavour so to frame a constitution that all parts of Australasia shall be able to attach themselves to it should they now or hereafter think fit to do so.

It is perfectly true that New Zealand has decided to send but three delegates to this Convention; but I would point out that, at the deliberations of the conference last year, though nothing was affirmed on the subject, it was held by all the speakers that in all probability the voting at the Convention would take place by colonies, and if that is the case surely the voice of three men expressed in one vote might in itself be held to have as much effect as the voice of a host, inasmuch as it would be the still small voice of a strong feeling, and not the loud popular clamour which so often means nothing at all.

The great question that Australasia has to consider at this moment is whether Australasia will constitute herself the mother state to which all the other peoples in the neighbourhood shall attach themselves. There are many questions of great importance which hinge on that, and which have not been alluded to in this resolution, and which could not have been alluded to by any of the previous speakers.

The great object of any federal constitution, according to my mind, at any rate-I speak for myself-the great desideratum should be to so frame a constitution that the remoter portions of Australasia should be able to join themselves on to what we may term the mother colony, should they think fit so to do.

Since this is my first diary entry, and this is an Australian based blog, I thought I'd better start with the issue of Australian union. Yesterday the New Zealand Herald asked for the opinions of its readers on whether New Zealand should join the Australian federation. I disagreed (with one mistake I didn't notice before publishing!):

"New Zealand has almost all of the advantages of being a state of Australia, without actually being one. We can freely travel and work across the Tasman, our exports enter Australia freely and we enjoy a close defence relationship with Australia. Joining the Australian federation would not change any of these things. It would relegate New Zealand to Australian stateship, and more than likely make little differen[ce] to the outlook of New Zealands economy, save billions of federal funds being spent here (which New South Wales and Victoria more than likely wouldn't want to provide)."

Which is of course the nub of the issue. Contrary to popular belief, New Zealand doesn't have the automatic right of entry into the Commonwealth of Australia under their constitution. The other issue is that the smaller states (And by that I mean states in Australia smaller than New Zealand in terms of population - Western Australia, South Australia, Tasmania and Queensland) wouldn't be too happy that their representation was being watered down by another large state.

x-posted on holdenrepublic.org.nz

Lewis Holden has an interesting post on George Grey .

From the article:

Phillip Joseph, in his book on New Zealand's constitution, noted that the first draft of the New Zealand Constitution Act 1852, largely written by Sir George Grey, included a provision for the Governor to be elected by New Zealand's Parliament.

But it seems from Sinclair's book that Grey didn't give up. In 1887 Grey, by then both a former Governor and Premier, moved the Election of Governor Bill to make the office of Governor an elective position. His Bill gained the support of a large number of MPs, but was narrowly defeated 46 - 48, being opposed by the government of Harry Atkinson.

George Grey took part in the Australian (or Australasian) conventions prior to federation and advocated for an elected Governor-General there too. From a prior SSR article: George Grey and the Elected Governor General :

That the words "The Queen may, from time to time, appoint," lines 1 and 2, be omitted with a view to the insertion of the words "There shall be."

The intention is that the governor may be elected. I feel that in bringing this subject under the notice of the Convention I am entering upon very delicate and very debatable grounds But I feel that, in point of fact, the future of vast multitudes of persons will depend upon the manner in which this question is dealt with.

Lewis Holden is exploring the issue of what a President would be in a republican New Zealand. He covers the advantages and disadvantages of a ceremonial appointed executive, separate executive and executive elected by parliament.

Any republican system has to be able to explain its choice of executive, especially one that will move from a constitutional monarchy based on a parliamentary system - as Australia and New Zealand are.

Lewis writes that he prefers the parliamentary model :

However, in discussions about deeper constitutional change, such as the separation of the executive from parliament - to prevent the melding of the legislature and the executive and thus protect against potential constitutional abuses by the executive - parliamentary republics still, in my view, stand stronger than presidential systems.

I disagree. I prefer the separate executive of the Washington system. The US system is messy and has massive arguments about separation of powers and checks and balances - arguments that parliaments don't have as those powers which the President and Congress are fighting over are predominantly the domain of the executive in a parliament.

A parliamentary system's calm belies the lack of independent legislative power in it. The Washington system is becoming more dependent upon party machines to provide the checks and balances like the Australian system. This is a recent phenomenon in the US; because of Labor's pledge and block voting in Australia it has always been a part of the Australian political landscape.

The messiness of the US system and its airing of its power struggles between executive and congress in public are a good sign of the deliberative component in liberal democracy.

New Zealand is doing something very interesting. They have a Police Act Review Wiki where you can contribute to the Police Act. It will be interesting to see just how specialist a legislator has to be; if citizens are educated enough and capable of making legal documents that can survive constitutional scrutiny what need is there for specialist legislators in parliament? They pretty much become electoral specialists then. Which is a totally different and more cynical animal.

The wiki isn't entirely citizen legislation though, it is expected to be an adjunct to the normal parliamentary drafting process. From the main page of the wiki:

An official Bill is currently being written-up by parliamentary drafters, but in parallel there's an opportunity for others to suggest how a new Policing Act might look by contributing to a wiki Act. It'll be kept open until 1 November 2007, when the results can be fed back into the official law-making process.

Creating this online environment is a continuation of the open process used throughout the Police Act Review. It's all about encouraging a national conversation on policing.

The new Act will need to cover a wide range of topics, from high-level governance to day-to-day administration. To help get people started, we've included some headings and a few example ideas.

But don't feel constrained. For instance, if you'd prefer to work offline and upload a complete Act for others to comment on, by all means add it beneath the one we've started (there's a space provided under the "Alternative versions" heading).

It will be interesting to see if law becomes trans-national with non NZ citizens start contributing to the Police Act in order to restrict policing capabilities and maximise liberties.

The technology of Citizen Legislators is similar to Citizen Auditors which are spontaneous forming of auditing groups to audit government by interested citizens. Citizen auditors can act as part of a free and independent quality control process on parliament. The FOI (freedom of information) process is supposed to aid this but at the state level it is becoming increasingly restricted by a secretive executive claiming executive privilege. It would improve governance if citizens were given wide ranging auditing capabilities of government.

More

More discussion on slashdot: New Zealand Police Act Wiki Lets You Write the Law which is where I saw it originally.

It's election year in New Zealand, and the political competition between the left, right and centre has begun in earnest. Some polls are showing a very close election result - primarily because of New Zealand's proportional representation system.

This of course creates great anxiety amongst the politicos - the potential for a hung parliament means an uncertain election outcome, which means instability and all that goes with it.

How should we avoid this uncertainty? Well, I propose dusting off a proposal from the late leader of the New Zealand Greens, Rod Donald. Donald proposed instituting investiture votes once parliament meets following an election. Such a vote would displace the Governor-Generals ability to appoint the Government, thus abolishing another part of the Royal Prerogative.