Browsing by Author "McMenamin, Rebecca"

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Open Access
Inclusive constitution-making: Lessons from Iceland and Ireland for Aotearoa New Zealand
(Te Herenga Waka—Victoria University of Wellington, 2017) McMenamin, Rebecca
New Zealand’s constitutional journey has been revived in recent years through three expert-led dialogues on more certain, formalised and new constitutionalism: the Constitutional Advisory Panel (2013), Matike Mai Aotearoa (2016) and Constitution Aotearoa (2017). This paper advocates that any constitution-making in New Zealand should follow inclusive processes to uphold democratic legitimacy and facilitate deliberation. There are three key elements of inclusive constitution-making. First, the people should have ownership over important parts of the process. Second, there should be a citizen-led representative drafting body–a constituent assembly without the power to make ordinary law and comprised of politically independent delegates. Third, there should be public oversight of the process to ensure transparency and provide for meaningful consultation. This paper undertakes a comparative exercise, analysing recent inclusive constitution-making experiences in Iceland and Ireland, to offer proposals for inclusive constitution-making in Aotearoa New Zealand. New Zealand’s most significant challenge in terms of ownership is considering the proper role for experts and balancing the power of political elites in a climate of constitutional apathy. In terms of representation, the most significant challenge for New Zealand is how to represent the interests of Māori as tangata whenua and how to represent traditionally marginalised voices in politics, such as those of women, ethnic minorities and youth. In terms of public oversight, the biggest challenge is how we can use digital democracy in constitution-making.
Open Access
Reasonable accommodation: Equal education for learners with disabilities
(Te Herenga Waka—Victoria University of Wellington, 2016) McMenamin, Rebecca
This paper analyses the concept of reasonable accommodation which is integral to realising the Education Act 1989’s promise of equal education for persons with disabilities. Currently, that promise is undermined by discriminatory practices in schools. Reasonable accommodation is relevant to determining whether discrimination by State schools is justified pursuant to s 5 of the New Zealand Bill of Rights Act 1990. It raises considerations of the effectiveness of any accommodation and burden of that accommodation on State schools. This paper applies those considerations to the facts of A v Hutchinson and Green Bay High School to conclude that discrimination in the disciplinary decision at issue was not justified. Having assessed that situation, this paper turns to broader policy issues of the limited effectiveness of the law in remedying discrimination by State schools and the need to upskill, educate and support educators to realise the promise of equal education.