Stopping Constitutional Change Without Public Support

15 Sep 2010

 

By Mai Chen, Chen Palmer New Zealand Public Law Specialists

 

It is unlikely that a majority of New Zealanders would currently support an immediate change to a supreme constitution for New Zealand. However, there is arguably widespread support for more limited constitutional reform, such as a special process to be followed before the Government can make certain constitutional changes.

 

A recent significant ShapeNZ research survey of 2261 new Zealanders commissioned by the New Zealand Business Council for Sustainable Development regarding constitutional arrangements and voting systems reveals New Zealanders’ increasing awareness about constitutional issues. The survey found that 60% of New Zealanders wanted more information about the alternatives to MMP, and more New Zealanders support than oppose extending the term of Parliament beyond its current three years. This reinforces the findings of the 2005 Inquiry to Review New Zealand’s Constitutional Arrangements (Constitutional Review) that “there was a clear message on what people thought is appropriate in the processes of constitutional change in New Zealand.” The public want an education campaign, widespread public support, a majority at a plebiscite or an extraordinary parliamentary majority.

 

The bottom line is that no Government should be able to justify any major change to New Zealand’s Constitution such as moving to supreme law without “authorisation” “by the people,” likely to be through a majority vote at a plebiscite.

 

However, the laws and practices making up New Zealand’s constitution can currently be amended by simple majority (except certain reserved provisions in the Electoral Act 1993), and Parliament does not need to utilise or satisfy any unique mechanisms of constitutional reform and codified procedures.

 

As the Constitutional Review noted, “significant constitutional changes have been made in New Zealand in the past, without a great deal of public debate. Our current arrangements in fact give considerable latitude for transforming rights and powers imperceptibly. Of course the danger in this approach is that the government of the day decides what approach to take.”

 

There have been seven government initiated referenda (on compulsory superannuation, the voting system, the term of Parliament, compulsory military training and off-course betting); however, there was no referendum when the then Government replaced the Privy Council with the Supreme Court of New Zealand as our final court of appeal, or when it abolished the royal honours system, replaced the title Queen’s Counsel with Senior Counsel, and removed the references to allegiances to the Queen from public oaths. These changes have been criticised as moving New Zealand away from a monarchy to a republic by stealth.

 

There has also always been concern that, without first getting majority public support, various governments have conceded power to Maori and status to the Treaty of Waitangi through the foreshore and seabed negotiations, Treaty settlements and co-management and co-governance arrangements.

 

The problem is that some constitutional change may be noticed only by experts, since change can occur as a result of a series of smaller, subtler amendments rather than one ‘big bang’. Those who know enough about constitutional issues to want to let sleeping dogs lie may find out too late that significant changes have been made without majority public support/consent. There may be no public education programme or chance to vote at a plebiscite. There may only be the usual process for law reform of a discussion paper at the policy formation stage, and a select committee process when the bill is going through Parliament (provided the Government does not decide to take urgency, which it can).

 

Admittedly, there are political sanctions for not involving the public in “authorising” constitutional change, or not implementing their clear opinion on an issue, but these work only if the public notice. The Constitutional Review says that “[s]ome members [of the Review committee] consider the 3-year term of Parliament is itself a constraint on major change, as it limits the ability of a government to promote constitutional change without sufficient popular support.” But with no prior demarcation of what changes would have constitutional effect, safeguarded by special processes to amend such provisions, politicians may not realise the significance of the changes they are making. The lack of special procedures also makes public debate less likely when the demarcation line is crossed by some proposed legislative change. Thus, there may be inadequate checks on constitutional reforms which are not supported by a majority of New Zealanders.

 

Some would argue that there is an established convention in New Zealand that constitutional changes will only be made on a binding referendum. Even if this were true, I think a convention is the wrong mechanism for restricting significant constitutional change, given the imprecise nature of conventions, which depend on practice and usage. We need something stronger and clearer to prevent constitutional change slipping under the radar.

 

The real issue New Zealanders need to discuss is what matters are sufficiently important that a special constitutional change process is needed, what that special process should be and how to protect that process from itself being changed. Given New Zealand’s pragmatic evolutionary approach to constitutional matters, protections may best be implemented by an extended ordinary constitution utilising the current Constitution Act, the New Zealand Bill of Rights Act, and the Electoral Act, with greater use of entrenchment (and potentially double entrenchment) for important provisions. This has the potential to work well, provided these ordinary statutes include all of the matters New Zealanders think should not be changed without public debate and public agreement.

 

Alternatively, New Zealand could implement a system requiring a majority plebiscite for matters of “constitutional” importance. The Government would be required to act on the majority result of such a referendum rather than just consider it, as with citizens-initiated referenda (“CIR”). Of the four CIRs which have been held, the Government has only subsequently acted on one.

 

In thinking through these issues, New Zealanders will be taking steps towards a supreme Constitution for New Zealand.

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