September 8, 2016

The Quest for a New Zealand Constitution

Published in ADLSI Law News Issue 31 9 September (article available here).

By Rod Vaughan

Former Prime Minister Sir Geoffrey Palmer QC is on a mission to create a written constitution for New Zealand.

With Law Foundation Chair Dr Andrew Butler, he is publishing a book next month that will draft a model constitution. It is a topic that is dear to the heart of the constitutional lawyer who, during his time in Parliament, was the architect of the 1986 Constitution Act and the 1990 New Zealand Bill of Rights Act.

Sir Geoffrey says that, apart from the United Kingdom and Israel, New Zealand is alone in not having a written, codified constitution. He believes the flag debate has shown the need for such a document as it demonstrated how passionately New Zealanders cared about their national identity.

“If you want to know what sort of country you are, the first place you look is your constitution and we haven’t got one in that sense.”

The case for a written constitution

In a wide-ranging interview with Law News, Sir Geoffrey outlined what prompted him to tackle this issue.

Why do you think a constitution is really necessary?

“Every country has a constitution. New Zealand has one. The trouble with the ‘New Zealand constitution’ is that it is difficult to find and people do not know where to locate it. Such a situation is exceptionally unusual for any country. One scholar found in 2006 that the New Zealand constitution is located in 45 Acts of Parliament, including six passed in England, 12 international treaties, nine areas of common law, eight constitutional conventions, three and a half executive instruments, one prerogative instrument, one legislative instrument and half a judicial instrument. Further, much of the constitution is contained in what are known as constitutional conventions that are not legally binding.

“This situation makes it very difficult for the ordinary person to know how New Zealand is governed. It means that the constitution evolves and changes in accordance with political developments. So, the first purpose of the book that Dr Andrew Butler and I will publish on 21 September 2016 is to argue that New Zealand’s constitution should be written down authoritatively in one place. That way everyone can know what the basic rules are. For many at present it is all a bit of a mystery.”

Why haven’t we had one before?

“We have had one before. The New Zealand Constitution Act 1852 (UK), which was enacted for us in the UK, amounted to a written constitution to a large extent, but over the years it was whittled away by amendments. Its life petered out after the abolition of the Provincial Governments in 1876. The 1852 Act ended up with only 12 rump provisions left by 1986 and these provided almost no guidance on how the country was actually governed.

“Nonetheless, the courts sometimes refused to apply legislation that was inconsistent with that Act. It was eventually repealed and replaced by the Constitution Act 1986. That Act and the New Zealand Bill of Rights Act 1990 go some distance towards setting out the basic rules, but not far enough. And they can be repealed with a majority of one, as they are ordinary statutes.”

How should it be drawn up and who should be involved in the process?

“Constitutional change requires public support and public involvement. We have had two reviews of the New Zealand’s constitutional arrangements in recent years – one by a Parliamentary Select Committee in 2005 and another by a Government-appointed Committee in 2013. Neither led to any change.

“Dr Butler and I think the reason why this debate has stalled in New Zealand is that there is no specific model to debate and discuss. We aim to fill that gap. When we launch the book in September this year, we will also set up a website and take submissions and comments from the public on our proposals and then after a year we will publish a revised version.

“Then it will be time to say what should happen next. There would be a number of possibilities: political parties might see merit in it and advance proposals; a Commission of Inquiry, as for the MMP reform, could be established to obtain views and hammer out the detailed proposals; a consultation process like that for the flag referendum could be used. If change is to proceed, there would need to be an Act of Parliament containing the new constitution and a referendum of the electors to adopt it. This will all take time.”

What are the key principles it should enshrine?

“Principle 1 is accessibility and certainty. The rules, principles and processes about government and public power should be in one document so they are accessible, available and clear. Principle 2 revolves around education. A constitution will inform people and public decision-makers on their rights and responsibilities. It should help people to participate in democratic decision-making. Principle 3 should be the rule of law, a concept that is fundamental to a well-functioning democracy. Principle 4 is democratic accountability so that there are clear means of holding public decision-makers accountable to the public whom they serve on a continuing basis. Principle 5 is transparency so that decision-making is made more clear and transparent, enabling the public to be better able to make judgements about the policies adopted by Government.

“Principle 6 protects the rights of citizens in both the Bill of Rights and the Treaty of Waitangi. Principle 7 provides the rules concerning the Head of State. Principle 8 is to record important elements of New Zealand’s national identity and protect basic institutions that are required to serve the public. Principle 9 is to provide protections against the abuse of public power. Principle 10 is to ensure that the constitution belongs to the people and stands above any particular political party.”

Do you anticipate support for, or opposition to, it?

“I have tilled this ground before. There will be some differences in opinion about what should be in it or whether it is necessary. That’s not unusual. It happens now. And it happens around the world, because people’s views of how they should be governed is a type of conversation; so a constitution is constantly evolving. We would hope there will be substantial public support for it because what we are trying to achieve is to let New Zealanders know what their constitution is, and then provoke debate on a number of hot topics, like the monarchy, human rights protection and improved accountability

“These are not issues that our system encourages New Zealanders to debate very often; that’s why previous reviews have found that few could say what is in the constitution now. But it is a debate that we think people are willing to have – the flag referendum debate showed that people want to discuss the real constitutional issues.”

How long would it take to put it in place and would it need reviewing at regular intervals?

“This is not a task that has ever been attempted in New Zealand before. It will take some years to bring to fruition. Yet it is not as difficult as many think. Most countries have done it.

“New Zealand has one great advantage over some other countries in fashioning a written, codified constitution. It is a unitary state, not a federation, so things are much simpler here – just think of the Brexit reaction to power disappearing from Westminster to Europe.

“Any constitution itself has to provide how it can be altered. Since the written constitution we propose would be supreme law, it should not be capable of being altered in the same way as ordinary legislation.

“But the constitution should be flexible to an extent and able to respond to new developments and challenges. It must not hold the nation in a time warp. That is the major flaw with the Australian and US Constitutions. The Australian Constitution has a difficult amending procedure. Despite many efforts, that Constitution remains now largely as it was drafted in 1900. (By 2002, 44 proposals had been put to referendum with only eight succeeding.) The United States also has a Constitution that is difficult to alter and contains only 27 amendments. Ten of these occurred within four years of its Constitution being adopted in 1789. So nearly 220 years have seen only 17 amendments to that Constitution. The lapse of time has produced many difficulties there. New Zealand must have a systematic and regular procedure for updating its constitution. At the moment we neglect it. A regular review should be held every 10 years, in our view. But changes could also be made in between reviews if 75 per cent of the MPs agreed.”

Other perspectives

Public lawyer Mai Chen, Managing Partner of Chen Palmer, describes Sir Geoffrey’s proposal as “a thorough, well-researched and well drafted document which includes all of the content that should be considered from a democratic, strategic and technical perspective”.

“The problem remains, however, that a written higher law constitution requires the support of a majority of New Zealanders at a plebiscite to have constitutional legitimacy. This is recognised in Sir Geoffrey’s draft constitution, which requires a majority of the valid votes at a poll of the electors of New Zealand to come into effect.

“The problem is that if we cannot get a majority of New Zealanders to vote in favour of a flag change, when that referendum was pretty much a ‘nationhood’ design competition divorced from any constitutional reform elements, then I cannot see a time in the near future when a majority of New Zealanders will vote in favour of a written higher law constitution.

“But maybe, as Sir Geoffrey argues, it is because the public really wants to engage with substantive constitutional issues that the flag referendum failed.”

However, given the two recent reviews of New Zealand’s constitutional system (in 2005 and 2013 which resulted in no change), Ms Chen wonders whether the public’s support for substantive constitutional reform will increase in the medium term.

“The face of New Zealand is changing, as I explain in the ‘Superdiversity Stocktake: Implications for Business, Government and New Zealand’, which has now been downloaded over 100,000 times since its publication in November 2015. Right now in Auckland, almost 50 per cent of the population are Māori, Pasifika and Asian.

“If Māori, who have always been disproportionately supportive of a higher law constitution if it incorporates the Treaty of Waitangi, combine forces with the growing number of Pasifika, Asian and other ethnic migrants now calling New Zealand home, then a new ‘majority’ of New Zealanders may emerge.

“Many migrants, however, come from countries without a working written constitution, or even the rule of law and democracy. Will they have any reason to want constitutional reform due to having their own rights and freedoms trammelled in their home country or in NZ, and would they understand enough about New Zealand’s constitutional system to think that a written constitution might be the solution?”

Ms Chen says that, despite the 2038 population projections by Statistics New Zealand estimating that 51 per cent of New Zealanders will identify as Asian, Māori or Pasifika, 65 per cent will continue to identify as New Zealand European, such is the increase in intermarriage and the growing number of mixed-race New Zealanders. “I do not therefore see a clear ‘majority’ in favour of constitutional reform to implement a written higher law constitution any time soon. For Sir Geoffrey, as the driving force behind the Constitution Act 1986 and the New Zealand Bill of Rights Act 1990, this book and its proposed written constitution are no doubt unfinished business.”

Otago University law professor Andrew Geddis told Law News that New Zealand’s current uncodified constitutional arrangements have a degree of flexibility that New Zealanders, who are pragmatic by nature, like.

“By not having a codified set of ‘higher law’ rules we retain ultimate decisional power on Parliament. This not only allows for things to get done (and then get undone) relatively easily but it avoids the usually presented alternative, which is unelected, unaccountable judges getting the ‘last word’ on what can and can’t be done in the country.”

In his view, this is why attempts to bring in a written constitution in the 1980s in the form of a Bill of Rights and an entrenched Treaty of Waitangi were rejected. Professor Geddis says the question now is whether anything has changed to make a written constitution a better proposition.

“Because our constitutional arrangements have very few formal constraints on government power, we rely heavily on somewhat informal conventions and practices to limit how the power is used in practice. Should these informal conventions and practices begin to break down, then the effective limits on public power are much reduced.

“There is perhaps a feeling that over recent administrations of both Labour and National this has begun to occur, meaning that we may need to replace them with more formal legal constraints that can’t be so easily ignored.”

Professor Geddis also makes the point that New Zealand society in 2016 may not be the same as it was back in the 1980s. “In particular, the rise of identity politics and increasing importance attached to individual rights, as well as a wider understanding of what those rights are, may have undercut the idea that electoral politics is a sufficient limitation on parliamentary power.

“That idea was, remember, the driving force behind MMP’s introduction and retention as it was seen as a better discipline on parliamentarians than the existing ‘First Past the Post’ voting system. But if you think elected politicians will be properly respectful of your rights or motivated to advance your interests, then can you trust them with final power to decide such matters?”

Professor Geddis says another issue to be considered relates to the Māori renaissance which challenges the constitutional orthodoxy that the legitimacy of the New Zealand state rests in the Crown’s acquisition of sovereignty in the 19th century.

“If, in fact, this was accomplished not by consensual transfer, as the Waitangi Tribunal found in its Te Paparahi o te Raki report, but rather by force or diktat, then by what right does the Crown rule? And, if it doesn’t have such a right, then don’t we need to establish a new constitutional settlement that more justly sets out the basis for Crown-Māori relations?”

Professor Geddis says if any of these considerations establish the need for a written constitution, there are three major questions to address.

“First of all, what would go into such a document? In particular, how would Te Tiriti/ the Treaty be handled? Second, is there any political will to engage in such debates, which by their very nature are likely to be heated and distracting from other more immediate policy objectives? Third, is the New Zealand public ready and willing to endorse a change in our governing arrangements? “The recent constitutional conversation by the Constitutional Advisory Panel concluded it isn’t, but that may well be because there wasn’t a real alternative on offer.

Professor Geddis says a critical feature of the debate will be, “if not Parliament deciding, then who?” “Where the alternative is three of five Supreme Court judges, as in Canada and the US, then the argument isn’t that attractive, to me anyway. “But as I understand it, Palmer and Butler are proposing we follow the Irish model and allow the general public to decide ‘constitutional’ matters by way of referenda. These can be used pro-actively to change the constitution to avoid problems, as was the case with allowing same-sex marriage, or reactively to undo court decisions that are disagreed with. I think this model has a lot more going for it.”

Auckland Law School graduate and Rhodes Scholar, Max Harris, who is currently pursuing a PhD as an Examination Fellow at All Souls’ College, Oxford, believes there would be “greater certainty, stability and the ability to plan affairs” from having a single, written constitution. He told Law News that such a document would also guard against abuses of power.

“As the recent Constitutional Review Panel said, it’s pretty remarkable that in New Zealand Parliament can pass a law that it knows is in violation of human rights. That says something about the fragility of human rights protection.”

Mr Harris says that he is not convinced that a written constitution that allows judges to strike down legislation would create a new risk of abuse of power from judges. “I think there’s a strong enough culture in New Zealand to prevent overtly political judicial appointments, and New Zealand judges would be sparing in striking down legislation, respecting the role of Parliament. We should also remember that the current position arguably gives judges more power, since they are the ones settling the content of our uncertain constitution.” Mr Harris believes the process for developing a written constitution is all-important.

“A central role for Māori in the drafting of the constitution is fundamental and I hope Sir Geoffrey Palmer and Dr Andrew Butler continue to gather views from the Māori community. “Moana Jackson has done excellent constitutional thinking in the report he’s co-written with Margaret Mutu, ‘Matike Mai Aotearoa’. Moana has made the point in conversation with me that a constitution must belong here and I think he is right. We are more than just ‘little Britain’. A written constitution should be ambitious, imaginative, transformative and grounded in Aotearoa’s own traditions if it has the support of the public.

Mr Harris says key questions to be addressed include the role of the Treaty of Waitangi, the status of socio-economic rights, and how we think about the branches of government.

“Should there just be three or can we think of government in newer and more interesting ways? he asks. “Some say that ‘if it aint broke, don’t fix it’. But one question we don’t often ask is: from whose perspective are we judging whether the system is broke? From the perspective of some groups who have been at the end of unjust legislation in recent years, like the Foreshore and Seabed Act 2004, or the 2010 legislation banning all prisoners from voting, the system is very much broken and does need fixing. I think the perspectives of these groups needs particular weight. They know what it’s like to face unconstitutional legislation and not to be able to do much about it.”