If New Zealand doesn’t protect environmental rights there’ll be no environment – or economy – left to protect, argues Sir Geoffrey Palmer.
Chch City Councillor Raf Manji makes the case for a constitution with enforceable economic rights.
Since the Magna Carta in 1215, the drive for citizens’ rights has come from the civil and political sphere. The rights to fair and open justice, to democratic representation, and to basic liberty have underpinned developments over the last 800 years. It was not until 1919, and the establishment of the International Labour Organisation (ILO), that economic rights became codified explicitly, through the demand for the provision of a living wage. This was further reinforced in 1944, in the Philadelphia Declaration, where a minimum living wage was demanded, as well as the “provision of adequate nutrition, housing and facilities for recreation and culture”.
However, these were framed as demands, obligations and goals, rather than explicit rights. It wasn’t until the Universal Declaration of Human Rights in 1948 that we saw an economic right formally stated, with Article 25.1 noting “everyone has the right to a standard of living adequate for the health and well-being of himself and his family, including food, clothing, housing and medical care and necessary social services…”. This was codified in the 1966 International Covenant on Economics, Social and Cultural Rights, which is referred to in Article 106 of the proposed Constitution for Aotearoa New Zealand.
The problem with economic rights, even if acknowledged and recognised, is that they are quite difficult to enforce. We already have a very well established welfare system, whose role is to support those who do not have an adequate standard of living, either through unemployment benefits or tax transfers to those in work, but still needing financial help. Whilst the system is often difficult to navigate, inefficient, and often dehumanising, it is functioning and is recognised as a duty of government, whatever its stripe. The question then needs to be asked. Does the welfare “convention” need to be explicitly recognised in a new constitution and, if so, how could it be described?
The answer to the first question is maybe. Given that economic rights have been recognised through convention and practice, why do we need a formal right embedded in a written constitution. The answer to that is probably the same as to why do we need a written constitution, and that is because it helps to have rights and duties written down, just as a reminder to any future government who tries to remove or water them down. The question then remains, how would one describe an economic right? If one took the language of Article 25.1 of the Universal Declaration of Human Rights, the right to an adequate or basic standard of living, then one could, with some argument, create some kind of measurement of what an adequate standard of living would be.
How? Well, we have an example: superannuation for a married couple is fixed at 66% of the average wage. Would it be possible to frame a right that allowed for some variation whilst adhering to an underlying agreement? For example, if a right was framed as “the right to an adequate standard of living”, could that be enforced or challenged? It would be up to any government to define what that might look like, whether a measure of average income or some other measure. What would be challengeable in legal terms would be how far any government varied from what might be classed as “adequate”.
Another example of measurement is the Reserve Bank of New Zealand inflation target, which is set in a range, currently 1-3%, by the Minister of Finance, and often fluctuates outside that range. It is then up to the Governor of the Reserve Bank to report on why that has happened and what they intend to do to bring it back into the range that has been set.
I wouldn’t argue for that specificity in a constitution but by having an economic right defined as in the Universal Declaration of Human Rights, being both broad and specific, it allows for a legal recognition of a right that may not be delivered to an exact number but broadly acknowledges that the right exists, and that, if extinguished, could be challenged in the courts. In other words, if a government abolished all benefits, unlikely as that is, it could be challenged. Also, if benefits were reduced beyond a level that provided an “adequate” standard of living, then that also could be challenged, and would allow a court to rule of what an “adequate” standard of living could be regarded as. Given the enormous amount of data available from the workings of the welfare system over the last 80 years, there would be a reasonable expectation that a clear ruling could be achieved. The courts can and already do rule on economic matters. This has already been observed in recent pay equity deals.
To summarise, the case for economic rights to be codified and judicially enforceable may, at first, seem difficult and unrealistic. But, in reality, with the right wording, they could be enforced, if required. Their informal recognition is already embedded in our current welfare system, and with new policies such as universal basic income being widely discussed, it will be important and necessary to recognise current and future economic rights in any new constitution.
Parliament – not the Government – should decide when New Zealand can sign up to binding international treaties, declare war, and send troops overseas, says Sir Geoffrey Palmer
Sir Geoffrey Palmer makes the case for including a right to privacy in New Zealand’s constitution.
Parliament’s rules allow the Government to determine who becomes Parliament’s Speaker. Sir Geoffrey Palmer makes the case for a politically neutral process.
Parliament can take urgency whenever it wants, allowing it to rush new laws into force with limited consideration and public scrutiny. Sir Geoffrey Palmer explains the case for change.
Continue reading Should the use of urgency be restricted?
New Zealand’s constitution should safeguard the independence and core values of the public service, argues Sir Geoffrey Palmer
New Zealand’s constitution doesn’t do enough to protect local democracy, says Sir Geoffrey Palmer.
It’s time for the constitution to protect New Zealanders’ rights to a health environment, argues Sir Geoffrey Palmer
A four-year term, along with other constitutional reforms, would help Parliament to function better and improve the quality of lawmaking, argue Sir Geoffrey Palmer and Dr Andrew Butler.
There’s no evidence that a four-year Parliamentary term would lead to better legislation, argues Wellington lawyer Graeme Edgeler. And nor is there evidence that the current three-year term prevents Parliament from completing major law reform projects.
A four-year Parliamentary term won’t on its own improve the quality of New Zealand legislation, argues Professor Margaret Wilson. What’s needed are broader reforms to protect citizens’ rights and change Parliament’s adversarial culture.
If there is one thing everyone who talks about constitutional reform agrees on it is that New Zealand should have a four-year Parliamentary term. The arguments for this change are compelling. A four-year term would provide more time for policy to develop and legislation to be better scrutinised before enactment. The result, it is argued, would be better law, and better law would mean greater clarity and certainty that should lead to more efficiency and hopefully justice for all.
The fundamental argument for the four-year term therefore rests on having more time. More time for the political and administrative process to improve the whole system of governance. The basic issue then is whether more time alone will deliver better policy. I remain sceptical time alone will produce the desired outcome. The real issue is how the time is used as much as how much time you have. A more efficient use of time, however, requires substantial changes to the way Parliamentary time is organised and a more inclusive approach to citizen participation in policy making.
As a Minister, I certainly felt the tyranny of political time compressed into three years to deliver the manifesto commitments and fulfil the expectations of those who voted for your party. The first year was spent coming to terms with the reality and responsibility of governance and delivering such policy change to reassure voters you are fulfilling your promises. For example, as Minister of Labour I was instructed to introduce a new employment relationship statutory framework within 100 days. President Trump is experiencing the same 100-day expectation even though he has a four-year term.
If you are lucky the second year of the government will enable considered policy development resulting in your Bill being enacted that year or at least high enough on the Order Paper to be enacted early in the third year. The final year of course is all about preparing for the election at the end of the year.
Even given these time constraints, some argue New Zealand’s Parliament still produces too much legislation. It is true the quality is variable but I doubt more time alone will improve the quality. For me it is how time is used that is more important than whether we have a three or four-year Parliamentary term. Without any other change to our constitutional arrangements in Parliament, four years is unlikely to improve the quality of either policy or legislation.
In the past, I have not supported a four-year Parliamentary term because under our current constitution we have in reality executive sovereignty, not Parliamentary sovereignty. A four-year term alone would just enable another year of essentially unchecked executive decision making. As an ordinary citizen, the only check on this power is the three-year election.
For me, then, a four-year Parliamentary term must be accompanied by a more formal recognition of the rights of the opposition in Parliament to challenge and contribute to government decision making. The UK Parliament provides some useful examples we could use to ensure the opposition can raise and debate issues to challenge the government and provide a check on the tyranny of the majority that is often a very small majority of two or three votes. The prevailing winner-take-all adversarial approach in our Parliament continues to dominate political thinking in Parliament. As Speaker, I found a deep-seated reluctance to place any real constraint on Members’ behaviour when the Standing Orders Committee rejected introducing a code of good practice, even though many individual members supported such a change.
Also, the rights of individual citizens must be respected and not overturned under urgency without any real opportunity for anyone, including the opposition, to challenge the abolition of fundamental human rights as happened in both the Peter Jackson-inspired amendment to the Employment Relations Act and the New Zealand Public Health and Disability Amendment Act 2013. It is also time we recognised the New Zealand Bill of Rights Act is not an optional extra to any government action. Citizens’ right to challenge government decisions that ignore fundamental human rights must be clarified and supported through entrenchment of respect for the rule of law. It is the rule of law that provides transparent, accessible and accountable public decision making.
Personally, I welcome a debate on the four-year Parliamentary term but only in the context of the approach outlined by Palmer and Butler in their book A Constitution for Aotearoa New Zealand. It is time to seriously consider formalising our constitutional arrangements. We need to recognise public governance in the 21st century is more complex than in the 19th century. If we are to preserve our democratic form of governance we need a courageous government to lead the debate for a new constitutional arrangement.
Professor Margaret Wilson is a former Cabinet Minister and Speaker of the House. She was the founding Dean of the University of Waikato School of Law, and has served in wide range of public service roles.
The interests of future generations must be protected in any constitution, argues Professor Jonathan Boston, but we can’t afford to wait for constitutional reform before tackling environmental challenges.
In 2013 Parliament passed law under urgency allowing it to discriminate against people who care for disabled family members. Angela Hart gives a parent’s perspective.
A written constitution would protect local democracy from central government interference, says Dr Jean Drage.
I believe it is essential that New Zealand has a written constitution and that a system of local government is protected within this written constitution.
Over the years, local government in New Zealand has been changed at the whim of central government, often over a minor or local issue rather than as a result of well-documented or researched, reasoned and considered debate.
Today, we see central government stepping into local government business more than ever and, in some cases, overriding local decision-making (as we have seen in Christchurch with Environment Canterbury and with the ongoing earthquake recovery process).
Protecting local government within a written constitution will ensure that this level of government can only be changed by a majority within parliament. This will ensure that political party, local government and local community debate will have to be heard and considered as part of any major reforms or changes to local government.
To ensure local government is strengthened, it needs to be more prominent in the proposed Constitution for Aotearoa New Zealand. The constitution should explain that New Zealand has two levels of government, central and local. Local government should appear before Part 12 (The Bill of Rights), because the rights and freedoms relate to both levels of government and citizens.
The principles for local government in section 73 are good, but could be strengthened. In particular, these principles should include a Memorandum of Understanding negotiated between local and central government on services to be provided and a revenue sharing programme in order to finance local services. Possibly a time period should be attached to this (every three years).
I also support a written constitution for other reasons. Indeed, the benefits are all too obvious in this very unsettled political time. One only has to look at the protections in the USA constitution that are currently stopping the new President from creating (more) chaos.
We have documented evidence of how the current National-led government in New Zealand has used tools such as urgency in parliament to negate the need for democratic process. While New Zealand may do well on measurements such as those used by NGOs such as Transparency International, the reality is that when compared to other liberal democracies, we have a highly centralised political system with very limited devolution of public services.
A written constitution would provide New Zealand with a distinctive national identity but it would also need to be accompanied by a move to a Republic. We saw with the flag debate that much of the opposition to the proposed change was based on it being separated out as a single issue rather than part of a wholesale shift to change. Becoming a republic would definitely mean we had grown up. A Head of State should be selected across Parliament as the Governor General used to be.
If a referendum is held it would need to be based on a single majority of more than 50 per cent.
A written constitution should include a requirement for civics to be part of the basic education starting in primary school in New Zealand.
Dr Jean Drage is an Adjunct Senior Lecturer in the Department of Environmental Management at Lincoln University. Her most recent publications include A Balancing Act: Representation and Decision-Making in New Zealand’s Local Government (2008) and two co-edited books Local Government in New Zealand: Challenges and Choices (2016) and Along a Fault-Line: New Zealand’s Changing Local Government Landscape (2011).
The discriminatory nature of New Zealand’s adoption laws shows the importance of constitutional protection for human rights, says Wellington lawyer Joss Opie
The Bill of Rights should be included in a written constitution to ensure Parliament cannot legislate away human rights, argue Sir Geoffrey Palmer and Dr Andrew Butler.
Is it okay for Parliament to limit human rights without bothering to consult the people affected?
In 2013, many New Zealanders asked an independent constitutional review panel for stronger protection of their human rights, and the panel recommended change. Three years later, the United Nations made similar recommendation. When will New Zealand act?
The turmoil in America shows the need for constitutional checks and should spur NZ to adopt a codified constitution, writes Sir Geoffrey Palmer.