New Zealand’s system of checks and balances on state power is sadly insufficient, write Sir Geoffrey Palmer and Andrew Butler.
New Zealand’s system of government is based – at least in part – on the principle that the power to govern is distributed over the three branches of government: legislative, executive, and judicial.
Put simply, Parliament makes law, approves funding for the business of government, and holds the government to account. The Government implements laws, makes policies, and delivers services. The Courts interpret and apply law.
This system ensures that state power is never fully concentrated in one person or group. Parliament makes laws but doesn’t implement them. The Courts make judgements, but only in accordance with the law and only about individual cases brought before them. The Government is made up of Members of Parliament. It is responsible to and accountable to Parliament, can only govern if it has the confidence of Parliament, and is dependent on Parliament for funding.
Parliament sits at the top of this pyramid. It makes the law that other branches of government implement or interpret.
Another constitutional doctrine, that of parliamentary sovereignty, means that the legal power of Parliament is more or less unlimited. Parliament can legislate without restriction. It is supreme.
A simple majority of MPs in Parliament has the power to make, repeal or amend almost any law that it pleases, including any constitutional law.
We have a unicameral Parliament, which means our Parliament consists of one house only, the House of Representatives. This means laws can be made at great speed as there is no second House to act as a check.
In most democracies, judges can invalidate laws that are unconstitutional. New Zealand judges cannot do that.
Ministers can be held to account in Parliament, through question time, Parliamentary debates, and scrutiny of legislation, policies, and funding proposals.
But Parliament’s effectiveness at holding ministers and the Government to account can be limited because much of its activity revolves around political party fighting and jockeying for political advantage.
Members of Parliament on the Government side do not see themselves as holding the Government to account; they see themselves as foot-soldiers of the Government, helping it and defeating opposition arguments and policies.
Political ideologies also play a big role in the debates and often get in the way of analysis of the facts and whether policies are working well or not.
It cannot be said that Parliament holds the Government to account effectively over a wide range of issues.
On the contrary, the Government still has a high degree of control over Parliament’s lawmaking programme.
Under the first past the post electoral system, one party controlled a majority in Parliament and formed the Government, so parliamentary supremacy was effectively wielded by the Cabinet.
Under MMP this has continued to be so. MMP has reduced Cabinet’s power, because the Government typically has to negotiate with other parties over confidence and supply, and over each piece of legislation (a process that involves trade-offs, many of which are far from transparent).
However, the challenge to Cabinet power offered by MMP has been largely seen off. Cabinet and the Executive have resumed the strong position they have usually occupied in New Zealand. In theory New Zealand has parliamentary sovereignty; in substance what we have is sovereignty of the executive government.
The main cause is the small size of the House of Representatives compared to the size of the Government. Currently, about a quarter of MPs are in the Executive as Ministers or under-secretaries from National or its support parties. And National MPs who are not in the Government do not see their purpose as holding the Government to account, at least not in public.
So the Government can get its own way on most issues most of the time, given that it will likely have majority support from its party members in the House in most situations.
There is no requirement at all for Government to consult anyone before bringing a Bill before Parliament, and it can use numbers in the House to prevent the Bill, once introduced, from being sent out for public submissions. In short, all of the usual legislative practices can be, and are, overridden where it suits the Government.
Incredible as it may sound, it would be legally possible for our Parliament to repeal the Constitution Act 1986 or the New Zealand Bill of Rights Act 1990 in a single sitting day of the House under urgency, without any public input.
In our view, this is simply unacceptable. Well established rights and protections should be removed only if the people support that (through a referendum), or when there is overwhelming parliamentary support for it.
Governments act to remain in power as long as they can, and they tend to try to get away with whatever they can. The risk is that they will observe no limits so long as there are none. The Government cannot— and should no longer—be relied upon to respect constitutional boundaries.
In our view, the checks against excessive, unfair or unprincipled use of public power in New Zealand provided by the three branches of government against one another are sadly insufficient in a modern democratic society. Change is needed.
The 19th-century notion that Parliament should be able to change any law it likes at speed with a small majority at any time has had its day. People have rights and they should be protected.
A Constitution for Aotearoa New Zealand therefore proposes the adoption of a superior law constitution with a system of checks and balances such as that found in almost all overseas participatory democracies.
Our proposal is for the constitution to be entrenched, so it cannot be amended on the whim of a bare parliamentary majority. It should be changed only by a simple majority of the people at a binding public referendum, or if 75 percent of MPs agree.
The courts will be able to enforce the constitution, by striking down Acts of Parliament that are inconsistent with it. This is a power exercised by almost all courts in overseas democracies, including Australia, Canada, Ireland, South Africa, the United States, almost all Commonwealth countries, most countries in continental Europe and many Asian nations.
Unless most provisions of a constitution can be enforced in the courts, its features are mere window-dressing and a type of public relations programme intended to make people feel good, rather than a document that confers real rights and protections on the people.
This is not to say that Cabinet should not govern, nor that Parliament should not make laws. It is just that some modest limits should be placed on those great powers. Parliamentary sovereignty needs to yield to popular sovereignty and participatory democracy.
In keeping with New Zealand’s tradition of parliamentary sovereignty, we preserve the power of Parliament to have the final say – so long as a significant proportion of MPs are in agreement.
A Constitution for Aotearoa New Zealand also proposes numerous other reforms which define and limit ministerial and government powers, strengthen the rule of law, enhance democratic accountability, protect citizens’ rights, and protect against abuse of power.
Several of our proposals transfer powers or important constitutional decisions from the Government to Parliament, so they can be made by the people’s elected representatives.
Our proposals recognise that public decision-makers must be accountable to the public whom they serve on a continuing basis, whether they be ministers, politicians, public servants, the police, the defence forces or the Judiciary. Elections are but one form of accountability.
They restrict and control the arbitrary use of government power by the provision of ample safeguards against wrongful use of that power.
And they stand above the interests of any particular political party. A constitution must belong to all the people because it is under their will that government must be conducted in a democracy.
Our hope and expectation is that the proposed new Constitution has the capacity to restore some trust and confidence in New Zealand politics and politicians.