New Zealanders don’t discuss their constitution because they can’t find it. It needs to be written in one place, argues Sir Geoffrey Palmer.
The existing New Zealand Constitution derives from the Westminster model. In 1852 the Imperial Parliament enacted the New Zealand Constitution Act 1852. Five years later responsible government was conceded. The 1852 Act lasted until 1986 when New Zealand enacted the Constitution Act 1986. By that time it was reduced to a rump of its former self, with only 12 provisions and these offered few clues on how the New Zealand government actually worked. Nevertheless, over the years on a couple of occasions statutory enactments were held in the courts to be inconsistent with the 1852 Act. The 1986 Act was followed by the New Zealand Bill of Rights Act 1990 that had some influence on the architecture of the United Kingdom’s Human Rights Act 1998. Despite these efforts, most of the New Zealand Constitution, like that of the United Kingdom, is not written down in one place the way most constitutions are.
There have been significant constitutional reforms in New Zealand, beginning with the establishment of the Office of Ombudsman in 1962. Since then the following developments have occurred:
- The Official Information Act 1982
- The Constitution Act 1986, which you may think sounds like a Constitution. It sets out the main features of the system. But it is skeletal and does not look like a written Constitution as that term is generally understood
- The New Zealand Bill of Rights Act 1990
- Various parliamentary reforms
- The introduction of the Mixed-member proportional system of electing members of parliament based on the German model
- Development of measures to recognise the Treaty of Waitangi between Māori and the Crown and to provide for redress of grievances suffered by New Zealand’s indigenous people.
New Zealanders think little about their constitutional arrangements and hardly ever discuss them. There is good reason for this. They cannot find their Constitution. It is not in one place. It is obscure in many respects. The current New Zealand Constitution consists of a hodge-podge of rules, some legally binding, others not. It is formed by a jumble of statutes, some New Zealand ones and some very old English ones; a plethora of obscure conventions, letters patent and manuals, and a raft of decisions of the courts.
There has also been much academic and professional commentary on constitutional practice, all of it hard to find. Other than parts of the Cabinet Manual, which has no legal status, no attempt has been made to bring the sum of the parts together.
An interested person cannot find a clear and coherent statement of the whole framework within which political decisions are made. Surely this is not good enough in a modern, mature democracy? That is the conclusion Dr Andrew Butler and I have reached. So on 21 September 2016 our book A Constitution for Aotearoa New Zealand will be published by the Victoria University Press in New Zealand. It will be accompanied by a website at www.constitutionaotearoa.org.nz.
On publication date the website will contain the draft Constitution and the reasons why it should be adopted. We then plan to take submissions and feedback from the public and make adjustments before an attempt is made to have it considered further. We thought the recent referendum on the flag in New Zealand disclosed a taste for some constitutional dialogue.
In the development of this project we have derived much help from Professor Robert Blackburn QC and the project he led for the House of Commons that produced in 2014 the rich report, A New Magna Carta? Professor Blackburn also organised a seminar of constitutional lawyers to consider an early draft of ours in February 2016 and we found that extraordinarily helpful.
In this project we have not contented ourselves by simply writing down the existing arrangements in one place. We have made suggestions for change in order to bring the Constitution up to date as well to improve accountability. To give a flavour of the range of the project here are the major components of Constitution Aotearoa New Zealand:
Part 1 The State
Part 2 The Head of State
Part 3 The Government
Part 4 Parliament and the Legislature
Part 5 The Judiciary
Part 6 Law-Making
Part 7 Finance and Taxation
Part 8 International Relations
Part 9 Defence and Security
Part 10 The Treaty of Waitangi
Part 11 The Bill of Rights
Part 12 Other State Institutions
Part 13 Integrity and Transparency
Part 14 Adoption and Amendment
Part 15 Emergencies and suspension of parts of the Constitution
Part 16 Transitional provisions
The proposal does not provide for a second chamber in the parliament – New Zealand has been unicameral since 1950. But, in order to enhance parliamentary scrutiny of legislation, other measures are proposed.
In New Zealand there has been an unbroken practice since 1956 that certain provisions of the Electoral Act that are fundamental fundamental to democracy should not be changed without a referendum of the people or by a 75 per cent majority in the House. We extend this principle of entrenchment to the whole of the proposed Constitution. That is to say, the Constitution can be amended either by a referendum of the people or by a 75 per cent majority in the House of Representatives. A Constitutional Commission is proposed to review the document every 10 years.
It needs also to be appreciated that a written, codified Constitution cannot save New Zealand or any nation from political disasters. A constitution can restrain the use of power but it cannot prevent intolerance, bad behaviour or cynicism about government. Nor can it stop all abuses of power. And it is worth bearing in mind the warnings of a famous American, Judge Learned Hand who said:
Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it.
While the written, codified Constitution we propose will be higher law, it does in the end give the last word to the House of Representatives where it can muster a 75 per cent majority in the House.
This blog was first published on 18 August 2016 on the website of The Constitution Unit, University College, London.