Why we don’t support an upper house

History shows that an Upper House is unlikely to provide an effective check on government power, write Sir Geoffrey Palmer and Dr Andrew Butler.

Gareth Morgan’s Opportunities Party recently released its constitution policy, arguing that too much power is concentrated in Cabinet’s hands, and that people are turning away from politics as a direct result.

The party advocates for a written constitution ‘to protect the Kiwi way of life’, incorporating all of the basic rights currently included in the Bill of Rights Act and the Human Rights Act. It also advocates for greater transparency and independence in the public service, honouring the Treaty of Waitangi, and re-establishment of an Upper House with powers to make recommendations about legislation.

According to Dr Morgan, the Upper House would provide a check against Cabinet power, with a particular focus on upholding the constitution.

To give effect to the rights protected by the Treaty, The Opportunities Party proposes to (a) devolve more decision-making to Māori, and (b) give Māori equal representation in the Upper House.

We welcome any contribution to the debate about New Zealand’s constitutional arrangements, and agree with many of The Opportunities Party’s descriptions about the problems arising from New Zealand’s current constitutional arrangements.

We do not agree with the proposal for an Upper House, and we have not included one in our proposed constitution. There are two main reasons.

First, we’re not convinced it would be effective. New Zealand had an Upper House, called the Legislative Council, for many years, and it did not provide an effective check on either the Executive or the House of Representatives. On the contrary, the Council had a tortured history. It was consistently manipulated through political appointments, had little involvement in the key political decisions, and did a poor job at revising and improving legislation.

In theory, it might be possible to design a better Upper House than the Legislative Council. But we haven’t seen a model that is convincing. That is, we haven’t seen a model that would provide an effective check on bad government and legislation. An Upper House is more likely to obstruct government than improve government performance. In modern times, there have been real and continuing troubles with second chambers in both Australia and Canada.

Second, it’s difficult to design an Upper House that is democratic. The Opportunities Party has revived a 20-year-old proposal by Professor Whatarangi Winiata for an Upper House in which Māori and non-Māori are equally represented. We are 100% in favour of constitutional protection for Treaty rights, as our proposed constitution shows. But we are not convinced that the proposed Upper House is the most effective way to protect those rights. Nor, so far as we can see, would such an arrangement enjoy widespread public support.

We agree with Dr Morgan that constitutional reform should not be the preserve of constitutional lawyers, which is why we are encouraging a wide conversation about our proposals. But, equally, we would caution against proposals that fail to heed the lessons of history, or are poorly thought through. The Opportunities Party compared our 46-page constitution unfavourably with the 467-page Constitution of India, claiming that the latter was briefer and more to the point. We’re not convinced that Dr Morgan and his staff had read either document before rushing to print.

While we disagree with The Opportunities Party on some points, we certainly welcome its commitment to constitutional reform and its willingness to bring these issues on the political agenda. The Green Party is the only other New Zealand political party with a detailed policy for constitutional reform (though it has yet to release its 2017 version).

 


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