Keynote address by Sir Geoffrey Palmer QC to the Victoria University of Law Symposium on Quasi-Constitutionality and Constitutional Statutes

19 May 2016

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Introduction

This paper is in the nature of a report upon work in progress. For some time now Dr Andrew Butler and I have been engaged on a project that aims to produce a draft written, codified Constitution for New Zealand. We hope to publish it with supporting commentary later in 2016. It will be published by the Victoria University Press.

The project has no official status, although it is supported by the New Zealand Law Foundation. The project was borne of our shared belief that the discussions in New Zealand concerning the constitutional system and constitutional reform were handicapped by the lack of a developed model to discuss. The New Zealand constitutional arrangements have been reviewed twice without any tangible result, first in 2005 and then in 2013. We aim to provide a model and stimulate the debate. New Zealand’s Constitution needs to be modernised.

The New Zealand Constitution Act 1852 (UK) enacted for New Zealand what 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 Provincial Governments in 1876. So the 1852 Act ended up, before being repealed and replaced by the Constitution Act 1986, with only 12 rump provisions left and these provided almost no guidance on how the country was actually governed.

The Constitutional Society, following the abolition of the unelected upper house the Legislative Council in 1950, developed a proposal for a written constitution. Later they added a bill of rights and a package was offered by the National Party in its 1960 election policy. The proposal was dropped after a Select Committee examination. The issue was re-examined by Parliament in 1963 but the proposed constitution was rejected.

Since that time there have been significant constitutional developments:

  • 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 Crown and to provide for redress of grievances suffered by New Zealand’s indigenous people.
  • This paper aims to discuss some of the issues that arise in a project of this type.
New Zealand’s constitutional profile

New Zealand is a constitutional monarchy in which Queen Elizabeth II is the titular head of state. A Governor-General nominated by the New Zealand Government carries out her functions here. The Queen has many legal powers that are in practice exercised on the advice of responsible Ministers. It has been authoritatively stated that the underlying principle of the New Zealand Constitution is democracy: the Queen reigns, but the government rules so long as it has the support of the House of Representatives. The House has 121 members elected under the mixed-member proportional representation electoral system. New Zealand is unicameral-the House of Representatives is the only house.

Seven political parties are currently represented there. Under the electoral system that came into effect in 1996 usually no party can form a majority single party government, as was formerly the case under the first-past-the-post electoral system. The habit has developed that a minority government governs with confidence and supply agreements with minor parties, representatives of whom may occupy ministerial roles outside Cabinet.

The Parliament is elected every three years and enjoys what is known in Westminster systems as “parliamentary sovereignty.” It has full power to make laws that must be assented to by the Governor-General. The Executive comprises Cabinet, headed by the Prime Minister with 20 Cabinet Ministers, seven ministers outside Cabinet, and one parliamentary under-secretary. The public service carries out the instructions of Cabinet. There is in addition a wider state sector, including the New Zealand Police and armed forces comprising a navy, army and air force. There is an independent judiciary with the Supreme Court sitting at the top of the judicial pyramid. The Constitution Act 1986 is the main constitutional statute, but very short.

The New Zealand Bill of Rights Act 1990 is not entrenched. It can be and is from time to time overridden by legislation. Under the Act the courts are explicitly prohibited from striking down statutes. The courts have no power in New Zealand to strike down statutes. Neither of these two statutes are protected from amendment by a simple majority in the House except for the three year term of Parliament.

It is fair to say that New Zealand’s Constitution is highly flexible, that it evolves with political developments, it has few fixed anchors and it is very hard to find.
Compared with Constitutions overseas New Zealand’s is highly unusual, resembling most that of the United Kingdom. But the resemblances are becoming increasingly distant and the political cultures are quite distinct from one another.

The sources of New Zealand’s Constitution

One key difficulty with the New Zealand Constitution is that it cannot be found in one place. The difficulties in this regard are marked. Dr Matthew Palmer QC (now Palmer J) 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 instruments, one legislative instrument and half a judicial instrument.

The list raises the issues of exactly what measures are to be regarded as constitutional and what not. No authoritative methods exist under New Zealand’s constitutional arrangements to say what is constitutional and what is not. So in New Zealand saying a step is “unconstitutional” is a political statement not a legal one. The search for normative standards in such a constitutional context is fraught.

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. 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.

In short, accessing the basic material required to understand the current New Zealand Constitution is both arduous and frustrating. It is unsurprising then that New Zealanders speak little of their Constitution and think about it even less. Indeed, it might seem that the Constitution is deliberately kept something of a mystery so people will not bother about it. New Zealand’s existing Constitution is so widely dispersed as to be a serious problem.

Concern about the inaccessibility of the most basic rules of how we govern ourselves is neither new nor idiosyncratic. One of New Zealand’s leading historians, Professor J C Beaglehole, warned as far back as 1944 of the New Zealand Constitution being “some silk-wrapped mystery, laid in an Ark of the Covenant round which alone the sleepless priests of the Crown Law Office tread with superstitious awe”.

Fast forward 70 years and that concern remains valid. Two recent official inquiries — one by a parliamentary Select Committee chaired by the Honourable Peter Dunne in 2005 and the other by a Government-appointed panel on constitutional issues in 2013 — agreed that New Zealanders do not understand their own Constitution. Inaccessibility is a major contributor to that sorry state of affairs.

The Constitution is the foundation of law and politics in any country. It should be easy to find, so that people know the basic rules by which they are governed and public power is regulated. New Zealand is one of the few countries in the world where a citizen cannot go to a single source of those rules. In the modern age it is frankly shocking that that is so. There are only two other countries in the world that have constitutions as fragmented, unorganised and uncodified as we have. This alone suggests that putting all the rules in one place is the minimum that needs to happen.

The most fundamental aim of this project is to state the Constitution in one place so that it is certain and accessible for everyone. The unfilled spaces in our Constitution need to be coloured in. People should be able to know and see the rules that govern those carrying out public duties. People should know what their fundamental rights are and how to enforce them. A single basic law, accessible to all, allows that to occur. In this regard we echo the words of Professor Robert Blackburn of King’s College London, who has been of great assistance to us in this project:

“The primary argument for a written Constitution is that it would enable everyone to know and see what the rules and institutions were that governed and directed ministers, parliamentarians, civil servants and all senior state officials and public office holders, in performing their public duties.”

It is long since past time New Zealand should make its Constitution clear and accessible. That need is now compelling in contemporary New Zealand. The ethnic and cultural composition of the people who live here is fundamentally different from what it was 50 years ago. It will change further in the future. Nowadays so many of us who call New Zealand home were born and bred overseas in very different constitutional systems. It is only right that we make our system known and knowable.

While New Zealand is exceptionally unusual compared with other nations in not having a written codified Constitution, many New Zealanders probably feel they have more pressing matters with which to be concerned. We will need to persuade people that while New Zealand is a successful country, it would be more successful and better governed if there were constitutional change. Our proposal is not meant as a simple restatement of our constitutional framework as it is now. There are also important aspirational and reformist aims in this project.

The changes we will put forward we believe are a necessary part of preserving democratic freedom in New Zealand, and of protecting the fundamental principles which anchor public power and strengthen government accountability.

So the first point upon which it is necessary to prevail is the demonstration that the current situation is unsatisfactory. The New Zealand Constitution is neither accessible nor certain. So we aim to set out the rules, principles and processes about government in one document so they are accessible, available and clear. That will involve eliminating the need for significant unwritten constitutional conventions and customs which are in important respects unclear. So the first aim of the project will be to remove the mystery and provide an accurate map about how we govern ourselves.

Existing Constitution too flexible?

Accessibility is not the only problem with our current arrangements. New Zealand’s present Constitution is dangerously incomplete, obscure, fragmentary and far too flexible. It remorselessly evolves with political developments and is subject to few limits. It evolves in obscure and unpredictable ways that are not transparent. That is the trouble with such a political constitution. The Constitution is not fully fit for purpose in the political and social realities of modern New Zealand. That needs to change. New Zealand needs a Constitution fit for the modern age.

Unlike almost all other countries, nearly all of New Zealand’s constitutional rules can be altered easily. That is because:

  • In New Zealand 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. Unlike the position in most other representative and participatory democracies like ours New Zealand judges cannot invalidate any such law on the ground that it is unconstitutional.
  • We have a unicameral Parliament. This means laws can be made at great speed as there is no second House to act as a check. And there is no requirement at all for Government to consult with 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 of the day.

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. Such an occurrence in unlikely, but abuses have occurred.

For example, in 2013 Parliament enacted the New Zealand Public Health and Disability Amendment Act (No 2) in a single sitting day. Its principal effects were first to prevent anyone ever making a complaint to the Human Rights Commission or bringing a court proceeding against any Government family carer policy no matter how discriminatory, and second, to exclude retrospectively the provision of remedies for past discrimination. It followed a decision of the Court of Appeal that had upheld human rights of some of the most vulnerable people in our community – the disabled and family members who cared for them. There was no warning that the Bill was to be introduced; there was no public consultation on it; there was no Select Committee consideration of it. By any measure, it was a shocking piece of legislation that ousted well-known constitutional protections and removed New Zealand citizens’ rights to be free from discrimination in certain cases. Yet it passed in a single sitting day despite an almost immediate public outcry about it. Only another Act of Parliament can alter or remove it. That is how fragile the New Zealand constitutional system currently is.

The dangers of claiming too much

New Zealand has one great advantage over some other countries in fashioning a written, codified constitution. It is a unitary state not a federation. Federations, such as Australia and the United States, have states. These states have complicated power relationships with the federal government. The powers of each have to be made clear and there is extensive and continuing argument over which unit of government should be carrying out various functions.

This often takes the form of frequent and contentious litigation in federations. While we propose strengthening local government in New Zealand, we think New Zealand should remain a unitary state. We are only 4.5 million souls and federalism would not be a congenial form of government for us.

No constitution can give an accurate description of every feature of the complicated nature of modern government in New Zealand. What a constitution can do is to state the principles upon which governance is based and allocate the division of powers between the principal institutions of government. It must state and settle the most basic issues about how to organise the government. It needs to define the sources of power and their location. It should provide a code of normative behaviour for the institutions, officers and agencies of the state.

The manner in which this is accomplished in a proposed Constitution needs to reflect the fact that a Constitution is for the whole community and not merely part of it. It must establish a framework that accommodates as wide a range of political views as possible. The views of people on many issues differ greatly and the Constitution must serve the interests of all of them.

So while it can be tempting to use the Constitution as a vehicle for improvement of policy and to advance particular policy agendas, constitutions should confine themselves largely to constitutional policies. In the New Zealand context it is important to recognise the reality of the exercise of political power in the existing political culture. On the other hand what should constitute a “constitutional policy” is a topic upon which reasonable minds will differ.

The restricted range of what can properly be regarded as constitutional issues rules out the inclusion of many pet policy concerns that people may wish to see included. A Constitution needs to leave wide room for governments to change policies and meet new demands. It needs to recognise the reality that matters change and that a constitution must not constitute a strait-jacket, preventing a response to challenges not foreseen when it was drawn up. Any Constitution must continue to live.
We need to remember we have in New Zealand approximately 65,000 pages of statute law, as well as numerous other regulations or legal instruments. One cannot expect to include much of what is contained in Acts of Parliament in a Constitution designed to be higher law. If it is not higher law there is little to be gained from enacting it since everything could be altered at any time with a majority of one in the House of Representatives. The selection of subjects that are not appropriate for a Constitution is not an issue we have found to be easy. There is a temptation to put too much in and make it too prescriptive.

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, or 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 is likely in the end to give the last word to the House of Representatives. If New Zealanders are determined to go to hell in a hand cart then, in the end, the Constitution will not stop them, although it will slow them down. And we should not undervalue the qualities of sober second thought.

It is then important not to claim too much for a written, codified Constitution, but that does not mean nothing should be claimed for it. Public power ought not to be at large, untethered and without anchors. A Constitution based on history and custom is not sufficient in the modern age. While a written, codified constitution cannot fill in the whole picture concerning the use of power in a democracy, it can place limits upon its exercise.

What we are seeking to design is a New Zealand Constitution that “holds the exercise of government power must be controlled in order that it should not be destructive of the very values it was intended to promote.” It must be a flexible instrument dependent upon the social and political values of the people who live here. It must protect the freedom of responsible individuals. And readjustments must be made in response to the constant drumbeat of social and political change. So the manner in which the norms and values are expressed in the Constitution ought not to be overly prescriptive or restrictive. On the other hand the habit of Westminster styled Parliaments is to enact legislation of a highly prescriptive nature.

So this Constitution aims to advance institutions that are open and transparent. It must create efficient mechanisms of accountability. It must provide for free and open democratic elections for MPs and local government members. It should ensure that government is designed to be effective.
Public participation and involvement in decision-making should be encouraged. Having an accessible Constitution, as we propose, should advance this value. We need to ensure that the institutions can be trusted and are legitimate.

The State and the Crown

One of the challenges of New Zealand constitutional law is deconstructing the many meanings of the term “the Crown.” The term the “Crown” is a compendious, ambiguous and variable term in New Zealand constitutional law. The terms “Crown”, “Majesty”, “Sovereign”, and “Governor-General” runs throughout the statute book and in many different contexts. In literal terms the “Crown” is what the Queen wears on her head on State occasions as a badge of office. And that is not what we mean when we use the term in relation to government. In New Zealand we tend to hear much more about the Crown than about the State. This is perhaps the most perplexing feature of our system for the people not brought up here and I would say also for many New Zealanders.

The Queen is a constitutional monarch. Government is conducted in her name and under her legal authority. In New Zealand virtually the whole of government is carried out in the name of the Queen. The Queen is part of Parliament, she is the fountain of justice so the Judges are the Queen’s judges, and she is the titular commander-in-chief of the armed forces. Government bodies that operate under ministerial or departmental authority are connected to the Crown. As the Public Sector Act 1988 puts it “all instruments of the Crown in respect of the Government of New Zealand.”

These great legal powers are tempered by the fact that the Queen acts upon the advice of Ministers who must be Members of Parliament. Members of Parliament have to be democratically elected. The royal prerogative that comes from the Queen, is a source of power for her Ministers.

We have inherited all this from English law and we have altered it very little. The Governor-General in New Zealand acts here on behalf of the Queen and in her name. He is her representative. She is Queen of New Zealand, separate from her role as Queen of the United Kingdom. There are complications involving multiple Crowns in different jurisdictions but these cause little practical problem. The Queen is also Head of the Commonwealth, although no legal powers attach to this position. The meanings given to the Crown have shifted over time. Sometimes the Crown has been employed as a means of protecting the government from legal liability by using Crown immunity. “The Queen can do no wrong” is an oft repeated principle of English law. The Queen is Head of State. This is distinct from the Queen personally.

In some ways the term “Crown” is equivalent to the “State” but in some respects there are important differences. In most European countries public administration is carried out in the name of the State but in New Zealand it is under the legal authority of the Crown. English law has traditionally seen the Crown as a corporation sole, although in recent times there has been a tendency to describe the governmental concept of the Crown as a corporation aggregate. It is our view that the wide use of the term “the Crown” in New Zealand is confusing and obscures many different realities concerning the use of public power. Matters would be much more straight forward legally and politically if we used the term “State.”

A New Zealand Law Professor Janet McLean has written the leading work in English law on this subject. She sums it up in this way:

“There is a state tradition in British legal thought. It is contested, adaptable and complex. These features have given it flexibility to adjust to changes in state institutions and functions. At times, though, we have been at risk of losing useful intellectual resources which could help us face contemporary challenges.”

The Crown in New Zealand wears so many hats that it is a source of considerable confusion and obscurity. What we are contemplating doing is replacing the Crown with a legal entity the State, which has a legal personality of its own right as is the case in overseas jurisdictions. We propose the State and sourcing its powers in this way:

Part 1 Supremacy of the Constitution

1 Constitution is supreme
(1) Where there is an inconsistency between any law and any provision of this Constitution, the provision of this Constitution prevails.
(2) The term “law” for the purposes of paragraph (1) of this Article means all or part of any Act of Parliament, Order in Council, statutory instrument or any other subordinate legislation, any principle or doctrine of the common law of the State or any other legal rule or principle arising from a source of law recognised by the courts.

Part 2 The State

2 The State and nation of Aotearoa New Zealand
(1) The nation known as New Zealand in the English language or Aotearoa in te reo Māori is referred to in this Constitution by the composite name of Aotearoa New Zealand.
(2) Aotearoa New Zealand is an independent, democratic state that functions under the rule of law and is committed to the task of building a successful nation.
(3) The exact boundaries of the State territory are determined from time to time by or under Act of Parliament.
(4) The State of Aotearoa New Zealand (in this Constitution referred to as “the State”) is a legal entity with a legal personality and has the rights, powers and capacities of a natural person of full age and capacity.
(5) The rights, powers and capacities of the State that flow from the legal personality of the State conferred by paragraph (4) may be exercised only for the purpose of doing anything that is required for, or that is incidental to, or consequential on the performance of a function conferred by law on the Government.

We note that it is possible to retain the monarchy and create the State. The important point here is to ensure that the nature of the powers of the State are clear and the nature of the executive authority exercised by the Government is also clear.

There has been academic and judicial controversy in New Zealand about the so called third source of power. Can the Crown, or now the State do anything that natural person can do? There is a divison of judicial opinion on this issue in New Zealand.

In an important judgment the Chief Justice of New Zealand took the position that had been approved in England, initially enunciated by Laws J:

“For private persons, the rule is that you may do anything you choose which the law does not prohibit. It means that the freedoms of the private citizen are not conditional upon some distinct and affirmative justification for which he must burrow in the law books. Such a notion would be anathema to our English legal traditions. But for public bodies the rule is opposite, and so of another character altogether. It is that action to be taken must be justified by positive law.”

McGrath J in an earlier case thought the approach in the passage above was restricted to local authorities and he endorsed the view that the Crown has the powers of natural person that could then be relied upon by the Police. There have been three appellate cases in New Zealand in 2014 analysed by Professor Bruce Harris of the University of Auckland. He takes the view that the third source of power exists, that allows the Executive Government to act without explicit authority in some situations. He argues there is a growing, but not unaminously supported, momentum of judicial recognition in New Zealand and the United Kingdom of the excecutive having a residual freedom to take some actions that are not authorised by positive law.

Professor Philip Joseph from the University of Canterbury argues that such a source of power is dangerous to the values of the rule of law and that all public action must be positively authorised by law, that is to say legislation, the royal prerogative or the common law.

This state of affairs raises some difficult issues for constitution drafters in New Zealand. The State is one thing, the Government is another. The model that was most influential in our thinking has been the third of three models put forward in the A New Magna Carta? project in the United Kingdom, a written Constitution. This was advanced in the work done for the House of Commons Committee under the supervision of Professor Blackburn. In that draft the Government received the powers of a natural person. So we adopted that in early drafts:

“The Government has all the rights, powers and capacities of a person of full age and capacity, in addition to the rights, powers, and capacities conferred by this Constitution and by or under Act of Parliament, subject to the terms of this Constitution, any Act of Parliament and the judicial principles of public law.”

We have taken in our most recent draft a more qualified position as can be seen in the drafted text above. We have given the State the powers of a natural person but not the Government and under our present proposal it could only be exercised to engage in functions authorised by law or to do things that are incidental to those functions. In particular, we think Parliament has to authorise the powers received by the Police. This is an iterative project and we are open minded. Views are welcome.

Other Topics

I do not have the time to develop in detail all the other topics that have to be canvasssed and provided for in this project. I will set out the major topic headings that we are working on to give a flavour of the range and complexity of the project.

Preamble
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

Conclusion

We aim to publish a written constitution “that demarcates the institutions and powers of government, the boundaries between executive, legislative and judicial and set out the rights of ordinary people in their relationship with the bureaucracies of state and in their means of involvement.” That is the principle upon which we have selected what to include in the draft Constitution and what to exclude.

We believe it is not only feasible to carry out the task, we think it is desirable. How such a project can be projected into the public mind and ultimately into the decision-making system is a topic for another day. Constitutional change is a long game. I have been at it for many years during which time the caravan has moved on. Fresh times demand new measures.

Opinions will differ on what precise powers should be distributed where and this is an important reason whereby we propose to take comments and submissions from the public before we express our final view in 2017 on what should be in a Constitution for Aotearoa New Zealand. We shall have a website for that purpose.