New Zealand’s “dangerously incomplete” constitution means Parliament can pretty much do what it likes on a simple majority, so is the newly written Constitution Aotearoa the way to go?
New Zealand’s constitution is a legal hodgepodge. It’s made up of dozens of bits of law, strewn across various statutes, international treaties, court decisions, conventions and legal instruments.
The problem, argue constitutional experts Sir Geoffrey Palmer and Andrew Butler, is not that we don’t have a constitution – even though many people think we don’t – but that it is “dangerously incomplete, obscure, fragmentary and far too flexible”. And, they believe, fearfully short of constraints on executive and parliamentary power.
So what’s the worst that could happen? “Well, you could introduce a piece of legislation that removed everyone’s civil liberties for a year, said that they were subject to arbitrary arrest, and things of that nature. And you could pass it through urgency on the grounds that you have some sort of fuss that you have to stop,” says Palmer. Under our current constitutional arrangements, “there is no limit on what the Parliament can do, and when they can do it”.
With a simple majority of MPs – 61 of the 120 in the House – “Parliament can make, repeal or amend almost any law that it pleases, including any constitutional law [with the exception of six provisions of the Electoral Act, which require a 75% majority]”, write Palmer and Butler in A Constitution for Aotearoa New Zealand, in which they present a draft written constitution that they hope will trigger a national debate.
New Zealand is so exposed to the whim of majority rule that even the Constitution Act 1986 and the Bill of Rights Act 1990 could be repealed by Parliament in a single sitting day of the House under urgency, without public input.
If that sounds like scaremongering, consider this real-life example of Parliament’s willingness to use the power of a simple majority to strip citizens of basic rights. Three years ago, the New Zealand Public Health and Disability Amendment Act was passed in a single parliamentary sitting day. It followed a Court of Appeal decision that ruled the Government’s policy of refusing to pay family members to care for severely disabled adult loved ones amounted to unjustifiable discrimination under the Bill of Rights Act on the basis of family status.
The families who took the original case had won in the Human Rights Review Tribunal. The Government appealed the decision to the High Court, and the court’s decision went in the families’ favour. The Government appealed to the Court of Appeal, and the families won there too.
The Government then pushed through legislation under urgency on Budget night 2013, removing the right of appeal to the Human Rights Commission and barring the opportunity for judicial review in relation to any family carer policy, no matter how discriminatory. It also blocked any scope for retrospective remedies for past discrimination.
Palmer and Butler describe it as a “shocking piece of legislation” that overturned constitutional protections – yet there was no warning it was coming and there was no public consultation and no select committee consideration.
The rushed law was widely condemned at the time by constitutional law experts, but it remains in place. It’s just one example of how “fragile” our constitutional system is, argue Palmer and Butler.
It’s already happening
Chip, chip, chip. “In any free society, freedom is eroded one little step at a time, not in one big hit,” says Palmer. Consider, for instance, the sacking of the democratically elected Environment Canterbury in 2010 and the sweeping away of “vast swathes of statute law, democratic protections and due process requirements” by the Government following the Canterbury earthquakes.
But why worry about this right now? After all, we seem to have talked ourselves hoarse for decades over whether we need a written constitution, yet there has been no public clamour for change.
That’s just the point, says Palmer. Two public inquiries in the past 11 years have gone nowhere and the reason, he argues, is that there has never been a “model” constitution for people to think and talk about.
A year ago, he and Butler decided to step into the breach and write one, in the hope that the discussion can move from one of abstract legal principles to a consideration of a written draft that is easy to understand and about which all New Zealanders can offer their opinions.
Constitution Aotearoa is the result: 51 pages that set out both the constitutional status quo – codifying the many areas of law that work well – as well as a raft of changes that they believe reflect the modern face of New Zealand and will help to future-proof democratic freedoms.
“What we want to do is try to have a citizen conversation, because the people are the ones who will own this document,” they write. “They are the ones who are affected by government power.”
Butler says it will be an “organic process” supported by a website, Facebook page and Twitter account over the coming year or so, with public comments feeding into a final proposed constitution.
There is no “burning platform” – no constitutional crisis – to force reform. But Palmer and Butler think it’s better to get our constitutional house in order in peacetime than in war; to brace our democratic traditions against the strains and shocks that are sure to come, particularly from climate change-induced social and economic stresses.
How it would work
Constitution Aotearoa is both simple and ambitious. It would make New Zealand a republic, with Palmer and Butler arguing that we are, in effect, already one. Successive prime ministers (including David Lange, Jim Bolger, Helen Clark and John Key) have spoken of the inevitability of becoming one; even Sir Jerry Mateparae, the outgoing Governor-General – the Queen’s representative – said recently that a republic was inevitable.
“Becoming a republic will also clarify the values which New Zealand finds important: egalitarianism and merit. A hereditary monarch who holds the position of sovereign and head of state for life, just by dint of being born into a particular family, goes against those values,” argue Palmer and Butler.
Instead of a Governor-General, there would be a Head of State elected on a free vote in Parliament. The parliamentary term would be four years, which Palmer says would reduce the need to pass laws in a rush and enable better-quality lawmaking. Parliament would be able to go into urgency only on a 75% vote in the House.
The royal prerogative – powers held by the Queen and her agents (yes, they still exist) – would be ditched.
The proposed constitution could be amended by a 75% majority in Parliament or by a public referendum where 50% of voters supported change. This principle already applies to electoral law, with the voting system only able to be altered by a popular referendum or a three-quarters vote in the House.
The courts would have the power to strike down Acts of Parliament judged to be inconsistent with the constitution. But Parliament would still have the final say and could write law to overrule a court decision if there was a 75% majority.
The appointment of judges would be overseen by a proposed Judicial Appointments Commission, to ensure the selections were transparent and free of political influence.
The Treaty of Waitangi would be incorporated into the Constitution, making its legal position clear and putting it beyond short-term political “temptations … to reduce Maori rights”. And although the constitution itself could be changed, the text of the Treaty could not be amended.
A new Information Authority would take over from the overworked Ombudsman in reviewing complaints under the Official Information Act (which usually relate to tardiness or refusal of government agencies to release information) and ensuring the Act is being complied with.
The Human Rights Act and an enhanced Bill of Rights Act would also be entrenched in the constitution, which would mean a bare majority in Parliament couldn’t override civil and political rights or the right to freedom from discrimination. It would also mean the courts could strike down legislation that infringes those rights.
Palmer and Butler’s proposed constitution also includes the right to an environment that is not harmful to health or well-being – a potent legal tool that could conceivably see citizens asking the courts to rule on issues such as water quality, where regional council rules or national policy statements fall short of protecting ecological health. More than 80 countries have already reformed their constitutions to provide recognition of environmental rights, they say.
Their proposal would also see socio-economic rights – to housing, work, health and an adequate standard of living – embedded in the constitution. “When one does not have adequate food, shelter or health, protecting rights such as freedom of expression can appear to be a luxury or, worse still, an irrelevance,” they write.
Alleged breaches of socio-economic rights couldn’t be taken to court – “you can’t write the Budget through the courts,” says Palmer – but their recognition in the constitution would create a “moral authority”.
Already government officials have to advise whether proposed new laws comply with international human rights, including economic and social rights, but Palmer and Butler say including these rights in the constitution would affirm their status as core values of New Zealand society. “Citizens would be able to draw on them to make state institutions accountable.”
A useful handbrake
But what tangible difference would all this make? New Zealand is one of only three democracies without a formal written constitution – along with the UK and Israel – but we’ve done pretty well without one, haven’t we? We need only look north to Fiji, where opposition leaders were arrested last weekend for trying to discuss that country’s constitution, to see that the existence of a written constitution does not guarantee democratic freedom. And consider the Americans, with a constitution that seemingly enables the repeat tragedy of mass shootings by entrenching the right to bear arms.
It’s true that constitution alone can’t coup-proof a country or protect against tyrants and intolerance, say Palmer and Butler. They cite the American judge and philosopher 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.”
If New Zealanders are determined to go to hell in a handcart, the constitution won’t stop them, agrees Palmer. “But it can put the brakes on. It can stop you descending quickly. And it can be a place where you rally support for legitimate government.”
It’s important not to claim too much for the power of a written constitution, they acknowledge, “but that does not mean nothing should be claimed for it. Public power ought not to be at large, untethered and without anchors.”
As for the argument that a written constitution would give too much power to unelected judges, they say their proposal is very different from the US Constitution, where the Supreme Court effectively has the last word. There, a Supreme Court decision can be overridden only with the support of Congress and three-quarters of the 50 states – which explains why the US Constitution has been so infrequently amended in 225 years.
By contrast, the proposed Constitution Aotearoa would allow a three-quarters parliamentary majority or a simple majority of voters at a referendum to overturn a constitutional decision of the courts.
Protecting our pluralist society
Although New Zealand doesn’t face a constitutional crisis, Palmer worries about the corrosive effect of apathy and disinterest. “Modern life involves much less reflection than it used to. People don’t have much information about what the Government is doing. And the news media provides very little discussion of politics and even less of policy. So voters are not aware of what their Government is doing. That is going to be very destructive of the democratic ethos over time …
“Levels of voting are going down. There is something of a crisis about Western democracies. You have Brexit, you have Trumpery. These things are extremely destructive of the democratic ethos. And democracy is about more than voting. It’s about due process, it’s about doing things in a proper principled way and knowing what those principles are.”
In the past, New Zealand might have been able to rely on consensus politics to keep things on track, but we can’t necessarily rely on that in future. The fact that a quarter of New Zealand’s population – and 39% of Auckland’s – was not born in this country suggests that the values that underpin the country’s political and social traditions can’t be taken for granted and that the rules and principles that govern us need to be made explicit.
“The conformist society, the idea that we all know what we’re about – it’s not like that now,” says Palmer. “If you have a pluralistic society, you have to have a set of warrants of fitness about what it is that the government can do to you, what it can’t, what your rights are and what your obligations are.”
A Constitution for Aotearoa New Zealand, by Geoffrey Palmer & Andrew Butler (Victoria University Press, $25).
www.constitutionaoteoroa.org.nz; on Facebook; on Twitter.
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