By Michael Donaldson
Remember that time when a whole bunch of vulnerable New Zealanders had their basic human rights removed by Parliament late one night as the House sat under urgency?
Well, the Health and Disability Amendment Act of 2013 did just that, prompting constitutional law expert professor Andrew Geddis to slam the Government’s actions as “trampling all over a basic foundational principle of our constitutional order”.
But that’s exactly what happens when you don’t have a written constitution to govern the way our law-makers behave, something former prime minister Sir Geoffrey Palmer desperately wants to change.
Along with fellow lawyer Andrew Butler, Palmer is about to release A Constitution for Aotearoa New Zealand, a book that explains – in a surprisingly easy to understand manner – why New Zealand needs a written constitution and what a first draft of that constitution entails.
It has what some would call emotive elements – ditching the Queen as the head of state, locking in a four-year election cycle, enshrining the Treaty of Waitangi – but at its heart is a fierce commitment to both protecting the rights of all New Zealanders and ensuring we all, politicians especially, know and understand the rules by which we run this little club called New Zealand.
Constitution Aotearoa might sound eye-rollingly dry but the fact is New Zealand’s current constitution is, frankly, a mess.
Parts of what could be considered the current constitution are, says Palmer, located in 45 Acts of Parliament, 12 international treaties, nine areas of common law, eight constitutional conventions, several executive orders and other legal instruments. It’s a bit like having your worldly possessions packed in unmarked boxes – you know it’s all there but finding what you want can be almost impossible.
“In a democracy you ought to know what your rights and responsibilities are and you ought to know how the system of government works, you ought to know what the rules are,” Palmer says. “In New Zealand you can’t find out because the constitution is all over the place, it’s inaccessible.
“What you want is a document that sets out who the head of state is and what the head of state does, what the Parliament is, how it’s elected and what it can do and what the judiciary can do.
An elective dictatorship
Bizarrely, New Zealand is one of the few countries in the world (alongside Britain and Israel) that doesn’t have a written constitution. The fact we don’t have a clear set of rules to follow, or any of the checks and balances inherent in a written constitution, means our politicians can do whatever they like as long as they get a majority in the house.
Great Britain at least has the House of Lords to act as a checkpoint for legislation while Israel has 11 basic laws that set out how the country should be governed.
Without those rudimentary measures, New Zealand is open to a worst case scenario where one powerful person could influence Cabinet, which in turn controls Parliament, which enacts laws the courts cannot overturn … if you think it sounds like a dictatorship you’re not far wrong.
“Lord Hailsham [in 1976] described the British system as an elective dictatorship,” Palmer notes, “and the elective dictatorship in Britain has never been as strong as it has been in New Zealand.”
The potential for that dictatorship has been muted by MMP but “New Zealand is still very friendly to executive power”, Palmer says, meaning Cabinet can turn anything it fancies into law.
“There are considerable dangers in that,” he adds. “Parliament can easily be dominated by the governing party, and Parliament will do what the governing party wants. The system we call parliamentary sovereignty, which means Parliament can do whatever it wants, becomes, in New Zealand, that the executive [Cabinet] can do whatever it likes.”
Palmer uses the 2013 Health and Disability Amendment Act as an example of how basic rights can be quashed in a political blink of an eye.
The Act was a response to a Court of Appeal ruling that the Government had to pay a minimum wage to family members who cared for disabled children. Rather than argue the case in court, the Government simply changed the rules late one night under urgency.
The Act now prevents anyone from even making a complaint to the Human Rights Commission about the Government’s family carer policy, let alone bringing a court case to challenge the policy. National made the vote a matter of confidence, forcing its support parties to toe the line.
“There was no warning 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 of discrimination,” Palmer and Butler write.
Palmer, erudite and measured, is adamant he’s not into “scaremongering” but he believes the way the Government “rode roughshod” over people’s basic human rights that night shows how fragile our democracy is.
“It’s those sorts of issues in New Zealand society – where we say we protect people’s human rights but quite frequently don’t – that you need to exert some more checks and balances.”
Under his written constitution, that bill would never have been introduced because Constitution Aotearoa states any motion for urgency has to be supported by 75 per cent of Parliament. On the other side, if the Government had taken a case to the Supreme Court and lost, it could have then tried to overturn the ruling in Parliament, but again it would have required a 75 per cent majority – “you couldn’t turn it over by a majority of one”.
Head of State
Palmer believes it’s inevitable New Zealand will become a republic – in fact, he argues that we are already a “de facto” republic in as much as the Queen doesn’t exercise any power here. What power she does have, the so-called royal prerogative, is described as “shadowy”, “murky” and so poorly defined it may as well be abolished.
The question then becomes, if not the Queen, then who?
Palmer rules out an elected president, saying it’s too contrary to our national personality and character. He rules out the Prime Minister taking on the largely ceremonial role as he or she is overburdened as it is.
In the end, Constitution Aotearoa lands on an updated variant of the Governor-General, appointed by Parliament for a term of five years. A public vote on the Head of State is rejected for the simple reason there would be no power invested in the role. Plus, he adds, if the public voted for a head of state it risks becoming a political process.
The Royal Family, as a result, would remain “popular celebrities” and New Zealand could send a message to the world – and to ourselves – that we are a mature and independent nation, but one that stays within the Commonwealth, maintaining our historical links to Britain.
Palmer knows there will be an emotional response to any call to axe the Queen as our head of state but is adamant that because it’s “very unclear what can be done in the name of the Queen” having her as a Head of State serves no logical purpose.
He’s more concerned with national identity and says a Head of State should say “something about us, who we are and what we stand for”.
On that note, he admits the flag debate last year had a large bearing on Constitution Aotearoa. “We thought if you’re going to discuss something important like the flag it’s probably more important to start in another place and figure out what you are about before deciding what symbol you should have to represent you.
“One of the things that worries me about New Zealanders is that sometimes they don’t know who they are.”
Treaty of Waitangi
Constitution Aotearoa has the Treaty of Waitangi unambiguously at its heart. In fact, Palmer, argues, it is effectively New Zealand’s first constitutional document and the Government’s “moral and political claim to democratic legitimacy rests of the Treaty”.
By its nature as a founding document and in the way it is now interwoven in modern society, the Treaty is integral to New Zealand’s current (unwritten) constitution. But like that complex and confusing constitution in the clouds, the Treaty itself is shrouded in uncertainty and “jagged legal recognition”. In other words, it has no independent legal status.
Palmer wants to give the Treaty “clear and certain” status. First, the text – in English and Te Reo – cannot be amended, which was a fear held by Maori when Palmer tried to incorporate the Treaty into the Bill of Rights Act of 1990. He believes, nearly 30 years on, Maori would be more receptive to seeing the Treaty enshrined in superior law – there would be no “hidden dangers” to Maori rights in doing so – and he has faith in the courts’ ability to handle complex Treaty issues in a fair manner.
A Supreme Court, acting under the new constitution, would also bring thoughtful analysis of how the Treaty works in modern New Zealand, ending the current “ungainly, unclear and untidy” legal treatment of the Treaty.
Nothing like America
One of the main criticisms of a written constitution is that once it’s indelibly inked, unelected judges could make changes to acts of Parliament because the constitution, as a law, would be open to interpretation.
Palmer doesn’t shy away from allowing senior judges to invalidate acts of Parliament that are inconsistent with the constitution. This, he says, gives Constitution Aotearoa “real bite” by ensuring MPs always acted with an eye on a higher law.
But Palmer is insistent we wouldn’t end up like the United States where the Supreme Court has the last word on virtually all constitutional matters. Constitution Aotearoa would give Parliament the final say, provided it can muster a 75 per cent majority. Think of it as a game of tennis, where Parliament always gets a chance to serve for the match.
The reason the United States system fails is the only way to overturn a Supreme Court ruling to is to have the support of Congress and three-quarters of the 50 states. That, Palmer argues, is why there have been so few changes to the US Constitution for 225 years. As well as giving Parliament the last say, Constitution Aotearoa has a built-in mechanism allowing it to be reviewed every 10 years and changed by a 75 per cent majority in Parliament.
“A constitution has to live – this is nothing like a US Constitution . . . New Zealanders wouldn’t buy an American constitution.”
But don’t we already have all this?
The New Zealand Constitution Act of 1852, enacted in England, “was in many ways a constitution”, says Palmer, in that it provided a method of government and was superior law.
But after New Zealand got self-government “it was whittled away and whittled away … until the guts fell out of it. By the time it was repealed in 1986 there were only 12 provisions left and you couldn’t understand any of them … it was an ‘anything goes’ constitution.
“You need something more than that and everyone else has something more that. I’ve worked in this area for over 40 years and it’s always seemed very strange to me the New Zealand system is so rudimentary.”
There have been two recent government inquiries into whether we need a written constitution – in 2005 and 2013 – but “neither of them led anywhere”. That’s due to the fact there was “no model to say what an alternative would look like, so we thought if we put forward a model that would focus the discussion”.
What happens next?
Constitution Aotearoa will officially be released at Parliament on Wednesday and has a complementary website where Kiwis can make submissions. Palmer says the book and website should be seen as the “start of a conversation”.
Once the submissions have been taken, he and Butler will write a revised version. After that it would be up to government to take hold of the issue. Palmer’s hope is that within five years New Zealanders will be voting in a referendum on whether to adopt Constitution Aotearoa.
“It’s a long time but it’s important to address these issues because if you leave your constitutional underpinnings unaddressed and unrepaired they fall into disuse and start to erode. And that’s one of the dangers here … that you can lose your liberty in little bits.
“New Zealand is relatively well governed compared with a lot of countries but it could be a lot better.”
A Constitution for Aotearoa New Zealand, by Geoffrey Palmer and Andrew Butler, Victoria University Press. Available September 21. $25.www.constitutionaotearoa.org.nz