The Law Foundation is backing work led by former Prime Minister Sir Geoffrey Palmer to draft a model New Zealand Constitution as a basis for public debate.
The project is based on Sir Geoffrey’s view that New Zealand’s present constitution is “dangerously incomplete, obscure, fragmentary and far too flexible.” He says the country needs a constitution that is “fit for the modern age” to prevent governments from abusing power.
Sir Geoffrey is an acknowledged constitutional expert, having been responsible for the Constitution Act and the Bill of Rights Act, and for setting up the Royal Commission that eventually led to adoption of the MMP voting system.
He is working on the proposed draft constitution with constitutional expert and Law Foundation Chair Dr Andrew Butler. Their work will be published as a book later this year, along with a website to take public comment on their proposals.
The Foundation helped fund public awareness-raising around the Government’s constitutional review panel in 2013. No change resulted from that process, nor was there any change following an earlier select committee review in 2005.
This time around, Sir Geoffrey and Dr Butler aim to provide an “unofficial” model constitution to focus attention and stimulate debate.
Sir Geoffrey introduced the project at a Victoria University symposium in Wellington on 19 May, where he said that, compared with overseas models, New Zealand’s constitution was highly unusual.
“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.”
Key difficulty
A key difficulty was that it was not located in one place. He cited a 2006 study by Dr Matthew Palmer (now Justice Palmer) that found the New Zealand constitution was located in 45 acts of Parliament (including six very old English acts), 12 international treaties, nine areas of common law, eight constitutional conventions, three and a half executive orders, one prerogative instrument, one legislative instrument and half a judicial instrument.
“The current New Zealand constitution consists of a hotchpotch 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.”
He said that trying to understand the current New Zealand constitution was difficult 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.”
The constitution was the foundation of law and politics in any country and should be easy to find, so people knew the basic rules of government and that public power was regulated. New Zealand was one of the few countries where a citizen could not find those rules from a single source.
“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.”
Preserving freedom
Sir Geoffrey said the changes to be proposed were a necessary part of preserving democratic freedom in New Zealand, and of protecting the fundamental principles that anchor public power and strengthen government accountability.
Unlike other countries, nearly all of New Zealand’s constitutional rules could be altered too easily by simple majorities of MPs, he said. “Public power ought not to be at large, untethered and without anchors.”
The proposed flexible New Zealand constitution will be designed to protect the freedom of individuals, advance open and transparent institutions and offer efficient accountability mechanisms.
Public participation and involvement in decision-making should be encouraged, he said. A constitution was for the people, so the authors would issue their proposals for public feedback before making a formal submission to Government.
For example, the proposed new constitution would replace the Crown with a legal entity of the State. Sir Geoffrey said it was possible to retain the monarchy and create the State, and whether the Queen then remained Head of that State would be up to New Zealanders.
“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.”
The book, Constitution Aotearoa, will be published by Victoria University Press in September 2016.
For more information on this and other Law Foundation-funded projects, visit www.lawfoundation.org.nz.
Lynda Hagen is the Executive Director of the New Zealand Law Foundation.