Reviewed by Geoff Adlam
New Zealand’s constitution is a hodgepodge of rules formed by a jumble of statutes, a plethora of obscure conventions, letters patent and manuals, and a raft of decisions of the courts. Accessing the basic material required to understand the current New Zealand constitution is both arduous and frustrating.
With this mindset – formed from long careers as prominent constitutional lawyers – Sir Geoffrey Palmer and Dr Andrew Butler have set out to press for change with a book. Launched at Parliament on 21 September, the book and an associated website (www.constitutionaotearoa.org.nz) are the spearheads of a plan to engender public discussion and feedback. The authors want to collect comments and suggestions until the end of September 2017 when they will publish a revised version along with their views on what should happen next.
In a magazine for lawyers, it’s worth pointing out that the book is intended “not for lawyers but for the public”. However, while other writings provide ample scope for detailed analysis of the legal principles and foundations of constitutional law, Sir Geoffrey and Dr Butler have produced a splendid example of how complex ideas can be explained simply and interestingly but with subtlety where necessary. Lawyers who dimly recall Bribery Commissioner v Ranasinghe will find in this book a relevant, lively and engaging exposition of the key issues surrounding our country’s constitution.
The book has a logical structure, stating its proposition in the first two sentences: “We propose a written, codified Constitution for New Zealand. That Constitution aims to set out in an accessible form and a single document the fundamental rules and principles under which New Zealand is to be governed.”
After an exposition of the key reasons why they believe a codified constitution is necessary, the authors then reproduce their Constitution of Aotearoa New Zealand. This has 118 clauses and is published over 51 pages without comment or notes. The Treaty of Waitangi in English and Māori is appended.
In presenting their constitution the authors say it aims to accomplish two objectives: it must rest on a popular foundation, and facilitate the principle that majorities must have their will expressed in legislation. It must prevent abuses of power, tyranny over minorities by majorities, and invasion of human rights norms.
Oh, and they want us to become the republic of Aotearoa New Zealand with a Head of State and a prime minister elected by a four-year term Parliament. Cabinet would have a maximum of 20 members. The Speaker would be elected by conscience vote and would not have a vote on issues before the House. The courts – with judges appointed by a Judicial Appointment Commission – would be able to rule on and remedy any law inconsistent with the Constitution. The Treaty of Waitangi is included in a non-amendable form. Some socio-economic rights such as the right to an adequate standard of living are recognised but made non-justiciable. Parliamentary sovereignty takes a beating, variously described as “an outdated doctrine” and a chimera. The rights protected by the New Zealand Bill of Rights Act 1990 and the Human Rights Act 1993 are adopted as a Bill of Rights, with additions.
The remainder of the book is a summary of all of the essential elements which combine to produce the draft constitution. These are organised into chapters, each of which focuses on a key component – a New Head of State, the Parliament, the Government, the Judiciary, through to Law-making and the State of Aotearoa New Zealand. Each begins with an outline of the most significant proposed changes before moving into a logical and eminently readable account of the current issues and how they could be remedied.
The authors are, of course, very conscious of what should or should not be included in a constitution. The 65,000 pages of statute law and numerous other legal instruments largely stand outside their goal of setting out “the principal institutions of the State and lay[ing] down the main limits of the State’s authority”.
The detail and the proposed changes are, of course, probably where attention will focus rather than on whether we should actually have a written constitution. Sir Geoffrey and Dr Butler are not the first to propose and draft a New Zealand constitution. However, in the highly competitive and frantic media world of today it is possible that the proposals such as a republic and removing the ability of the prime minister to call an early election will be the drivers of discussion. Each would be debated long and hard if proposed individually.
The people who have had input, according to the acknowledgements, largely include English academics at a Kings College, London seminar, and a group of academics from New Zealand. This scrutiny by a group of people who are probably in agreement on what we should have in our constitution will face a more severe test when the ideas in the book emerge into the world of talkback, a media seeking instant reaction without analysis, breakfast TV, Twitter, intolerance and party political discourse.
“Our principal aim has been to explain complex ideas in a simple and accessible way so that people can understand the issues at stake and reach a view of them. Only in this way can people understand the constitution that is already theirs and develop a view on whether it needs reform,” the authors state.
It seems clear that this objective has been attained. The clear and accessible text effectively communicates the way in which we could create a guiding document of aspirations, values and national identity which belongs to all New Zealanders. It is an important gift from two men who have contributed much to the development of our constitutional awareness and knowledge. A Constitution for Aotearoa New Zealand has given us a great launching pad for change. The next steps will be fascinating to watch.
A Constitution for Aotearoa New Zealand, Victoria University Press, 978-1-776560-86-8, Paperback, 256 pages, $25 (GST included, delivery not included).
Geoff Adlam is the New Zealand Law Society’s Communications Manager.