New Zealand’s constitutional system is working well and would be worsened by introducing judicial supremacy under a codified constitution, Paul East QC says.

In the interests of stimulating broad discussion on New Zealand’s constitutional future, the New Zealand Law Foundation supported the former Attorney-General to write a critique of the constitutional reform proposed by Sir Geoffrey Palmer and Dr Andrew Butler. Essentially, Mr East favours retaining the status quo, apart from some limited re-writing of our constitutional legislation to improve its accessibility.

He argues that New Zealand’s experience shows that our democratic rights have been protected despite the absence of judicial supremacy.

“New Zealand is a successful player on the international stage. It consistently ranks highly in terms of human development, rights protection and transparency,” he says.

“This is, of course, not to say that there is no room for improvement. However, the point remains that our current system allows such improvement to take place without undue fettering of Parliament’s ability to act.”

Democracy central

Democracy is central to the argument for retaining parliamentary sovereignty, he says. “The chief constraint on Parliament’s power is that all MPs face elections every three years. If Parliamentarians wish to retain their positions, they cannot unduly upset the electorate … Conversely, the argument against giving judges supreme or even increased authority is that they lack this democratic legitimacy.”

The scrutiny and disclosure provisions of the Bill of Rights Act ensure that laws with significant rights implications cannot be passed surreptitiously, Mr East says.

“There remain concerns that parliamentary sovereignty, and rule by the majority, can lead to discrimination against minority groups, and that judges are best placed to safeguard rights. But persecution of minorities has not been the New Zealand experience. I do not think it is overstating the case to say that New Zealanders will not stand for a Parliament which seeks to actively oppress minorities.”

Mr East instances the repeal of the Foreshore and Seabed Act 2004 as an example of Parliament overturning a decision that did not match New Zealanders’ view of fairness.

“Who is better placed to protect the rights of minority interests? I would argue that Parliament is always best placed to make such decisions. Parliament is the body with the direct connection to the people, and when Parliament makes decisions which do not accord with New Zealanders’ views of fairness, it will hear about it through the democratic process.”

Paul East contends that a strong positive feature of our system is the ability to overturn most of our law by simple majority, giving Parliament the flexibility to adapt to changing circumstances rather than unduly binding future generations.

“Requiring a 75% majority to amend the constitution, regardless of the significance of the amendment, runs the risk of imposing a political stalemate and intense difficulties in making changes.

“An uncodified constitution has allowed New Zealand’s legal system to develop over time. No matter how carefully it is done, any form of entrenchment will inevitably involve an element of stagnation. This would be at odds with the flexibility New Zealand needs to adapt to a constantly changing world.”

Fundamental safeguards protected

New safeguards considered important could be added to the six provisions already entrenched in the Electoral Act 1993, though he says there have been few attempts to do this, a sign that the most fundamental safeguards are being protected now.

The Palmer/Butler model constitution allows for a parliamentary over-ride of Supreme Court decisions, based on Canada’s system. However, Paul East points out that the over-ride has rarely been used in Canada and the Palmer/Butler model would make its use even more difficult. This is because the proposed New Zealand model requires a 75% majority of MPs, rather than Canada’s simple majority. The result of this, says Mr East, would be “a system of de facto judicial supremacy with all of the associated problems”.

Further, the Palmer/Butler model introduces new rights to those in the New Zealand Bill of Rights Act 1993, covering matters like the environment, living standards and social security. Mr East argues that these are worthy goals, but they don’t need constitutional protection. Entitlements in areas like education and social security are already set out in law. Determining, for example, when the environment is “harmful to one’s well-being” is so imprecise that it would either be too vague to be properly enforced or would generate a tide of litigation.

Paul East does agree with Palmer and Butler that New Zealand’s current constitution is difficult to find, and that making it accessible “is of the utmost importance.” But, he says, it does not follow from this that a single codified constitutional document will resolve the accessibility problem – for example, the US Constitution cannot be properly understood without including Supreme Court judgments and various judicial and legislative conventions.

“While I consider the status quo to be the most effective model for New Zealand, I acknowledge that concerns about accessibility of New Zealand’s constitution are not new and likely will not go away.”

He suggests some review and consolidation of current legislation. The Constitution Act 1986 could be expanded to include clear exposition of principles like the central role of democracy, the importance of the Treaty of Waitangi, the rule of law and protection of human rights. Additionally, legislation governing the operations of Parliament and the Executive could be combined into single acts, as is the case now with the judiciary.

“I consider that retaining our current uncodified constitution is the best option for New Zealand … it is evidently working and, I predict, will continue working for New Zealand in the decades ahead.”

Lynda Hagen lynda@lawfoundation.org.nz is Executive Director of the New Zealand Law Foundation.