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New Zealand democracy vulnerable to overseas trends, says Sir Geoffrey Palmer

04 May 2018 - By Lynda Hagen

Attacks on democracy around the world make it more important than ever to protect New Zealand’s democracy with a written constitution backed by judicial powers, former Prime Minister and legal academic Sir Geoffrey Palmer QC says.

Along with Law Foundation Chair Andrew Butler, Sir Geoffrey has recently published Towards Democratic Renewal (Victoria University Press), an updated version of their proposed constitution for New Zealand. This followed a year-long consultation on their first version, A Constitution for Aotearoa New Zealand, attracting 440 submissions and attendance by more than 3500 people at public meetings.

Both books were backed by the Law Foundation, and are among several projects we have supported to stimulate constitutional debate. Last year The Realm of New Zealand was published, an examination of our constitutional underpinnings by Dame Alison Quentin-Baxter and Professor Janet McLean. We also backed public awareness-raising events while the past Government’s Constitutional Advisory Panel was deliberating.

Sir Geoffrey says the well-attended meetings he spoke at showed there was strong interest in the subject, particularly among young people. But he was concerned at the lack of public understanding of New Zealand’s current constitutional arrangements, which makes them vulnerable to erosion.

“Democracy is on the defensive around the world – we have had Brexit, President Trump, autocracies in Russia and Turkey, dangerous tendencies in Hungary, and now China has a leader who is in power as long as he lives.

“It’s not a very good outlook for liberal democracy. We don’t want the tendencies in other countries seeping in here – they haven’t so far, but the risk is they will. The trends in other countries come to New Zealand, they just come a little later.”

New Zealand’s constitution is hard to find, being located in several statutes and other legal instruments – in fact, many people don’t realise we have a constitution, says Sir Geoffrey.

“One of the strongest arguments in this book is for the elements of democracy to be better taught. It’s one of the reasons we should give 16-year-olds the vote. In a democracy, legitimacy of government depends on public support. If that withers away, you are in serious trouble.”

The submissions led to many useful changes, Sir Geoffrey says. Their final version, fully translated in te reo Māori, is much shorter and focused on guiding principles rather than prescriptive detail.

Fundamental rights for all

The Palmer/Butler constitution sets out fundamental rights for all citizens, including some additional to those in the New Zealand Bill of Rights Act 1990 such as environmental protection, living standards, labour relations and education. It establishes a Head of State, to be known as the guardian or kaitiaki of the nation, and allows judges to strike out law that doesn’t comply with the constitution. But the judges don’t get the final say – the constitution allows for a Parliamentary over-ride of judges’ decisions, with a 75% majority of MPs. The role of the Treaty of Waitangi is also defined.

Sir Geoffrey says that other changes following the consultation included clearer definition of the Head of State role and introductory sections explaining the principles of government and broad limits on public power.

He says that it is now up to others to take the conversation forward.

“We don’t have a monopoly on wisdom, there are other good ideas out there. We just think there should be serious attention given to this. One of the problems is that New Zealanders are a bit complacent because we are removed from those areas of the world that are in serious trouble.

“Don’t think that democracy will continue by being neglected – it won’t,” he says.

In the interests of stimulating a broad discussion on New Zealand’s constitutional future, the Law Foundation supported former Attorney-General Paul East QC to write a critique of constitutional reform. Essentially, Mr East favours retaining the status quo, apart from some limited re-writing of our constitutional legislation to improve its accessibility. His article, The Case for an Uncodified Constitution, will be published later this year.

The Foundation will continue to support the national conversation on this important topic.


Lynda Hagen lynda@lawfoundation.org.nz is Executive Director of the New Zealand Law Foundation. Further information about the Law Foundation and its grants can be found at www.lawfoundation.org.nz.

Last updated on the 4th May 2018