• Sir Geoffrey Palmer and fellow lawyer Andrew Butler are authors of A Constitution for Aotearoa New Zealand published by Victoria University Press.
In the Herald recently, Noel Cox raised two main objections to our proposed constitution. First, Cox dislikes a written, entrenched constitution despite the rarity of any arrangements like New Zealand’s anywhere else on this planet. Second, he worries about the Treaty of Waitangi.
His first point assumes that a written, codified constitution cannot be flexible. We disagree. New Zealand does not need a constitution etched in stone. It needs one with the capacity of being changed either by a referendum of the people or by a special majority of 75 per cent of the members of Parliament.
This is precisely the current position in fundamental elements of the electoral system, guaranteed by section 268 of the Electoral Act 1993; it has been in place in previous legislation since 1956.
We recognise the need to keep the constitution up to date; that’s why we propose it be formally reviewed every 10 years.
Unless our constitutional machinery is kept in good order, it will deteriorate and that is what is happening to it now.
The prime danger with New Zealand’s constitution is that it can be changed at any time with a majority of one in the House of Representatives. That means that anything goes. There are no constitutional restraints except elections.
We have had an un-entrenched Bill of Rights for 25 years. Over that time Parliament has passed laws that breach it on at least 37 occasions, in spite of the Attorney-General advising MPs in writing that they were doing so. Parliament needs greater encouragement to honour human rights better than it does.
To say it is debatable whether New Zealand has lost anything by not having entrenched constitution seems to us just plain wrong.
The first thing we have lost is clarity about what the constitution is and where to find it.
Of what does the New Zealand constitution consist? The most recent scholarly answer, not from us, is that the New Zealand constitution is located in 45 Acts of Parliament, including six passed in England, 12 international treaties, nine areas of common law, eight constitutional conventions, three-and-a-half executive instruments, one prerogative instrument, one legislative instrument and half a judicial instrument.
How many New Zealanders can find that material let alone understand it?
When the issue of a written constitution was last considered in New Zealand in the 1960s, it was rejected partly because it was said New Zealanders were British and did not need to write it down.
We are no longer in that condition and there is real value in writing down what our fundamental rules of government are.
Every legal organisation in New Zealand whether it be a company, trust or incorporated society has a constitution, but not New Zealand itself. Odd that.
Cox admits that “The Treaty is now politically all but entrenched … ” That is the case and to a much greater degree than many people understand. So why deny the reality? Are we scared of it? There are few mysteries or difficulties left that we are likely to encounter by making it part of a formal constitution.
Far from being unmanageable, as Cox opines, drafting a written constitution once the Crown is removed makes things much more orderly, understandable, less mysterious and more rational.
We need to know who has what powers and how they must be exercised.
Cox says we must be prepared to tackle large issues. We are so prepared.
We believe that New Zealanders would welcome the opportunity to sort out where they stand and what they stand for. Based on the huge volume of submissions it received and the many public hearings it held, the Government’s own Constitutional Review Panel in 2013 noted “a consensus that our constitution should be more easily accessible and understood”, and also noted that “one way of accomplishing this might be to assemble our constitutional protections into a single statute”.
A muddled and confused approach is unlikely to be sufficient for the challenges New Zealand will encounter in the future.
What is needed is a constitution that sets out the rules, principles and processes about government in one document so they are accessible, available and clear.
We need to eliminate the need for significant unwritten constitutional conventions and customs which are unclear in important respects.
We need greater force in the protections given by our Bill of Rights.
Our proposed constitution aims to provide an accurate map about how we govern ourselves. We have already had helpful feedback on what we propose; we seek your views at www.constitutionaotearoa.org.nz.