Time has come for a written constitution

Sir Geoffrey Palmer (left) and Andrew Butler.PHOTO: GRANT MAIDEN PHOTOGRAPHY

Sir Geoffrey Palmer (left) and Andrew Butler.
PHOTO: GRANT MAIDEN PHOTOGRAPHY
A constitution for our times: let’s have it now, argues Andrew Butler before the Dunedin launch of his co-authored book with Sir Geoffrey Palmer on the issue. 

Public power. Who has it? What do they use it for? What limits must be respected? Who can enforce those limits?

Those are the sorts of questions that lie at the heart of any country’s constitution.

But in New Zealand it is not easy for people to find the answers to these basic questions. That’s because New Zealand is one of only three countries without a proper written constitution.

In our recent book A Constitution for Aotearoa New Zealand, Sir Geoffrey Palmer and I say it is time for New Zealanders to adopt a written constitution fit for our times. Through our website, Facebook page and Twitter handle, we are seeking your views on whether New Zealand should have a written constitution, and if so, whether some aspects of how public power is exercised in this country need to change.

To understand the principal rules of how public power is exercised in New Zealand, you have to wade your way through a jumble of statutes – some from New Zealand, but quite a few very old ones from England; and a plethora of obscure conventions, letters patent and manuals. The relationship between all these sources of law is obscure and unclear.

We share this untidy approach to constitutional law with the UK. Brexit has shown how fragile an unwritten constitution can be. No-one knows who has the power to get the UK out of the EU. The courts have had to step in and answer these basic questions. Those newspapers that didn’t like the recent decision saying only Parliament can approve exit labelled the judges as “Enemies of the people” and “Traitors”. What a farrago. No wonder a publication like The Economist, that has long opposed a written UK constitution, accepts the time has come.

In our proposed constitution, we aim to continue the best of our constitutional traditions, while proposing some innovations we believe will make our system even stronger.

We propose that, unlike at present, Parliament cannot pass laws that are inconsistent with the Bill of Rights or other important constitutional principles, by a bare majority of 50% plus 1 of MPs. But nor do we favour an American-style Bill of Rights where the last word is left for the courts. Instead, we favour something more middle of the road. Under our proposed constitution, the last word would lie with Parliament. It could override the Bill of Rights where either 75% of MPs are in support, or a simple majority of the people at referendum provide approval.

That is consistent with New Zealand tradition. The Electoral Act 1993 provides that core features of our electoral system can only be changed by referendum or 75% support of Parliament. We are simply seeking to roll out the same level of protection for other core features of our constitution.

We propose that the Bill of Rights be expanded to include rights like privacy, property and a clean environment.

We propose that New Zealand finally becomes a republic. We understand the warmth for the Queen. But as an institution, the British monarchy does not reflect modern New Zealand.

Too much law is passed in a rush, increasing the likelihood of mistakes, perfunctory public consultation or short-term knee-jerk laws in time for the next election. We propose a four-year term of Parliament, so the Government and MPs have time to make careful policy proposals and legislation.

So why is this a good time for change?

First, the flag debate showed New Zealanders were open to discussing who we are and where we want to be.

Second, the 2013 Report of the Constitution Advisory Panel recorded significant support for setting out New Zealand’s constitutional rules in an easily accessible written document. Our draft constitution does this in 40 pages.

Third, developments such as Brexit, the US presidential elections and rising extremism in Continental Europe show there is public disquiet with the way in which power is being exercised. Will New Zealand be immune? Unlikely. Now is a good time for a refresh to see what additional checks and balances our system needs so as to maintain public confidence.

Fourth, when the idea of a written, supreme law constitution for New Zealand was last seriously mooted in 1960, one reason against was that New Zealanders were British; a written constitution was seen as un-British. Immigration trends during the past 20 years mean if it was ever true that Kiwis were British, we are no longer. New New Zealanders have grown up in different places where they do not have the Westminster tradition. Making it easy to access the rules of the game is important if we want these new Kiwis to be able to participate fully in public life.

What do you think? Let us know on our website www.constitutionaotearoa.org.nz  or come along to the Dunedin launch of our book and Q&A at Otago Museum tomorrow at 7.30pm organised by the University Bookshop and chaired by University of Otago law professor Andrew Geddis. Entry $5 at the door.

Andrew Butler is a Wellington litigator and co-author of A Constitution for Aotearoa New Zealand.

Tuesday, 29 November 2016