Why New Zealand needs a written constitution?

by Lucia Dore

On a road show around New Zealand are Sir Geoffrey Palmer, law professor and former prime minister, and Andrew Butler, a litigator at Russell McVeagh in Wellington, New Zealand. They are promoting their book: “A constitution for Aotearoa New Zealand” and are asking people for their views on the points they have laid down for a otential written constitution.

 Like most New Zealanders, I didn’t understand the importance of having such a constitution, especially one which has all its components in one place - but now I do. And as a former prime minister, deputy prime minister and constitutional lawyer, Sir Geoffrey explains it so well.

 Evidently, New Zealand has something approaching 65,000 pages of statute law, as well as numerous other regulations or legal instruments, he said.

 He added: “New Zealand shouldn’t have ancient constitutional principals that no one understands”. The argument is even more valid when you think 

about who lives in this country. “Twenty five per cent of people were not born here,” he said, and this figure rises to 40% if you take Auckland alone.

 Frightening to some New Zealanders (but who is a New Zealander anyway?) is the fact that by 2030 Asian people will outnumber Maori, Sir Geoffrey said.

He also pointed out, that there are only three countries without a codified constitution- Israel, Britain, and New Zealand- and cited the example that a country like the United Kingdom leaving the EU has brought a host of questions about the constitution, which should be easily answered but are not.

 Sir Geoffrey said that in 1857 New Zealand achieved responsible government, even though it was still part of Britain. “In 1857 responsible government was consolidated and more than nominal independence from Britain achieved when the British Parliament passed the New Zealand Constitution Amendment Act,” according to the Parliament website. “This gave the New Zealand Parliament authority to amend all but a few entrenched sections of the New Zealand Constitution Act 1852,” it says.

 In 1907, New Zealand became a dominion and in 1926 there was the Balfour Declaration, which made the Dominions autonomous Communities within the British Empire, and equal in status. In 1931 New Zealand didn’t cut its “apron strings” with Britain, Sir Geoffrey said, and in 1957 the Upper House was abolished.” At no time did New Zealand ever have a debate over what the country had to do, he said, adding: “New Zealander’s don’t know much about constitutional arrangements.” He also said that, for the most part, the Upper House “doesn’t work well”, citing the Upper House in Canada as an example, which the country has tried to repeal for the last 20 years, he added.

 The proposed Constitution of Aotearoa New Zealand is outlined in the book: “A Constitution for Aotearoa New Zealand”. It provides for the:

• “The legal establishment of the State, in this case Aotearoa New Zealand. This part sets out that all power derives from the people. It deals with the assets of the State and such subjects as citizenship, languages and territory. It replaces the poorly understood concept of the “Crown” with a legal entity, the State, as has been done in numerous Commonwealth countries.
• “The office of a new Head of State is created, the functions and duties defined and method of appointment laid down.
• “The Parliament is recognised and confined to a fixed four-year term with the functions of the House of Representatives set out and a new method for electing the Speaker along with the guarantee of free and fair parliamentary elections.
• “Law-making powers are set out, including the need for information about legislation and the use of urgency in the House of Representatives.
• “Finance and taxation are dealt with in terms that provide little change from what now exists.
• “The powers of the government are defined including the functions of the Executive Council, the offices and functions of Prime Minister and ministers are set out as well as those of the Cabinet. One purpose of the Constitution is to restrain the powers of the Government somewhat.
• “Judicial authority is vested in the courts.
• “To promote transparency official information availability is constitutionally enhanced.
• “The principles governing the public service are set down.
• “Local government is given a set of principles that will enhance its functioning and give it constitutional status,
• “Powers relating to international relations and diplomacy are set out and parliamentary control is provided for.
• “Te Tiriti O Waitangi/the Treaty of Waitangi is made part of the Constitution thus providing it with a clear and certain status.
• “Human rights are protected by including the Bill of Rights that we have had for 25 years as part of the Constitution with little alteration, although it will become more potent under the new arrangements. Some new guarantees have been added, such as a right to property, a right to privacy and a right to an environment not harmful to health and wellbeing.
• “The Constitution provides for its suspension in emergencies with proper approval procedures involving the House of Representatives.
• “Finally, the Constitution provides mechanisms for its amendment by the people through the referendum or by a supermajority (75%) of MPs.

 What the authors have aimed to do is to provide a written constitution “that demarcates the institutions and powers of government, the boundaries between executive, legislature and judiciary and sets out the rights of ordinary people in their relationship with the bureaucracies of state in their means of involvement”. They say: “That is the principle upon which we have selected what to include in the draft Constitution and what to exclude.

 Apart from the points made above, the authors are also seeking comments or submissions on a number of other issues such as: “Have we captured what is needed in the preamble?” and “Does the State in Part 1 need further elaboration”.

 The authors would like to receive comments and submissions from the public until September 30 2017, before the proposed constitution is submitted. The website is- www.constitutionaotearoa.org.nz. And there are links on social media.

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