A Constitutional Reform Project for New Zealand

—Leonid Sirota, AUT Law School

Sir Geoffrey Palmer and Andrew Butler, now both barristers with an academic past, the former also once an Attorney-General, Justice Minister, and briefly Prime Minister, have published a book arguing that New Zealand needs for a codified, entrenched constitution for New Zealand ― something the country famously lacks at present. They simultaneously make the case for having a constitution of this sort and put forward a tentative text for one. I have expressed my scepticism about the reasons Sir Geoffrey and Dr Butler have given for entrenching New Zealand’s constitution elsewhere. In this post, I will highlight the key elements the proposed text.

Perhaps the first observation to make about the Palmer-Butler text is that it is very long. In the book, the table of contents of the constitution alone takes up five pages; the text, well over forty. If it were enacted in this form, New Zealand’s constitution would fit comfortably within the global trend for long, detailed constitutional texts covering a multitude of topics identified by Mila Versteeg and Emily Zackin. Yet the copious detail in the proposal also reflects a longstanding inclination among New Zealand’s public lawyers to see as constitutional governance issues that an American or a Canadian would never think of in this way. Whether this inclination, developed in the context of a flexible and uncodified constitution, is a useful guide to drafting an entrenched constitutional text is a question worth asking.

The Palmer-Butler proposal opens with an extended preamble, which refers to New Zealand’s British constitutional heritage and sets out the fundamental principles of the constitution: self-government and separation of powers; transparency; the rule of law; respect for the Treaty of Waitangi; protection of human rights; and respect for international law. These themes are fleshed out in the substantive provisions of the proposed text.

In its very first section, the proposed constitution then asserts its own supremacy―signalling the introduction to New Zealand judicial review of legislation, which is addressed in some detail in s 68. While “[a]ll courts and tribunals” would have judicial review jurisdiction in the first instance, any decision declaring an Act of Parliament unconstitutional would need to be “confirmed” by the Supreme Court. Parliament would then have the ability to enact “validating” legislation “that provides that, notwithstanding the decision of the Supreme Court, the Act of Parliament in question shall continue to have effect.” This is reminiscent of s 33 of the Canadian Charter of Rights and Freedoms, the notorious “notwithstanding clause”―but unlike laws enacted pursuant to that provision, “validating” legislation would need the approval of 75% of Members of Parliament.

While constitutional supremacy and judicial review are in, the monarchy is out. Section 9 of the proposed constitution creates the position of Head of State (not a “president,” ostensibly), to be “appointed to office for a fixed single term of five years by the House of Representatives on a free vote, that is to say a personal vote on a conscience issue.” (One wonders if the American election is affecting constitution-making in New Zealand and, more seriously, whether a constitutional text can police the party whip.) The powers and role of the Head of State, though, are very similar to those that currently belong to the Queen and her representative, the Governor General―minus the “reserve powers,” those exercisable without or even contrary to ministerial advice. These are simply gone.

Gone too are the uncodified constitutional conventions that define the relationships between the head of state, the government, and the elected component of Parliament in Westminster-type constitutions ― even “written” ones like those of Canada and Australia. In part, the Palmer-Butler proposal codifies them. For instance, paragraph 10 (a) provides that “[t]he Head of State must … signify assent to all Bills”, seemingly doing away with a power to withhold assent that has lain dormant for the last three centuries. In other respects, however, the proposal modifies New Zealand’s existing conventions. Most significantly, section 29 replaces the conventions governing loss of confidence by ministries and the dissolution of Parliament with arrangements inspired by those introduced in the UK’s Fixed Term Parliaments Act 2011. The Prime Minister can no longer advise the dissolution of Parliament, and an early election can only take place if a super-majority of members Parliament votes in favour of one, or if an explicit motion of no-confidence is carried and no alternative ministry secures the confidence of the House of Representatives. This leaves open the possibility that no ministry will be able to obtain supply, and yet no dissolution takes place ― a re-run of Australia’s constitutional crisis of 1975, but with the safety valve of a vice-regal intervention.

The proposed constitution incorporates the Treaty of Waitangi, by which the British Crown acquired sovereignty over New Zealand in 1840 (although it is doubtful that the Māori signatories of the Treaty actually intended to cede sovereignty rather than a less right of governance, if only because the Western concept of sovereignty had no meaning to them). The Treaty itself is included as a purportedly unamendable Appendix to the constitutional text. Yet the main provision of the text itself that refers to it, section 72, is oddly worded. It “recognis[es] and affirm[s]” “[t]he rights, duties and obligations of Māori under … the Treaty” ― but does not specify what these are, or make it explicit what it means to “recognise and affirm” them. Because of the substantial differences between the English and Māori texts of the Treaty, New Zealand’s laws have long referred to “the principles of Treaty of Waitangi” rather than to its provisions. Do Sir Geoffrey and Dr Butler intended to reverse that? For all of its authors’ insistence on their constitutional proposal making law accessible and transparent, this provision at least is neither.

There is less equivocation in the provisions of Part 12, “The Bill of Rights,” although the first of these, section 75, states that “[t]he rights and freedoms contained in this Part … are adopted and affirmed.” Is there a difference between “recognizing” and “adopting”? Be that as it may, much of the proposed “Bill of Rights” mirrors the existing New Zealand Bill of Rights Act 1990, which in turn had been heavily inspired by the Canadian Charter of Rights and Freedoms. There are also, however, some noteworthy innovations. A general “freedom of privacy” would be protected, as would a right to free primary and secondary education; a general right to the security of the person (which interestingly was not imported from the Canadian Charter when the Bill of Rights Act was drafted); the right not to be deprived of property except for a public purpose and with compensation; and environmental rights. All of these rights would quite clearly be justiciable ― in contrast to a short set of “non-justiciable principles” set out in section 106 under the heading “social and economic rights.”

In addition to these major changes, the proposed constitutional text sets out in great detail governance arrangements that largely reproduce New Zealand’s existing ones. The finance minister and the Attorney-General are referred to in distinct provisions, as are the Law Commission, the Ombudsman, the Parliamentary Commissioner for the environment, and the Solicitor General (who must, pursuant to subsection 107(4), “be a highly qualified practising lawyer”―sadly for any aspiring Kiwi Elena Kagans, though administrative law scholars would, no doubt, derive much amusement from studying litigation over whether a prospective Solicitor is “highly qualified”). There is a constitutional requirement for a Cabinet Manual; a lengthy statement of principles that are to govern the public service; a shorter one for the central bank; a statement of “purposes” for the Defence Force and one of “objectives” for the intelligence agencies; provision for a number of Parliamentary select committees and distinct categories of bills; and much else besides. The current hierarchy of senior courts is entrenched, and there is an explicit recognition of these courts’ “inherent power to develop the common law in a manner which is compatible with the Constitution” in subsection 61(5).

Hayekians avant l’heure, the authors of the French Civil Code, led by Jean-Étienne-Marie Portalis, took pride when they were presenting their work in having avoided “the dangerous ambition of wanting to regulate everything and foresee everything.” They explained that “the lawmaker cannot possibly foresee all” the needs of society. Nor can he “bind the action of time,” or “go against the course of events, or the imperceptible inclination of morals,” or “know and calculate in advance what experience alone can reveal”. After all, “[c]an foresight ever extend to things beyond the reach of thought?” Judging by their willingness to foresee and settle not only the fundamental principles on which the machinery of government is organized and the basic rights of citizens, but also minutiae of day-to-day governance in an entrenched text, Sir Geoffrey and Dr Butler must, I suppose, think that the answer to the latter question is in the affirmative. Presumably, they explain why this is so in their book, which unfortunately I have not yet had the time to read. I look forward to it. It must be fascinating.

Suggested Citation: Leonid Sirota, A Constitutional Reform Project for New Zealand, Int’l J. Const. L. Blog, Oct. 14, 2016, at: http://www.iconnectblog.com/2016/10/a-constitutional-reform-project-for-new-zealand