By Geoffrey Palmer & Andrew Butler

Our 2016 book A Constitution for Aotearoa New Zealand set out a proposed Constitution for New Zealand. That Constitution aimed to describe in a single, easy-to-read document the bedrock principles by which public power should be exercised, the basic institutions of government, and the rights of individuals.[1]

We did this in order to stimulate debate and to continue the constitutional conversation initiated by the 2013 Constitutional Advisory Panel.[2] We did not expect our proposals to be adopted wholesale, if at all. But we wanted to get people talking about public power in New Zealand: how it is used, and whether we can do better. Previous and better resourced efforts at stimulating this discussion have led nowhere, because there have been no concrete proposals for people to engage with.

Since the publication of the book, we have been on a long and fruitful journey around New Zealand to speak to many people and groups about our ideas and theirs. We have spoken to more than 3500 people. We have received hundreds of submissions through our website (constitutionaotearoa.org.nz) and we have had useful engagement with experts on various points of details. Our proposals received publicity through op-ed pieces in many newspapers. All of this has enriched our understanding but not dimmed our vision.

As a result of what we have learned, we have made major changes to our proposals. This was exactly the purpose of asking for submissions. We know that serious public submissions on a concrete proposal can sharpen and increase understanding of where difficulties lie and suggest alternative approaches that may be better. But equally, they can help identify areas of substantial agreement. It surprised us how many engaged with us, and many of the submissions were exceedingly detailed and thoughtful. We are indebted to the people with whom we have spoken, to all those who made submissions or contributed blogs, and to those who reached out to us via social media, as well as the experts who have helped us.

Our aim with this project was to kick-start a conversation and provide a resource that can be used as an educative tool about constitutional reform in New Zealand. If New Zealand is to reform its constitutional arrangements, the authors are convinced that it will have to be as part of a government-initiated undertaking to carry out a thorough and properly resourced programme of public education and engagement. Later in the book we outline the way we believe this process should be approached.

In starting a conversation, we have succeeded to a greater degree than we expected. In the end we were unable to speak to all the groups who wanted to hear from us. We are only two people and we have other demands upon our time. Our project attracted much news and other media attention over the 12 months that followed its publication.

Towards the end of our consultation process, the 2017 general election occurred. We did not want the issue of a codified constitution to become part of the election campaign because the nation’s constitution is too important to become politicised. For that reason we deliberately curtailed our publicity efforts during the campaign and during the negotiations that followed. Besides, an election campaign cannot effectively deal with an issue of this complexity, although we thought there may be some learning from it to take on board in our final version. Constitutional change requires a properly supported process of its own.

Constitutional issues were little discussed in the election campaign, although there were some policies and statements. One instance did occur that illustrated the importance of human rights.

In the lead-up to the campaign, some commentators questioned the state of New Zealand’s democracy, highlighting falling voter turnout at previous general elections (particularly among young people) and suggesting that voters were feeling increasingly powerless and disenchanted. A Massey University survey published in June 2017 showed widespread discontent with New Zealand’s system of government.[3]

Human rights issues briefly came to the fore during the campaign when the Deputy Leader of the National Party, Paula Bennett, promised a crackdown on gangs if re-elected. The policy was clearly in breach of the New Zealand Bill of Rights Act 1990, which was admitted by Bennett: ‘It probably does breach the rights of some of those criminals.’[4] Bennett was reported as saying some gang members had ‘fewer human rights than others’, and Prime Minister Bill English said it was good that New Zealand lacked a written constitution, as it gave governments flexibility.[5] The policy was widely criticised.[6] English moved to clarify Bennett’s comments, emphasising that the National Party did not believe that some New Zealanders had fewer human rights than others. But the important point is that, without a superior law Bill of Rights, the adoption of such an extreme policy devised in the heat of an election campaign could not be stopped.

Some parties’ policies also reflected a mood for change. Gareth Morgan’s Opportunities Party (TOP) put forward a ‘democracy reset’ policy under which it called for a written constitution ‘to protect the Kiwi way of life’ as well as the re-establishment of an Upper House.[7]

The Green Party called for the entrenchment of the Māori electorate seats,[8] and Green Party Co-leader James Shaw was reported as saying, ‘To make the Government fulfil its responsibilities on climate change, human rights and a host of other things, New Zealand needs a written constitution.’[9]

There was also some mention by Jacinda Ardern, leader of the Labour Party, about New Zealand becoming a republic. She was reported as saying:[10]

I do think that we should start having the conversation. There are a lot of issues that need to be resolved on that path, and I would have liked the government to have had that conversation when the flag debate came up . . .

That was the time to say, ‘actually, where are we heading? What’s the Crown’s ongoing relationship with Maori if we transition into a republic? Where will we be in 20 years’ time in this regard.’

These are good questions and they are dealt with in this book. There is a great deal of work in carrying out constitutional change and it is a task that tends often to be thought subordinate to more immediate priorities.

Our revised proposals: what we want to change

On a broad level, the new draft of Constitution Aotearoa which we set out in this book is much more streamlined and simpler than our 2016 proposal. We have also reordered the draft. We now start the constitution with a statement of purpose, followed by the Bill of Rights and te Tiriti o Waitangi/the Treaty of Waitangi. This reflects strong feedback that core values should be given top billing. After receiving feedback from various individuals and groups that the first draft was too long, too detailed and too complex, we undertook to pare it back, focusing on principles rather than processes which may not stand the test of time. There are, of course, limits to how far such an approach can go. A constitution is a legal document that needs to speak with as much precision as possible. Otherwise uncertainty will be generated and the basic purpose of writing down the framework of power may be lost.

Many readers of the first draft were clearly not familiar with statutes, passed by the New Zealand Parliament. And there is no reason they should be. Some people, not used to reading legal English, became impatient with our 2016 draft. We sympathise with this, because a basic law such as a constitution needs to be readily understood by everybody. It should be simple enough that schools can teach it without too much difficulty. That is one of the fundamental aims of the project. A constitution is not the exclusive province of lawyers and they are not the most important readers of it: this document and its ethos must live in the hearts and minds of the people.

We have therefore made major changes in this regard. We have completely altered the Preamble, making it contemporary and accessible rather than historical and legal. We have cut down the bulk of what was previously included. And we have made the drafting clearer and more accessible. Much prescription is gone. This has enabled us to shorten the draft considerably.[11] A constitution does have to set out the functions and powers of Parliament, Government, the Head of State and the Judiciary, and our new proposal does this. But much less detail is included now, and we think we have achieved the right balance.

We have also changed a number of other things:

People are now at the front, reflecting that the State exists to protect the people and their rights.

We have given the Head of State (to be known as the Guardian or Kaitiaki of the Nation) more powers to make that person an effective protector of the constitution and a better check on legislative power.

We have reconstituted the institutions of the State and its core —the Government, the Parliament, the Judiciary, the Head of State and local government—and clarified the functions and powers of each.

We have introduced some new proposals aimed at increasing electoral participation—compulsory voting and lowering the voting age to 16.

We have changed our approach to other things like te Tiriti o Waitangi/the Treaty of Waitangi and local government.

There are a number of issues we have decided not to change. We are not attempting to move away from our current MMP electoral system, nor to re-establish an Upper House of Parliament. On other matters, we remain of the same view as in our first attempt, such as the need for a superior law constitution and the need for entrenchment of the constitution.

We feel what we have presented in this second draft strikes an appropriate balance between principles and prescription, between things that should require increased scrutiny before they are amended or deleted and things that can be changed through ordinary legislation—though others may disagree. The selection of what to include and what to leave out is a subject on which reasonable minds may differ.

What follows is a summary of the core proposals in our Constitution that would change the status quo. These changes are further examined and explained in the chapters that follow.

Superior law constitution

We propose the constitution should be superior law. That means the constitution sits above all other law, and other laws must comply with it. This feature is commonly found in other countries. It used to be a feature of the New Zealand constitutional system in its early colonial days, but this faded over time. A superior law constitution provides a stable framework of principles and powers for the primary public institutions that make decisions affecting people—the Parliament, the Cabinet and public service, the courts and the Head of State.

The proposed Constitution sets out a clear division of powers between these institutions. It also stops Parliament from changing the basic rules contained in the Constitution by a majority of one.

Entrenched law

We also propose that the Constitution should be entrenched. That is, changes can only be made to the Constitution if a 75 per cent majority of MPs in Parliament agree, or if a change gets more than 50 per cent support in a referendum of the voters.[12] It is very important to appreciate that this entrenchment model will make our constitution harder to amend than is currently the case (at the moment a bare majority of Parliament can change any laws, including constitutional laws) but it will be much easier to amend than the US or Australian constitutions (many submissions that supported our ideas wanted reassurance that Constitution Aotearoa would not lock out future generations’ ability to change to their conditions, like in the US and Australia).

Bill of Rights

Under our proposed Constitution, New Zealanders’ rights will be better protected. Currently, a bare majority of MPs in Parliament can remove rights or pass laws inconsistent with those rights. As we explained in our 2016 book—and to the surprise of many people at our various public meetings—this power is used regularly in New Zealand. Under our proposal, if 75 per cent of MPs agree, only then will Parliament be able to postpone a court decision to suspend a provision that breaches fundamental rights. This will ensure much closer and more rigorous consideration of human rights issues than previously.

We also propose the recognition of important human rights that are not currently protected by the New Zealand Bill of Rights Act 1990. These include the right to a healthy environment, the right to privacy, the right to property, the right to a free state education, rights for children, some constitutional protection for workers, and the right not to be discriminated against on the grounds of gender identity or expression, or subjected to slavery, servitude or being required to perform forced labour.

Most of the provisions in the Bill of Rights in Constitution Aotearoa are to be found in the New Zealand Bill of Rights Act 1990, but they have been brought up to date to reflect modern developments in international human rights law.

Te Tiriti o Waitangi/the Treaty of Waitangi

Māori rights are extensively recognised in New Zealand law, but the constitutional position of te Tiriti o Waitangi/the Treaty of Waitangi remains unclear. It needs to be clarified. It is not only a subject of controversy, but also of uncertainty as to the precise range of its ambit, 178 years after it was adopted.

A profound national conversation needs to be held to reach better understandings of what is covered by the Treaty and to state those understandings in the constitution so that there is greater clarity around what, in practical terms, the Treaty means in contemporary New Zealand. The proposed constitution provides a process for this to occur.

The Head of State

We should have a Head of State who is a New Zealander living in New Zealand. We should become a republic within the Commonwealth as a majority of nations in the Commonwealth are. We believe the Head of State should be called the ‘Kaitiaki’ or ‘Guardian’ of the nation, and in that capacity the Head of State should be given some powers to protect the constitution. The Head of State would be appointed through a free vote of Parliament, requiring the support of two-thirds of MPs. A new function for the Kaitiaki would be to refer to the Supreme Court laws passed by Parliament where the Kaitiaki is concerned they may not be consistent with the Constitution. The Supreme Court would rule on the issue raised after hearing legal argument. Having our own Head of State as a symbol of unity will enhance our identity as an independent nation and help us forge further our own distinct identity.

The State

Our proposed Constitution would legally constitute the state of Aotearoa New Zealand in a new form and provide clarity concerning the powers that it has. Those powers have to be assigned to the Parliament, the Cabinet and public service, the Judiciary and the Head of State. The State would have vested in it all the powers as successor to the Crown in right of New Zealand. The realm of New Zealand would be abolished, as would the royal prerogative.

Parliament

The central democratic institution of the country is Parliament. In it are vested the legislative power and the financial power to tax. It settles the content of legislation, taxation and government expenditure. It is presided over by the Speaker. The Speaker should be elected from among MPs by secret ballot. We are also proposing the introduction of compulsory voting and lowering the voting age to 16. Parliament will have a fixed four-year term, not a three-year term as at present. Within government, business and political circles, there is a widespread consensus that three years is too little time to devise and enact good quality legislation; four years is much more realistic. However, people have—understandably, in the absence of checks and balances—been reluctant to give up the ability to throw out a Government at a general election on a three-year cycle. We believe that if the checks and balances proposed in our Constitution were adopted there would be strong support for a four-year term. Public feedback reinforced this view.

Further, fast law-making has produced mistakes and blunders. The taking of urgency will be restricted so that steps in the legislative process cannot be shortened at the whim of Government. The proposed Constitution improves law-making by requiring advance information about Government legislation and the publication of the Government’s legislative programme.

The Government

The executive authority of the State is vested in the Cabinet. The principles governing the functions and powers of the Cabinet and public service are set out in, and limited by, the proposed Constitution. It provides for the role of the Prime Minister and other ministers and their accountability to Parliament.

The way in which the powers are now distributed has enabled the abolition of the Executive Council, which previously we retained. It is simply unnecessary under the proposed arrangements.

Local government

The proposals include a set of principles to provide local government with some constitutional protection. The principles that local government frameworks must comply with are stated. These changes are important because local government is the arm of government nearest the people. It has important functions and is often restricted by central government legislation. Local government often finds itself with inadequate financial resources to carry out its responsibilities.

The Judiciary

The judicial power of the State is vested in the courts. Their constitutional protections and independence remain the same as they are now, in essential respects, as contained in the Constitution Act 1986. The major change is in the creation of a Judicial Appointments Commission, which is provided for in Constitution Aotearoa. The Commission will produce a shortlist of suitable appointees, from among which the Attorney-General will recommend someone for appointment. Since judges have increased powers under the proposed Constitution it is important that their appointment is removed from the political influence of Cabinet.

International relations and defence

Before an international treaty can bind New Zealand, our Constitution provides it must have been approved by resolution of the House of Representatives. Currently this is not the case. Similarly, before New Zealand armed forces are deployed overseas in situations likely to involve the use of lethal force, a resolution must be carried by the House of Representatives.

Integrity and transparency

Constitution Aotearoa provides for reinforcement of key democratic values. The Attorney-General and the Solicitor-General are made responsible for the integrity of the legal system, protecting the rule of law and safeguarding the independence of the Judiciary. Parliamentary control of public finance is laid out in the Constitution. The Auditor-General is the watchdog over the proper expenditure of public money and the power and independence of that office are guaranteed by the Constitution. We have renamed the State Services Commission as the Government Services Commission and made it a commission of three persons. The Government Services Commission, as the supervisor of the public service, is given powers to be exercised independently of Cabinet and to ensure the public service, while serving loyally the Government of the day, is not politicised. The requirement for the public service to give ministers free and frank advice will be constitutionally protected. Officers of Parliament such as the Ombudsman and the Parliamentary Commissioner for the Environment are contained in this part of the Constitution. Official information legislation is required by the Constitution to be strengthened. The police are subject to an important set of constitutional principles by which to hold them to account. The intelligence agencies are required to be regularly reviewed and kept by the constitution within reasonable bounds in order to protect the liberty of the people. The Human Rights Commission is given constitutional status.

Periodic revisions of the Constitution

We propose every 10 years the Constitution must be reviewed. A Citizens Assembly consisting of randomly chosen members of the public must be appointed to ensure ordinary people have a strong voice in recommending changes. In addition, a Constitutional Commission would be convened, containing a mixture of public officials and key office holders who would make recommendations to Parliament for constitutional amendments.

Emergencies

Where emergencies occur, such as actual or imminent threats to national security or public order, or civil emergencies that may flow from natural disasters, there is provision for the Constitution to be suspended subject to important restrictions such as time and approval by the Parliament. These provisions are a significant improvement on the current constitutional position under which anything is possible.

Adoption

The detailed steps we believe need to be taken before any new constitution can be adopted are set out later in the book. They will require an inclusive process of public involvement and conversations before any proposals are finalised or even considered by the Parliament, let alone put to a referendum of the people. The final provision in our proposed Constitution provides that the Constitution must be approved by more than 50 per cent of valid votes cast by electors at a poll conducted under an Act of Parliament for this purpose, and will come into force on a date specified in that Act.

The spirit of democracy

It is important to understand that the legal frameworks any constitution erects must be infused with life and vigour by the human beings who make the decisions within the institutions. Frameworks are important and so equally are the distribution of powers. But these are not everything. The vision and spirit with which public officials approach their tasks are fundamental to increasing the quality of our democracy. Our chapter on deliberative democracy and citizen engagement is fundamental. It is imperative that a new and inclusive approach to the making of public policy and law is developed. New attitudes are necessary to make the structures established by the constitution work well. The government machine must face outwards to citizens, not look inwards, serving its own convenience and comfort. The sense of being disconnected, even alienated, from these processes generates distrust in some segments of the population. That atmosphere must be dispelled. A healthy democracy must serve the common good and not favour particular interests in society, especially those of the most wealthy and powerful.

Democratic renewal

As a result of the submissions, our public meetings and interactions with young people, we became concerned that there was a significant lack of faith in how governmental arrangements worked for people. Things are not looking good in many western democracies and democracy is on the wane in a number of areas of the world. There seems to be a declining faith in the legitimacy of the decisions that are being made. Many feel their voices are neither heard nor heeded. Too many New Zealanders seem to think themselves powerless to influence government actions. It is not just the institutions of government; it is how they are run, how they communicate with people and how they make decisions. We feel these issues have to be addressed by changing the way government works, not merely by altering the constitutional structures, but also by changing the methods of decision-making.

Democratic renewal requires some adjustments to the way business is carried out within government and a new, open and inclusive approach to the making of policy and legislation. To achieve this goal, a written, codified constitution has an important role to play. It will do this by first strengthening institutions; second, by promoting a new sense of citizen engagement with how policy is developed; and third, by imposing boundaries on what government can do and how it must proceed.

The argument for democratic renewal is partly historical and partly institutional. Many people have lost faith in institutions. Our legal and political systems are finding their legitimacy is slipping away. Democracy needs to be thickened and deepened. Institutions will decay unless the public actively own them and trust them. We should move toward a much more deliberative democracy than we have. Several strands of the argument need to be woven together:

the state of civic understanding and engagement in New Zealand;

elections and the long march to universal suffrage;

the rise and fall of mass membership of political parties in New Zealand;

the changes caused by MMP and the development of multiple political parties;

the funding of elections, political parties and the role of money;

the media and the provision of information about government to the public.

Elections are not enough; a proper functioning democracy must work hard to connect citizens better with the government that is carried out in their name. The lines of public discourse and accountability require improvement. There needs to be greater openness and transparency. There need to be more avenues for public participation in decision-making. A new constitutional design can help to achieve these goals.

We think elections and the policy choices that flow from them are important expressions of the collective or aggregated will of the people. We also believe that better techniques of deliberation could refresh democracy and produce better decisions than are often made. One of the prime aims of our proposed Constitution is to contain power and restrict domination of one group or view.

The question of how to encourage civic literacy and to engage and empower the citizenry in democracies is not a simple issue. Functioning as effective citizens requires a skill set. Politics and government are not central to the lives of many people.[13] Increasing trends of not voting must be a concern, however. Voting is a public act, easy to understand and measurable. Measuring and quantifying other forms of civic engagement is more difficult.

Then there is the issue of trust in political institutions, which is a product of many different factors. Once lost, trust is not easily regained. Max Harris, in his recent book The New Zealand Project, argues that ‘the twin interlocking forces of desensitisation and demoralisation are key to the curtailment of people power’ in New Zealand.[14] His diagnosis may lack empirical proof but it does resonate. Measures do need to be adopted that connect citizens more to government, policy and politics, ensuring that they trust government more and take a bigger part in what it does. What is needed are policy choices that increase civic literacy and engagement.

With this in mind, this book and its proposal for a codified constitution have a central focus on democratic renewal, on deliberative democracy and engagement. A constitution is a road-map to how the country operates. The people and the constitution must be in harmony with one another. It is vital, if this project is to succeed, that New Zealanders have trust in their institutions, that government engages with the people and that democratic legitimacy is renewed and refreshed. These ideas are at the core of this, our second draft of Constitution Aotearoa.

Conclusion

Why have we engaged in this project and what do we hope to achieve?

In short, we want better government, increased democratic accountability, stronger rule of law, more public participation in decisions that affect people and greater rights for citizens. Our 2016 book set out an actual draft of the proposed written Constitution and a commentary on the reasons for the proposals. By making a specific proposal we thought this would provide a focus for the debate.

We were not suggesting that our views and proposals should prevail. We have remained open-minded as to the precise shape constitutional reform in New Zealand should take. Both of us have had the privilege of direct and hands-on experience with the practical workings of the existing unwritten constitution. For Geoffrey Palmer that has been as law professor, MP, Minister of Justice, Attorney-General, Leader of the House, Deputy Prime Minister and Prime Minister, President of the Law Commission, and as a practising lawyer and QC. For Andrew Butler, it has been as a Government lawyer at the Crown Law Office, arguing some of the most controversial cases of the day, and then acting for private clients with an emphasis on human rights, as well as being an academic teaching public and comparative constitutional law.

It is fair to say we are both insiders in the Wellington legal and policy scene. That does not mean, however, that our views are endorsed in official circles or that we know best. Our ideas are merely proposals. They must be tested in the crucible of public debate and analysis. They must be acceptable to the general public.

We have found in our public discussions away from Wellington that relatively little is known about how we are governed, and frankly there is limited interest as well. In many places we found a lack of knowledge about how Government works, even though Government actions affect everybody’s lives. Our ‘insider’ backgrounds have afforded us the opportunity to see both the strengths and the defects of our current system firsthand. Others do not necessarily see the same weaknesses in the existing state of affairs that we have seen up close, though they have probably seen the poor Government decision-making that results from those weaknesses.

As a country we seem to have lost our mojo when it comes to bold and progressive changes. Our profound belief is that New Zealand could do better with its constitution and its governance. It is not as difficult as many think to change things, even constitutions, for the better. We have every hope of this happening.

[1]    Geoffrey Palmer and Andrew Butler A Constitution for Aotearoa New Zealand (Victoria University Press, Wellington, 2016). We also ran a website: <constitutionaotearoa.org.nz>. Much of the book, and further content including blogs and speeches, is available there.

[2]    The Panel was established by the National Government in fulfillment of a promise made during confidence and supply negotiations with the Māori Party during the 2008 elections. It was charged with undertaking a review of New Zealand’s current constitutional arrangements and seeking the views of the public on various aspects of it. See Constitutional Advisory Panel New Zealand’s Constitution: A Report on a Conversation, He Kōtuinga Kōrero mō Te Kaupapa Ture o Aotearoa (November 2013).

[3]    Massey University ‘Election Survey shows widespread discontent’ (June 2017), available at <www.massey.ac.nz/massey/about-massey/news/article.cfm?mnarticle_uuid=9AA7647B-0864-1798-6495-CC7CA330FCAF>.

[4]   Henry Cooke ‘National Party announces $82 million crackdown on methamphetamine use, supply’ stuff.co.nz (online ed, 3 September 2017), available at <www.stuff.co.nz/national/politics/96442150/national-party-anno-unces-82-million-crackdown-on-methamphetamine-use-supply>.

[5]    Cooke, above n 4.

[6]   For example, see editorial comments in ‘Editorial: Human rights are for all, including gang members’ The Press (5 September 2017); and Duncan Greive ‘Mask Off: National decides gang members have “fewer human rights”’ The Spinoff (3 September 2017).

[7]    The Opportunities Party ‘Democracy Reset’ (2017), available at <www.top.org.nz/top4>.

[8]   Green Party ‘Green Party will honour Te Tiriti in Government’ (press release, 6 August 2017), available at <www.greens.org.nz/news/press-release/green-party-will-honour-te-tiriti-government>.

[9]   Green Party ‘Constitutional Lawyer Stands for Greens in Hutt South’ (press release, 31 January 2017), available at <www.scoop.co.nz/stories/PO1701/S00201/constitutional-lawyer-stands-for-greens-in-hutt-south.htm>.

[10]  ‘Jacinda Ardern in The PM Job Interview: “It’s time to talk about a republic”.’ The New Zealand Herald (online ed, 22 August 2017), available at <www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=11908796>.

[11]   Our draft constitution is not long by international standards. Using English translations of constitutions around the world, available through <www.constituteproject.org>, it is clear that our draft is a great deal shorter than the constitution of India, which covers over 260 pages. It is also considerably shorter than most of the constitutions of South America, many of which have been designed in the last decade (see for example the constitutions of Bolivia and Ecuador).

[12]   That is the entrenchment model used in New Zealand since 1956 to protect some core features of our electoral system. See Electoral Act 1993, s 268.

[13]   Henry Milner Civic Literacy: How informed citizens make democracy work (University Press of New England, Hanover, 2002).

[14]  Max Harris The New Zealand Project (Bridget Williams Books, Wellington, 2017) at 243.


Extract from Palmer, Geoffrey, Towards Democratic Renewal, 2018, Victoria University Press, Wellington. 

A Constitution for Aotearoa New Zeland can be purchased here.