The Future of the New Zealand Constitution – Some Tentative Ideas

Below is my submission to the New Zealand Constitutional Advisory Panel on the future of the New Zealand constitution; I’ve talked a bit about the form of the constitution, the status of the Treaty, and the place of the Bill of Rights Act, amongst other topics.  The submission represents only some tentative ideas, written out in a hurry – but as always, I welcome any disagreement or discussion about the points I’ve sketched out.

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This submission is split into two parts: first, I discuss the form and force of New Zealand’s constitution; and secondly, I discuss the possible content of that constitution, touching on the preamble, the Bill of Rights, and the Treaty of Waitangi.

 (i) The form and force of the New Zealand constitution: codification and entrenchment

Talk of New Zealand getting “a written constitution” can be misleading, not only because our constitution is already partly written down (in the form of the Constitution Act 1986, and other statutes and case law) but also because having “a written constitution” often refers to two separate issues: codification and entrenchment.

With that initial point clarified, I support both codification and entrenchment of New Zealand’s constitution.  Our constitution would be more accessible if it were set out in a single document (that is, for our constitution to be codified).  While many constitutional scholars will say that New Zealand has an unwritten constitution, there is actually stark disagreement over what is in it, even amongst the most erudite constitutional law academics; this uncertainty can be minimized through the process of codification.  And our constitution would be more robust if it were made more difficult to repeal (that is, if our constitution was entrenched).  It is not legally correct to say that laws can only be struck down if they are entrenched.  But it is a convention that entrenchment results in a strike-down power, and entrenchment gives symbolic force to a document as important as the New Zealand constitution.

Why are accessibility and robustness important values? A constitution must be owned by all New Zealanders, and for that to happen, it must be known by all New Zealanders – and be accessible.  Further, it is inherent in the idea of a constitution that it has some higher status – some superior normative or legal force – and robustness helps to realize this ideal.

The claim that entrenchment is anti-democratic reflects a simplistic understanding of what democracy is.  Democracy is not just about head-counting and box-ticking on election day every three years.  It is about a combination of majoritarian-supporting process and minority-protecting values.  Countries that we understand to be democracies do not hand over every decision to a majority vote: the New Zealand democracy we have at the moment allows unelected public servants to wield power, gives authority to unelected judges, and extends significant influence to the unelected Governor of the Reserve Bank, to take just three examples.  It is entirely consistent with democracy to allow for entrenchment.

So, to summarise so far: New Zealand’s constitution should be set out in one document, “The New Zealand Constitution”.  And that document should be protected from easy legislative overhaul; I suggest that it should require a 75% majority of Parliament for any amendments to be made to the New Zealand Constitution.

(ii)  The content of the New Zealand Constitution: the preamble, aspects of the Constitution Act 1986, a modified version of the New Zealand Bill of Rights Act, and the Treaty of Waitangi

The question of what should be in the New Zealand Constitution is far more difficult.  But I think it is crucially important that the New Zealand Constitutional Advisory Panel offers some suggestions on this point, if it suggests a codified and entrenched constitution.  For too many years academics have been encouraging “greater debate” and “more discussion”.  The admirable consultation process undertaken by the Constitutional Advisory Panel represents that debate and discussion.  Now is the time for concrete proposals.  Let me outline my personal view of a possible proposal.

The New Zealand Constitution should contain a preamble, which ought to reflect New Zealand’s national values.  Further consultation might reveal what those values should be, but possible contenders are: equality, fairness, biculturalism, tolerance, and dignity.

Any constitution needs to contain some “nuts and bolts” provisions with guidance for how the separation of powers, for example, should operate.  I suggest that Part I of the New Zealand Constitution should contain such “nuts and bolts” provisions.  These can be largely lifted out of the Constitution Act 1986.

Part II ought to contain a modified version of the Bill of Rights Act 1990.  Human rights are the minority-protecting values, which I referred to earlier, that ought to complement majoritarian-supporting process.  They are now almost universally acknowledged to be the natural language in which constitutions are couched and expressed.  The current list of rights in the Bill of Rights is appropriate and effective, and has been well-developed by the courts.  I would suggest, though, that several minor amendments are made.  A provision on remedies should be added, making clear that judges have strike-down power in the event of legislation being inconsistent with the Bill of Rights, and codifying the courts’ current jurisprudence on Bill of Rights damages and other remedies.  (It may be that some flexibility should be built in here, and that there be reconsideration of the decision of the majority of the Supreme Court in Attorney-General v Chapman, which in effect restricts the scope of Bill of Rights damages.)  As well, certain social and economic rights should be added: I suggest that, to begin with, these rights are the right to education, the right to health, and the right to housing.  These are rights that have a strong pedigree in international law and that have been made justiciable in other jurisdictions, for instance South Africa.  Moreover, most ordinary New Zealanders would suggest that shelter (housing), schooling (education), and healthcare are the basic human interests that every person deserves: so it seems odd that these interests are not currently included in the Bill of Rights.  Objections about polycentricity, resource allocation, and indeterminacy are overstated and can be rebutted through careful consideration of overseas jurisdictions (such as South Africa); I would be happy to elaborate on this point if given the opportunity.  I would suggest that there is no need for a right to property to be included: this right is not so well-developed in international law and is sufficiently protected through other legislation.

What status should be given to the Treaty of Waitangi? The Treaty is New Zealand’s founding document; we all would not be here without it.  I suggest that it would be inappropriate to allow the Treaty to be amended, given its historical existence and force.  However, it would be ignorant of our own past for the Treaty to be left out of a constitutional document altogether.  The best and most innovative way to give the Treaty constitutional effect, in my opinion, would be to refer to it in the preamble of the New Zealand Constitution, and to adopt an approach used in Ireland and India: that is, to include the Treaty under a heading, “Directive Principles” (Part III).  This Part would say that the Treaty is to inform the interpretation of the entirety of the Constitution.  Allowing the Treaty to be implemented via “Directive Principles” would allow courts to draw on existing jurisprudence on Treaty principles, and would allow the Treaty to colour all of New Zealand’s constitutional law.  It would also give an indigenous New Zealand interpretation to the rights listed in Part II of the Constitution.  Some worry about the power of the Treaty, and “special privileges” for Maori.  However, while the Constitutional Advisory Panel ought to listen carefully to all views, it need not adopt all views; especially those which adopt scaremongering tactics or which are based on incorrect views of the law.  We do not make policy, far less constitutions, for racists.  The Treaty must play a role in New Zealand’s constitutional arrangements, and including the Treaty – not excluding it – is the most promising route towards national pride and unity.

To recapitulate in simplified language, I suggest that the New Zealand Constitution should have a preamble; Part I, which can be lifted from the Constitution Act; Part II, a modified version of the New Zealand Bill of Rights Act 1990; and Part III, giving the Treaty of Waitangi force as “Directive Principles” (but with the Treaty appended in the constitution itself).

Conclusion

It’s become a mantra to claim that New Zealanders are apathetic, especially over constitutional issues.  But I’ve never thought this to be the case.  New Zealanders have opinions, sometimes strong opinions, and how we organize power in our society is a topic that animates our minds.  So it is important that we build on existing interest in our society – interest that may be growing amongst young people.

In building on that interest, I think it is important that we craft a constitution that does not play down to divisive fears, but instead lives up to our rich potential as a nation and our decent instincts as human beings.  My personal view is that the best way to live up to that potential is to codify and entrench a constitution containing aspects of the Bill of Rights and the Treaty – a view that I have tried to sketch only in outline here.

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7 Responses to The Future of the New Zealand Constitution – Some Tentative Ideas

  1. Ellipsister says:

    Enjoyable to read and I can appreciate why you would support constitutionalism. But I disagree with your argument that implies anti-constitutionalists have a simplistic understanding of democracy. I agree that those who consider representative democracy to be the full story have a simplistic understanding of democracy, but not all anti-entrenchment/anti-constitutionalists consider democracy in such simplistic terms.

    I am anti-constitutionalist and I appreciate that I am in a minority in taking that position. However, in my view entrenchment is anti-democratic because it binds future generations to a set of rules determined either by the political elite/ruling class at the time the constitution is entrenched or if its intended as a living document, by subordinating the individual to the values of the majority of the day. In either case, it does not do what it is intended – it does not protect minorities – it reinforces the role of the political elites and the dominant group in society. My view is that individuals should be entitled to participate in the decision-making that affects them via direct democracy and that constitutions, particularly the one envisioned for NZ does not serve that end.

    [Admittedly, that is a very brief summary of my opposition but if interested you can read more at the links below:

    http://ellipsister.wordpress.com/2013/07/05/why-im-against-a-constitution-in-aotearoa-new-zealand-part-i/

    http://ellipsister.wordpress.com/2013/07/31/why-im-against-a-constitution-in-aotearoa-new-zealand-part-2/ ]

  2. mxharris says:

    Thanks for your thoughtful comment. I hear what you are saying about how entrenchment binds future generations and can thereby reinforce the role of political elites. My gut reaction would be that there’s not a total binding of future generations through entrenchment – constitutional amendment by future generations is always possible; we just require a different type of law-making (where a higher majority is needed for a law to pass) for a constitutional amendment to happen. Future generations are not bound in the sense that they have no way out of constitutional commitments: constitutional commitments can still be changed. I’d also say that we bind future generations in lots of ways that I think you and I would find acceptable – for instance, when we set climate change targets for future generations to meet. The targets we set today create obligations for those in future – and is there anything inherently wrong with those? (I accept, of course, that these targets are not entrenched in the same way.) But these are pretty superficial replies to your objection – so I’ll read your posts and get back to you! 🙂

  3. Philip McKibbin says:

    A thought-provoking piece, Max!

    I’m not yet sure what I think about the future of our constitution…

    But here are some thoughts that I had reading yours:

    1. I like your suggestions for a ‘Preamble’. I wonder whether this – alone – might contain all of the ‘cultural’ component of our codified constitution? The Preamble, then, might be a short historical ‘survey’… and only that (‘against’ over-reaching nationalism, and open to future purposes).

    2. The suggestion that the Treaty of Waitangi might be allowed to bear on all interpretations of any part of our constitution is, I think, too strong. The Treaty is an overly simple document, and its implications are too complicating. Such a provision would, I think, detract from some of the benefits that a codified constitution might bring…

    3. You mention three basic human interests (shelter, schooling, healthcare), but I would suggest that one more should be added: the interest that all of us have, and should have for each other, in food – which I would probably phrase as ‘an interest in adequate nutrition’. This is, obviously, fundamental… It’s true that one cannot have good health without adequate nutrition – but health and healthcare are different things. (On that note: if our interest in healthcare was to be phrased as an interest in health, we could pull other things, including access to healthcare, out of it – like a right to clean air, for example…)

    4. I agree with your suggestion that ‘property’ could be less of a priority than it seems to be in many people’s thinking about rights. Nussbaum (from memory) mentions the right to hold property ‘including land’ – which is, it seems to me, unnecessary… and, potentially, ‘unsustainable’.

    There it is. Thanks for the interesting read!

    • mxharris says:

      Phil, thanks for your comments – which were as considered and interesting as ever – and apologies for this late reply. Here are the thoughts that occur to me after considering your points:

      1. I’m glad you like the idea of a Preamble in the style I’ve suggested, but I wonder whether it’s too ambitious to expect a Preamble to capture in whole the cultural components of a written constitution. (Maybe I’m missing your point; let me know if so.) At most, I think the Preamble can point to some prevailing cultural values, but any written constitution will have to be humble enough to acknowledge that values may change, and that the constitution may not be able to encompass all existing national values. I’ll leave your point about over-reaching nationalism, which we’ve discussed before and could really get me started into a longer post!!

      2. I think you’ll need to be more specific here: why would it be too strong for the Treaty to bear on all interpretations of the Constitution? You seem to suggest that the Treaty’s simplicity means that my proposal gives the Treaty more weight than the Treaty itself can bear. But judges and policy-makers have already used the Treaty in a quite wide-ranging way. And I think the Treaty is quite rich in content, and capable of being applied in different contexts.

      3. I agree with you that the human interest in food is fundamental and at least as important as interests in healthcare, housing, and education. I suggested that healthcare, housing, and education be the first social and economic rights to be included, because there is the most international jurisprudence on these rights – so they are relatively “safe” for inclusion. But I would like to see a right to food in New Zealand’s Constitution in the long-term. I think it could be interpreted in a sensible way, but also in a way that ensures a minimum level of decent nutrition for all those who need it in Aotearoa. You’re also very right, by the way, to say that out of broad interests such as the right to health, courts could infer other rights, such as a right to clean air. Indian courts have done this kind of thing (drawing out a right to a clean environment out of the right to life) in a fairly principled manner.

      4. Glad you agree on property! We may be in a minority on this one; I’m not sure. There may actually be real value in surveying New Zealanders to ask what rights matter to us all most …

      Thanks again for your thoughts!

  4. Pingback: Living Up to The Dream | hikarublack

  5. D C K says:

    Well considered views man, one can only hope the panel is on a similar path. My only addition (and I’m aware I’ve come to this late, but hey – exams just finished) would be the inclusion of some environmental rights. It is crucial that our constitution not only provide for the people of this country, but also the environment that we all depend on. My dissertation (which I’m about to submit) deals with this in much greater detail and I’ll be publishing bits from it in due course, but in the meantime, if you are interested, here’s my own submission to the Constitutional Conversation.
    http://elhombredelsur.com/2013/07/04/the-constitutional-conversation-my-aspirations-for-aotearoa/

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