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.
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).
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.