“New Zealand doesn’t need a written constitution”

Dr Noel Cox, a barrister in Auckland, previously professor of law at Auckland University of Technology and more recently at Aberystwyth University in the UK, writes about Geoffrey Palmer’s campaign for a New Zealand constitution.

NZH: Noel Cox: New Zealand doesn’t need a written constitution

Former Prime Minister Sir Geoffrey Palmer is promoting a written constitution for New Zealand, arguing it is necessary because the current constitution is not readily accessible to the non-specialist.

Two principal difficulties immediately come to mind. The first is the question of a written entrenched constitution (one changeable only by a special process), and the second is the (not unrelated) issue of the Treaty of Waitangi.

Flexibility versus an entrenched constitution.

In the modern world New Zealand, together with the United Kingdom and Israel, are exceptional in not having a codified, usually entrenched, constitution. Unlike the United States, Canada and Australia – not coincidentally all federal systems – New Zealand cannot look to one single document embodying its constitution.

But, although the provisions of the Constitution Act 1986 are not entrenched, and major constitutional changes could legally be effected virtually overnight by a bare majority of the House of Representatives, the issue is not purely or even mainly the legal one of entrenchment.

The approach of the New Zealand constitution is one of flexibility. The written rules are underpinned by what are called conventions. These are rules of political practice which are regarded as binding by those to whom they apply.

Laws are enforceable by the courts, conventions are not. The major convention upon which the constitution is built is the constitutional principle known as the rule of law. This is based upon the practice of liberal democracies of the Western world. It means that what is done officially must be done in accordance with law.

In Europe, where an entrenched constitution is the touchstone for legitimacy of government, there might be a general grant of power to the executive, and a bill of rights to protect the individual. In the New Zealand tradition public bodies must point to a specific authority to act as they do.

Thus we rely upon numerous specific grants of authority to the various organs of government, a much more flexible approach.

Constitutions don’t prevent problems of governance.

An entrenched constitution is no guarantee of better government, nor necessarily an effective limitation on excessive legislative, executive (or judicial) independence. Those countries which suffer most from military coups, revolutions, putsches and similar upheavals normally have (ostensibly) entrenched codified written constitutions.

The Treaty of Waitangi is a key consideration.

A more important factor to consider, and one which might point the way to the adoption of a new theory of government (one in which entrenchment, should this be necessary or desirable, is possible) is the position of the Treaty of Waitangi.

The Treaty is now politically all but entrenched. It occupies an uncertain place in the constitution. Parliament has never doubted it had full authority despite the Treaty. There have been some signs this orthodoxy may be challenged, but it is difficult how this could be done in the absence of an entrenched constitution and a Supreme Court on the American model.

The Treaty is criticised a lot but is an important part of what modern New Zealand is.

Cox concludes:

As will be seen from this cursory examination of two issues, any serious revision of the constitution risks rapidly becoming an unmanageable exercise. Although the general public may not be overly concerned with esoteric concepts of constitutional theory – public involvement with the reviews of 2004 and 2013 highlighted this – any reform must first seriously consider the theoretical basis of our legal and political system. This is especially important in view of Māori claims for sovereignty.

It might be worthwhile looking at solutions within the existing structures, rather than to call for the codification and entrenchment of the constitution.

Unless they are prepared to wrestle with large issues, most contentious of which is the Treaty of Waitangi, or entrenchment, proponents of constitutional reform should tread wearily.

If it ain’t broke why try to fix it?

New Zealand functions relatively well under the current constitutional laws and conventions.

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10 Comments

  1. Alan Wilkinson

     /  7th October 2016

    I think the main purpose of the current constitution proponents is to entrench the ToW and cement their credentials as SJWs while at the same time increasing the power and relevance of their own legal profession.

    Reply
    • artcroft

       /  7th October 2016

      Yes, the lawyer class trying to elevate the power and wealth of the lawyer class. Who’d have thunk?

      Reply
  2. Ray

     /  7th October 2016

    I tend to agree Alan, I definitely don’t see how democracy is enhanced by having a bunch of unelected lawyers having the keys to what happens when the elected representatives try to make changes to the laws of the Country.

    Reply
  3. Corky

     /  7th October 2016

    So if I understand him correctly, New Zealand has a mesh mash of so-called flexible conventions, no oversight, with parliament having absolute power. Add to that an unratified treaty that can,and is,interpreted in many different ways and has many pseudo legalities attributed to it, which can, and cannot be ignored….and Dr Noel would have us believe everything is Kapai. What I don’t like about our present set-up is the fact we don’t have a second amendment- like convention. I have no legal power to protect myself from fellow citizens or the government using firearms ( deadly force). John Banks tested this by going to a police station and applying for a firearms license. When asked why he wanted the license he said self protection. Apparently the police officer went berserk and told Banks to stop wasting his time. I believe Banks.

    Reply
  4. MaureenW

     /  7th October 2016

    I don’t see much point in having a Constitution when New Zealand merely rolls out the policies of the US and UN. I can’t remember the last time we rolled out anything that was uniquely NZ. Anyone??

    Reply
    • Gezza

       /  7th October 2016

      The RMA? 😳

      Reply
      • MaureenW

         /  7th October 2016

        That was 1991 I believe – so, 26 years ago? Globalisation is being rolled out, whether we like it or not. The left/right paradigm is just a side-show – bread and circuses.

        Reply
  5. “The major convention upon which the constitution is built is the constitutional principle known as the rule of law. This is based upon the practice of liberal democracies of the Western world. It means that what is done officially must be done in accordance with law.”

    The rule of law is a collection of maxims which express ideas like the presumption of innocence and the relationship between law and equity. The maxims are based on contemplation of law, not on the contemporary practices of the west. There is a massive gulf between what should be done officially (i.e. the ideals of the common law) and the actual practice of those with political power.

    The fundamental problem is that the common law is inherently theistic while modern political power is typically expressed in a secular context.

    Reply
    • Gezza

       /  7th October 2016

      “The fundamental problem is that the common law is inherently theistic while modern political power is typically expressed in a secular context.”

      All very well, but what if only the ‘istic’ exists & there’s no ‘the’ 😳

      Reply

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