Sir Geoffrey Palmer and Andrew Butler have written a book A Constitution for Aotearoa New Zealand which proposes a constitution.
In response Dr Noel Cox a barrister who has been a professor of law, wrote New Zealand doesn’t need a written constitution.
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.
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 warily.
Palmer and Butler have addressed this in Simplified constitution critical for future.
His first point assumes that a written, codified constitution cannot be flexible. We disagree. New Zealand does not need a constitution etched in stone. It needs one with the capacity of being changed either by a referendum of the people or by a special majority of 75 per cent of the members of Parliament.
This is precisely the current position in fundamental elements of the electoral system, guaranteed by section 268 of the Electoral Act 1993; it has been in place in previous legislation since 1956.
We recognise the need to keep the constitution up to date; that’s why we propose it be formally reviewed every 10 years.
Unless our constitutional machinery is kept in good order, it will deteriorate and that is what is happening to it now.
The prime danger with New Zealand’s constitution is that it can be changed at any time with a majority of one in the House of Representatives. That means that anything goes. There are no constitutional restraints except elections.
In theory ‘anything goes’ I guess, but in practice I don’t think anything like that has happened. It could in theory, but so could many things that necessarily be protected by a bit of law or a constitution.
New Zealand is a more stable democracy than many countries who have had constitutions have been.
The US constitution hasn’t avoided a debacle of a election that will result in a very unpopular and flawed president.
Of what does the New Zealand constitution consist? The most recent scholarly answer, not from us, is that the New Zealand constitution is located in 45 Acts of Parliament, including six passed in England, 12 international treaties, nine areas of common law, eight constitutional conventions, three-and-a-half executive instruments, one prerogative instrument, one legislative instrument and half a judicial instrument.
How many New Zealanders can find that material let alone understand it?
How many New Zealanders care? How many New Zealanders would take any notice of a simplified constitution?
Far from being unmanageable, as Cox opines, drafting a written constitution once the Crown is removed makes things much more orderly, understandable, less mysterious and more rational.
Do we want our key laws determined by ‘more rational’ judges rather than by our parliament?
We need to know who has what powers and how they must be exercised.
We should know this, or we should be able to easily find out if anything contentious comes up.
We believe that New Zealanders would welcome the opportunity to sort out where they stand and what they stand for. Based on the huge volume of submissions it received and the many public hearings it held, the Government’s own Constitutional Review Panel in 2013 noted “a consensus that our constitution should be more easily accessible and understood”, and also noted that “one way of accomplishing this might be to assemble our constitutional protections into a single statute”.
I believe that the vast majority of New Zealanders will care little or not at all about this.
A muddled and confused approach is unlikely to be sufficient for the challenges New Zealand will encounter in the future.
Clarity and simplicity are great aims but I’m not sure what constitutional challenges we face. Actually I have no idea.
What is needed is a constitution that sets out the rules, principles and processes about government in one document so they are accessible, available and clear.
We need to eliminate the need for significant unwritten constitutional conventions and customs which are unclear in important respects.
We need greater force in the protections given by our Bill of Rights.
We should at least talk about it and consider options.
Our proposed constitution aims to provide an accurate map about how we govern ourselves. We have already had helpful feedback on what we propose; we seek your views at www.constitutionaotearoa.org.nz.
Submissions seem to disappear into the website at this stage, I presume there will be some publication at some stage.
There is some activity on their Facebook and Twitter links, but the ‘conversation’ doesn’t seem to have ignited the masses yet.