Constitutional law expert (and former MP and Prime Minister) Sir Geoffrey Palmer has said that it is “time for New Zealand to draw up its own constitution and a 40-page document would be enough”.
Perhaps it is time to seriously consider a constitution but the 40 page suggestion seems a bit odd. A constitution should be as long as it needs to be.
Stuff: Time for a 40-page New Zealand constitution, says Sir Geoffrey Palmer
Palmer has long advocated greater attention to the country’s constitutional laws but said he had reached “a new plateau”.
In Nelson to address the Spirited Conversations group on this subject, he said he hadn’t before advocated a full written constitution.
The architect of the 1986 Constitution Act and the 1990 Bill of Rights Act, he said an entrenched bill of rights was no longer enough.
“I think you have to look at the basic institutions of government, define their powers and set them out.”
“It would have to be easy to understand. You don’t want it written in legal gobbledegook. It has to be an instrument that ordinary people can get to grips with.”
“The difficulty with our existing arrangements is that they are the the preserve of a constitutional elite who look at these things and understand them and argue about them, but no one else is involved.”
Palmer said the flag debate – he advocated change but didn’t like the new design on offer – showed how passionately New Zealanders cared about national identity.
“It is very interesting to me as a constitutional lawyer to see this quest for identity.
“If you want to know what sort of country you are, the first place you look is your constitution. We haven’t got one in that sense.”
If the flag debate leads on to a serious discussion about whether we have a constitution or not, and if we have one what it should cover, then it will have been a worthwhile exercise and worth the effort and the expense.
Palmer delivered this paper to the Māori Law Review in 2013:
These developments, and indeed later developments, have meant that substantial grievances of the Māori minority have a good chance of being handled in a principled fashion. Insulation from the ravages of extreme opinion has been achieved. The settlements have become mainstream.
We have travelled a long distance with the Treaty, and much of what was proposed by making the Treaty part of an entrenched Bill of Rights has been achieved. Yet the current position with the Treaty does not seem to me to be sustainable long term.It is half in and half out of the legal system.
From a constitutional point of view the developments have been significant, because in many situations the courts are empowered to rule on treaty issues as to whether requirements have been met.
The courts are better protectors of “discrete and insular minorities” than the majoritarian legislature, even under MMP. I remain of the opinion that the Treaty, like the Bill of Rights, should become part of New Zealand’s new superior law Constitution.
We now know a great deal about how the courts will go about the task of interpreting the Treaty, just as we know how the courts go about interpreting the Bill of Rights Act.
We have had more than twenty years’ experience of both. The Supreme Court decision on Mighty River Power in 2013 raised barely a ripple. We cannot go backward on these issues, but we need to summon up the political courage to go forward.
Edited text of an interview with Bill Moore prior to Palmer’s Nelson address:
What will you be talking about tonight?
Sir Geoffrey Palmer: The need to modernise New Zealand’s constitution. The first thing about the constitution is that we never discuss it, and one of the reasons is that you can’t find it anywhere.
We’re very unusual in that respect, almost all countries in the world except three have a written, codified constitution. We don’t.
If we want to find the constitution, first you’ve got to look in New Zealand’s statute book. Then you’ve got to look at some ancient English statutes which are in force here.
Then you’ve got to look as well at very curious instructions to the Governor-General, because that is part of the constitutional structure, the Letters Patent.
Then you’ve got to look at a whole lot of court cases. Then you’ve got to look at a whole lot of commentary. It’s hardly surprising that we have a low level of civic virtue when we can’t find the constitution – and indeed neither can the specialist.
That means in substance that we have a political constitution. It evolves with events. Political events change the constitution. It has very insecure foundations.
We do have more of it written down than we used to, we have the Constitution Act of 1986, we have the New Zealand Bill of Rights Act 1990. What I am saying is, we should write more of it down and we should therefore have some place where people can find out what the fundamental rules of Government are.
Then, when they can read it, you can use that as an instrument of educating people. New Zealanders have no idea what the constitutional arrangements of the country are. They just don’t know.
So how can you have a useful, relevant discussion about the adequacy of your constitutional arrangements if no one knows what they are?
Now that is the fundamental point, and the fundamental argument that I make is that you should write it all down in one place.
One of the things that’s been so interesting in recent months has been the flag debate. What it has said to me is, New Zealanders are very interested in their own identity. They debated it with great passion. It is very interesting to me as a constitutional lawyer to see this quest for identity.
If you want to know what sort of country you are, the first place you look is your constitution. We haven’t got one in that sense.
Then you have to have a debate about what should be in it, then about how you would adopt it. That’s a long debate – but it seems to me that the flag debate has opened up these issues and that is to be encouraged.
I wish New Zealanders would think about these rules under which politics are conducted. They don’t. Most people see the government decision. They don’t really care how it was arrived at.
But the process of arriving at it, the rules of the game are very important, and we on the whole don’t know what they are.
How succinct could that document be?
Sir Geoffrey Palmer: I think 40 pages, I think it could be easily done in that space. It would have to be easy to understand.
A constitution has to belong to the people. We sort of don’t think that here, we think there’s them and us, the governed and the governors, we don’t quite get that this is a democratic government, it’s self-government by us, and that’s how a representative government should work.
Most countries get their constitutions through some sort of crisis.
We don’t have crises here – we’re a pretty well-governed country by international standards. It just could be better, and it would be much better if people understood where they stand in relation to the government. And they tend not to.
What would the fundamentals be?
You would have to set out what the powers of the Parliament are, and what the powers of executive government are. Often in New Zealand people think they’re the same thing. They’re not.
Then you’d have to set out what the powers of the judiciary are. Those are the three main branches of government.
Then you’d have to set out what the powers of the head of state are.
Then you’d want to have the Bill of Rights in it.
How does the Treaty of Waitangi fit in?
Sir Geoffrey Palmer: Well the treaty is, as Lord Cooke once said, the founding document of New Zealand. It actually makes government here legitimate, otherwise it’s a massive conversation.
So you have to give recognition to that. It’s a very controversial subject. When we extended the range of the Waitangi Tribunal back to 1840, I never got as many letters in politics on any subject as on that.
If the treaty means anything, it means that Maori have to be consulted. That’s the essential obligation of it.