Mike Butler: Be careful with the constitution

The constitution is not broken, there is no urgency for change, and any change should be done carefully with widespread support, an inquiry to review New Zealand’s existing constitutional arrangements in 2005 concluded. That review is a logical starting point to analyse the current review, which is a a joint initiative of the Maori Party and National.

The 2005 panel, which received 66 submissions and heard from senior jurists and academics, recommended that parliament should designate a select committee to identify and deal with changes with constitutional implications as they arise (page 5)

Noting a widespread public lack of awareness of constitutional matters, the Peter Dunne chaired panel recommended that accurate, neutral, and accessible public information on constitutional issues should be provided, that a generous amount of time should be allowed for consideration of any particular issue.

There should be specific processes for discussion within Maori communities on constitutional issues, although inquiry member Stephen Franks of the ACT Party dissented, saying that it was inappropriate for a government to engage separately with tribal groups on constitutional change in a manner not available to other citizens.

Increased effort was urged to improve civics and citizenship education in schools.

The panel noted that New Zealand’s constitution was not in crisis, and concluded that “the lack of consensus on what is wrong, and how or whether it could be improved, means that the costs and risks of attempting significant reform could outweigh those of persisting with current arrangements”. (page 7) The late Lord Cooke of Thorndon, the former president of the Court of Appeal who conjured up the principles of the Treaty of Waitangi, agreed in his submission that the constitution was not broken. (page 8)

However, some Maori submissions argued that change was necessary, and necessary now. The Treaty Tribes Coalition, especially South Island tribe Ngai Tahu, maintained “that the greatest shortcoming of New Zealand’s current constitutional arrangements is their failure to fully recognise the fundamental significance of the Treaty of Waitangi”. (page 8)

Minor constitutional repairs here and there had unintended consequences, the inquiry noted, citing the conferring of powers of general competence on local government, the postulation of “principles of the Treaty of Waitangi” in legislation and the judges’ role in elucidating them, and the question whether state education is required to be secular. (page 12)

The inquiry identified the important constitutional questions for New Zealand. They were:
1. The relationships between Parliament, the executive and the courts.
2. The relationship between the constitution and the Treaty of Waitangi including whether it should, or how it might, form superior law.
3. The functions and nature of the most appropriate head of state for New Zealand ncluding the effect of any change to the balance of power.
4. The relationship between New Zealand institutions of government and international law-making bodies, including questions about the way in which the government can enter into international commitments; and whether international laws can become part of New Zealand domestic law directly, without parliamentary involvement.
5. Whether, in the absence of deliberate decision, inevitable evolution (particularly the pressures of unplanned events or jockeying between institutions and powerful individuals) will change the constitution in ways that the people would not choose if given the choice. (pages 15-16)

The inquiry warned that “pushing a constitutional agenda can raise the national temperature and generate resentment. This would be unfortunate, especially in relation to inherently intractable issues that may not yield a quick resolution. Any move towards significant constitutional change needs to be approached with great care and a genuine commitment to full and informed public debate.”

The panel warned that a “top-down” attempt to force constitutional change without debate is more likely to have an adverse effect, adding that “it contributes to the fears of many, and it creates a risk that the courts and other agencies involved will lose legitimacy.

The only rules about constitutional change that require something more than ordinary legislation are the handful of entrenched provisions in the Electoral Act 1993 and the Constitution Act 1986.

Australia conducted a debate on all aspects of the constitutional system through the 1990s. The Constitutional Centenary Foundation assisted informed public debate and produced A Report on A Decade of Experience 1991–2000 (www.centenary.org.au)

Key points made in the Australian report include: Overwhelming public support for referenda as part of constitutional change, public concern about the lack of public knowledge and understanding of constitutional issues, and the importance of establishing public trust in the process by ensuring that public information is accurate, reliable, impartial, independent of party politics, and are conducted in a way that avoids unnecessary division and controversy while still enabling free expression of views. (pages 22-23)

If any proposed constitutional change calls into question aspects of the relationships expressed by the Treaty of Waitangi, the inquiry thought it would be important to be able to demonstrate support from Maori. However Franks dissented, arguing that such views attribute a breadth and import to the simple provisions of the treaty that are entirely unwarranted. He considered that the inclusion of a powerful protection of property rights, prohibiting significant takings without compensation, and perhaps a comprehensive prohibition on race discrimination would correctly translate the treaty to modern law. (page 23)

Franks also said that the time is overdue for codifying in law a requirement for ratification of significant constitutional changes by referendum, or at least a “super-majority” in parliament. He considers that the majority preference for the status quo leads to suspicion that it is designed to allow significant constitutional changes to be made without an adequate mandate, and often without appreciation, even by ruling party members, of their significance.

Appendix B of the report has a useful 55-page outline of New Zealand’s constitutional milestones since 1835

Sources
Inquiry to review New Zealand’s existing constitutional arrangements, 2005, http://www.converge.org.nz/pma/cacrep05.pdf, page 5.