Rob Paterson: Constitutional Change in New Zealand

Introduction: New Zealand is reviewing its constitution but the panel set up to do this review is comprised, not of constitutional experts or representatives of a fair cross-section of the people of New Zealand, but an appreciable number of Maori studies academics, some with strident anti-colonialist views. Discreet and separate Maori and non-Maori consultation is a feature of this review. It is the second constitutional review in seven years and is being undertaken in the absence of a constitutional crisis. The review is being driven at the behest of the Maori Party, a political party that captured just 1.4 percent of the party vote in the 2011 general election.

Current constitutional position:

The Constitution of New Zealand consists of a collection of statutes (Acts of Parliament), Treaties, Orders in Council, Letters Patent, decisions of the Courts and unwritten constitutional conventions. As with the United Kingdom, there is no one supreme document; the New Zealand constitution is not codified or, with the exception of certain electoral law, formally entrenched. New Zealand is a constitutional monarchy with a parliamentary system of government. This system is often known as the ‘Westminster Model’.

The Constitution Act 1986, the principal formal statement of New Zealand’s constitution, describes the three branches of Government in New Zealand; The Executive (the Cabinet), the Legislature (the Sovereign and Parliament) and the Judiciary (Courts).

There are of course many other Public Acts (Statutes) and Conventions that have Constitutional significance in New Zealand.

2005 Parliamentary review:

The Constitutional Arrangements Committee, concluded that:

·         There were no urgent problems with New Zealand’s New Zealand s2(2)) constitutional arrangement and any significant constitutional change should proceed with great care;

·         it is for New Zealand, as a nation, to think and talk about constitutional matters;

·         there is a need to foster more widespread public understanding of the practical implications of New Zealand’s current constitutional arrangements and implications of any change.

The late Lord Cooke of Thorndon submitted to that Review “that no single institution is “sovereign”: the legislative and judicial functions are complementary, and in reality sovereignty is shared between the three branches. He noted that Parliament holds the greatest power but that even this “great power could not confidently and should not be asserted to be unlimited”.

Codified constitution?

In my submission, the current, settled, constitutional arrangements have worked well for many years. During that time, no real constitutional issues have arisen. So does New Zealand need a revised, written, single document, codified, constitution?

Serious constitutional issues are unlikely to arise, unless any sector tries to gain an advantage and impose its will, and so long as all the peoples of NZ are treated equally. The current call for a constitutional review is politically driven, rather than resulting from a genuine need or public call. If citizens understood that, effectively, the Maori Party wants to restrict the sovereignty of Parliament, which is at the heart of New Zealand’s democratic system, and empower unelected Judges with supreme power, perhaps they would become very concerned.

Amending New Zealand’s constitution is of national significance and concern. A constitution not only records how political power will be exercised but also how it will be kept in check which are matters of considerable constitutional significance and therefore any fine-tuning needs to be exercised with all due care and diligence. A constitution after all is the source of the ultimate or supreme law of a country.

Treaty of Waitangi:

Part of the drive for the current Constitutional Review is to enshrine the Treaty of Waitangi as paramount Law of New Zealand. Having regard to the original form of the Treaty (Article 2) there is no need to do that as this refers to “all the people of New Zealand”. It is self-evident and of course the State currently guarantees all these rights to everyone in New Zealand and other than that, it is hard to see how the Treaty has any part to play in a new Constitution. The Treaty in its Maori form is a benign document but the re-interpretations and expansion of meanings in recent years have made it into a very contentious document. Modern self-serving translations of the Treaty language itself and the so-called ‘Principles of the Treaty’ need to be put firmly in their proper place, not become the cornerstones for a modern day New Zealand Constitution.

PUBLIC INVOLVEMENT & PARTICIPATION:

The NZ public could reasonably have expected to be given greater involvement in the Review process, yet the panel have published a strategy for engaging with the public that does not seem to promote that. A genuine consultation process would involve well advertised open public meetings held the length and breadth of New Zealand, including a formal submission process with timeframes to suit submitters to enable full public participation, all minutes taken, meetings recorded and made available as a matter of public record. Instead, the panel has already signalled it intends holding segregated meetings not open to the public. People in NZ, by virtue of race it seems are being treated differently, not as one group of NZ citizens.

Isn’t this how a democracy works or should work on fundamental issues like the Constitution that affect every citizen? Open public meetings and full public discussion with final recommendations put through a rigorous public referendum process.

CONCLUSION:

NEW ZEALAND can by all accounts continue to cope very well with its present non-codified Constitution and there is no need to rush to embrace a codified (single document) Constitution. To date, Constitutional matters have been dealt with in a civilised way and generally over the years, no major constitutional crises have ever arisen. The fact that the way it has proceeded to date is indicative of the Constitution evolving from time to time to meet specific needs and this gives it a flexibility that may be missing in a strict codified Constitution.

Any review of the existing position needs to have the full support of the whole NZ populace and any suggestion of a lack of transparency, openness and honesty will inevitably create civil unrest and public distrust of the whole review process. This looks like the position we now find ourselves in, with the current makeup of the Constitutional Review Committee and limited public consultation the process seems flawed from the outset.

Whatever Constitution NZ adopts or retains, it is essential there is only one class of citizenship allocated and that is a NZ Citizen.

Rob Paterson is a Mount Maunganui lawyer who takes an interest in political and environmental  developments. This is an abridged version of an article first published in the Commonwealth Lawyer (Journal of Commonwealth Lawyers Association) - December 2012 Special Commonwealth Conference, Issue Vol.21 No.3. 

The full article is available for reading and downloading here:
http://www.nzcpr.com/RobPatersonConstitutionalChangeCommonwealthLawyerDec2012.pdf