As concerns with the transparency and accountability of our politicians, and – in particular – the current Government of New Zealand grow, the usual debate about whether New Zealand needs constitutional reform has returned. The status quo supporters who think we have bigger problems to worry about versus a growing group of people who are disenchanted with our declining democracy.
To be clear, New Zealand has no formal constitution. We have a framework of 7 Acts of Parliament, which I list below, which stand in its place. The country relies on a Westminister type system:
- Constitution Act, 1986
- Electoral Act, 1993
- New Zealand Bill of Rights Act, 1990
- Human Rights Act, 1993
- Treaty of Waitangi Act, 1975
- Imperial Laws Application Act, 1988
- New Zealand Constitution Act, 1852
I am of the opinion that we do need a formal constitution for New Zealand. However I am quite clear that any constitutional reform we have must pass two non-negotiable criteria:
- There must be a binding referendum; a super majority in favour is preferable (say 60/40)
- Te Tiriti O Waitangi must be entrenched in any constitution that arises from this
There are a number of forms that a constitution could take if one did arise. One such form would be a limited scope framework that entrenches key legislation, such as the Bill of Rights Act, 1990. It would require Parliament to treaty the Cabinet Manual as the rule book for all governing Parties and possibly introduce a shorter Parliament Manual for all other M.P.’s and Parliamentary quarter officials. No guidance would be given on the size of Government or the functions that it has to take on, beyond what is stipulated in the Constitution.
This is my preference. It is an attempt to acknowledge the problems that I have described below with the other potential constitutional frameworks. It promotes a flexible one not intended to cause or promote entrenchment.
A second one is a more comprehensive – and likely more entrenched (similar in nature to the the U.S. Constitution) – framework that embeds wider aspects of Government instead of leaving them to Ministries/Departments/Agencies of the Crown. The U.S. Constitution sets aside significant powers to the States. James Maddison, one of the chief architects deliberately proposed an adversarial system that encouraged rigorous debate. The right of opponents to challenge Court decisions is intended to prevent Federal overreach.
I oppose this one because it has enabled the two party deadlock in Congress and the Senate. It also actively discourages alternative parties. National and Labour in New Zealand are sufficiently combative enough without adding an American flavour of an institutionalised duopoly. I sincerely doubt most New Zealanders if they knew what this type would enable, would countenance it.
A third one, is something that I thought might be possible: a simple Act of Parliament that can only be repealed after a public referendum super majority, which entrenches the existing constitutional framework; any attempt by Parliament to repeal it without a binding referendum leading to the impeachment of the proponents.
Whilst this is presumably possible, the fact that this variation can be potentially repealed might beg the question of whether it can stand scrutiny in a court of law. If it cannot do that, then there is no place for this kind of constitutional framework.
In the United States the debate over the Constitution is a partisan minefield. While the Constitution clearly has some significant strong points, the entrenched, combative, toxic nature of the debate and the threats to individuals wellbeing if they support such measures is enough to stop most elected representatives from trying, even if they ran on such a mandate.
In New Zealand, anti-Treaty campaigners and activist groups are likely to attempt to hijack any discourse with potentially violent and/or inflammatory rhetoric. This has been facilitated by activist groups such as Taxpayers Union, Hobsons Pledge and Free Speech Union.
However, we need to try to work out a sustainable long term constitutional future for the country. There are several other aspects of our system of Governance that need to be reviewed as well, such as whether a 3 year term is long enough; should we have a New Zealander as a Head of State; an oath of allegiance change to reflect changes in New Zealand society and a removal mechanism for corrupted officials.
What do you think?
If you support proposed changes, is another alternative, simply to overhaul the existing Acts of Parliament?
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