Politics

The row over gangs and human rights is an argument for, not against, a written constitution

At the start of the week the National Party took aim at gangs, prompting a debate around human rights. It all underlines how New Zealand would benefit from a written constitution, argues constitutional lawyer Andrew Butler

It’s not about gangs. It’s about all of us.

Human rights are about making sure that every individual is treated with respect and dignity and treated fairly by people who are exercising public power, whether they be police officers, ministers of the Crown, judges or parliament. They are universal.

In the real world, the effectiveness of human rights depends on two interrelated things: community support and legal enforceability.

In announcing a policy granting police powers to search gang members at any time, Paula Bennett said – and later corrected – that some people had “fewer human rights”, while Bill English suggested that it was to New Zealand’s advantage that there was no written constitution. Photo by Jeff Brass/Getty Images

In New Zealand, human rights has broad public support. It’s part of who we are; it’s part of our “fair go” culture. No one is intrinsically better than anybody else; everyone should be given a fair crack of the whip. Things should be done in the right way. We are upset when things aren’t done the right way and people suffer; take the recent case of Teina Pora. Pora had the misfortune of being caught up in the maelstrom at a time of justifiable concern at crimes involving home invasion. Looking back now, over 20 years ago, did we as a community do the right thing by him?

The fact that the prime minister has come out strongly stating “It is clearly not the case that some New Zealanders have fewer rights than others”, is a really important and welcome affirmation of the basic Kiwi fair go culture.

But enforceability is where we are weak.

While some think it’s a good idea not to have a written constitution so that the government can make whatever laws it thinks – pragmatically – it can pass (even ones contrary to human rights), many don’t agree.

Parts of our community have been victims of quite breathtaking human rights breaches. A few years ago, some parents challenged policies that excluded them from being paid for looking after their adult disabled children. They won their case at every court level. Parliament’s response? Passing a law in one sitting day, with no select committee or public consultation. Sure the law now allows some of the parents to be paid, but many are not. And the law expressly allows those parents and their children to be discriminated against into the future. Until the law is changed there is nothing anyone, even our courts, can do about it. That’s because in New Zealand, unlike in most western democracies, our bill of rights is subservient to parliament. Parliament can do what it likes. And it does.

For years, the UN’s Human Rights Committee has recommended that we take a hard look at this and strengthen the enforcement of human rights. And in 2013, the Government’s own Constitutional Advisory Panel noted: “Many people expressed unease – and surprise – that Parliament can pass laws which are contrary to the New Zealand Bill of Rights”.

In our book, A Constitution for Aotearoa New Zealand, Geoffrey Palmer and I make the case for ringfencing some core Kiwi values, like human rights, so that we don’t have our basic rights being bartered in the political sphere.

And it’s not a left-right thing either. Since the Bill of Rights came into force in 1990, governments of both colours have passed laws that they have admitted breach human rights unjustifiably. “Power tends to corrupt, and absolute power corrupts absolutely”, said Lord Acton (a noted 19th century English politician). We would do well to remember that, whoever holds power, regardless of political background, suffers from this infirmity; it is part of the human condition. We know it, and we should act upon it. There are a lot of people in the US at the moment who are very glad they have a written constitution just now.

There’s no right to bear arms in our proposed constitution. And we recognise that there would need to be some flexibility for change over time. No one wants the judges making all the decisions forever, so we support the idea that the constitution can be amended by binding referendum, just like changes to our electoral system at the moment.

In our view, recent events here and overseas mean that now’s a good time to consider a written constitution. Join the conversation at www.constitutionaotearoa.org.nz or on Facebook.


Dr Andrew Butler is a partner at Russell McVeagh, Wellington. He is a constitutional lawyer and human rights expert. Together with Sir Geoffrey Palmer, he has published a book proposing a draft written constitution for New Zealand, A Constitution for Aotearoa New Zealand.

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