With recent efforts at drafting a constitution for New Zealand stalled, a new and engaging approach is called for. Geoffrey Palmer introduces a fresh project and its core principles.
“A constitution is a human habitation. Like a city, it may preserve its life and its beauty through centuries of change. It may, on the other hand, become either a glorious ruin from which life has departed, or a dilapidated slum that no longer knows the great tradition of its builders.”
These words, by the late Professor Robert Quentin-Baxter, appear at the start of the first chapter of A Constitution for Aotearoa New Zealand, which I have co-written with Andrew Butler, and which was launched last week at the New Zealand Parliament by Grant Robertson MP.
The draft Constitution itself contains 118 articles and the text covers 43 pages. A website has been set up containing the text of the Constitution and chapter one of the book. We have invited submissions and comments on the proposals from the general public.
After a year of further consideration we plan to publish an amended document based on the submissions received, along with our thoughts as to what should happen next.
The project, supported by the New Zealand Law Foundation, also attempts to engage the public through social media such as Facebook and Twitter. The effort to create a conversation on these issues flows from the fact that two official reviews of New Zealand’s constitutional arrangements in recent years have produced no change. My co-author and I believe that the absence of a model with which to engage is partly responsible for this situation.
The proposed Constitution – called Constitution Aotearoa New Zealand – is based on 10 principles:
- Accessibility and certainty
- Rule of law
- Democratic accountability
- Protection of the rights of people
- A sense of national identity
- A New Zealander as Head of State
- Protections against the abuse of public power
- Recognition that the Constitution belongs to the people.
Some of the most important changes under Constitution Aotearoa are:
- New Zealand should become a republic.
- The Head of State should reflect New Zealand’s national identity, culture and heritage, and should be appointed for a term of five years on a free vote in Parliament, safeguarding the independence and neutrality of the position. This is quite different from the way the Governor-General is appointed at present.
- The duties and functions of the Head of State, largely mirroring those carried out by the Governor General now, should be set out clearly in the Constitution.
- There should be a fixed four-year parliamentary term.
- Select committees should be able to make new legislative proposals to the House of Representatives.
- A 75% majority in Parliament should be required for urgency to be taken in passing law.
- More checks and balances, including a stronger Bill of Rights and making more information available before legislating.
- An independent Speaker will be elected by the House on a personal conscience vote. The person should not be the Government’s nominee, as is the case at present.
- Constitution Aotearoa more clearly sets out the structures and powers of Government and the limits on that, including the roles and function of the Prime Minister.
- The Cabinet is limited to 20 members, with up to five other ministers outside Cabinet. The position of Under-Secretary will be abolished.
- The House of Representatives will elect the Prime Minister.
- The Prime Minister’s ancient powers of advising on proroguing or dissolving the House will be abolished.
- The current structure of the senior courts of New Zealand continues.
- Judges’ protections against removal from office and reductions to their salary continue.
- The compulsory retirement age for judges is raised from 70 to 72.
- A Judicial Appointments Commission to oversee the appointment and promotion of judges is established.
- The courts are empowered to declare Acts of Parliament invalid to the extent that they are inconsistent with the Constitution. But, importantly, the Courts won’t have the final word. First, amendments to the Constitution are allowed either by 75% of MPs or by public referendum. This follows the established tradition in New Zealand dating back to 1956 entrenching certain provisions of the Electoral Act against change by a simple majority in the House of Representatives. Second, we propose that 75% of MPs can override a particular court decision on the application of the Constitution.
- The Treaty of Waitangi is incorporated within Constitution Aotearoa to make its status clear and certain.
- The human rights protected by the Bill of Rights is broadened to more closely reflect the range of rights actually recognised across our legal system and in international human rights treaties. The ability for the institutions of the State to place reasonable limits on those rights where they can be demonstrably justified, as the current Bill of Rights Act allows, is retained.
- New rights are created including:
- Against slavery and servitude
- Security of the person and right to privacy
- Right not to be arbitrarily deprived of property
- Right not to be discriminated against on the grounds of gender
- Right to a free primary and secondary education
- Right to an environment not harmful to health and to protect the interests of future generations.
- Anyone who claims that their rights have been unjustifiably infringed upon can approach the courts for a determination.
Among efforts to strengthen checks and balances are:
- Setting up a new independent Information Authority to restructure the administration of official information and improve transparency.
- Including certain principles in the Constitution to reinvigorate the public service and protect its values.
- Reinforcing the constitutional significance of the offices of the Attorney-General and Solicitor-General.
- A revised approach to, and more transparent oversight of, the intelligence agencies.
- Constitutional protection for local government.
- No international agreement shall be binding on the State unless a Cabinet decision on it has been approved by a majority of the House of Representatives.
- Any declaration of war must be approved by a majority of the House of Representatives.
- There will be no significant contribution of forces to, or for any purpose of, the United Nations or other international arrangements without the prior approval of the House of Representatives.
- The legal grounds for participation in all such activities shall be presented to the Parliament in an opinion of the Attorney-General.
To ensure the Constitution remains current and effective, a Constitutional Commission should sit every 10 years to review the Constitution. Otherwise it will easily fall out of line with the existing realities and aspirations of the people.
Read more about the Constitution for Aotearoa New Zealand here.
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