In a previous blog post former New Zealand Prime Minister Sir Geoffrey Palmer explained why he believes that a single written Constitution for New Zealand is needed. Here, he sets out the key provisions of a draft Constitution included in a new book that he has written with Dr Andrew Butler. Comments on the proposals are now being sought from the general public and it is intended that an amended document will be published in a year’s time.
On 21 September at the New Zealand parliament A Constitution for Aotearoa New Zealand, written by myself and Dr Andrew Butler, was launched by Grant Robertson MP. In the book it is argued that a single written Constitution for New Zealand is needed and a draft is proposed. 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. We think that the absence of a model with which to engage is partly responsible for this situation.
The draft Constitution itself contains 118 articles and the text covers 43 pages. It is called Constitution Aotearoa and is based on ten principles:
- Accessibility and certainty
- Rule of law
- Democratic accountability
- Protection of the rights of people
- A sense of national identify
- 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 are:
- New Zealand should become a republic;
- The Head of State should reflect New Zealand’s national identity, culture and heritage, and would 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 form 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 per cent majority in prliament should be required to allow 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 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 has been 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;
- The protection of judges against removal from office and preventing the reduction of a judge’s salary are continued;
- 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 per cent of MPs or by public referendum. This follows the long established tradition in New Zealand dating back to 1956 that entrenches certain provisions of the Electoral Act against change by a simple majority in the House of Representatives. Second, we are proposing that 75 per cent 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;
- On human rights, the range of rights to be 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 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 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; and
- 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 ten years to review the Constitution. Otherwise it will easily fall out of line with the existing realities and aspirations of people.
A website has been set up containing the full text of the draft Constitution and chapter one of the book. We have called for submissions and comments on our proposals from the general public, and will attempt to engage the public through social media platforms such as Facebook and Twitter. After a year of further consideration it is planned to publish an amended document based on the submissions received, along with an expression of view as to what should happen next.
A Constitution for Aotearoa New Zealand (Victoria University Press, 2016), by Sir Geoffrey Palmer and Dr Andrew Butler, is available to order at this link. The project is supported by the New Zealand Law Foundation.
About the author
Rt Hon Sir Geoffrey Palmer QC was Prime Minister of New Zealand from 1989 to 1990, and before that Deputy Prime Minister from 1984 to 1989. He is now a barrister, Master of the Bench of the Middle Temple, Distinguished Fellow at the Faculty of Law at Victoria University of Wellington and a Global Affiliated Professor at the University of Iowa.