New Zealand's Constitution: Having the conversation
I love to talk about New Zealand’s constitution; I find it endlessly fascinating which makes me very odd, as far as New Zealanders go. Most of us will not have given our constitution a moment’s thought and might be under the misconception that we don’t have a constitution at all. We find mention of it dull and intimidating in equal measure.
When I teach students about the constitution I hope to make them aware that New Zealand does have a constitution, albeit one that operates differently from most other western democracies. I explain that our constitution is “uncodified”, which means that it is not written down in one place. It is also “non-entrenched”, which means that Parliament can make changes to almost all of our laws with 51 per cent support. In short, our Parliament enjoys “supreme sovereignty”, it is extremely powerful and our courts cannot declare laws “unconstitutional” – they can only interpret those laws.
I like to throw in examples to show that constitutions are all about power and rights, and to wake up students in the back row. “If Parliament decides to forcibly take the babies of beneficiary parents into state care, it can, if it has 51 per cent support in Parliament.” Most students look quite complacent about such a provocative scenario (that would never happen in New Zealand), but not all of them. On one occasion, as the class finished, a recently-arrived exchange student rushed towards me clutching her notes and looking desperate. “You people are insane!” she cried. “It’s not safe here!” she added, as she ran for the door.
I often think of that student when I talk to people about our constitution. Are we insane? There are only two other Western democracies with constitutions like New Zealand’s – Israel and Britain. Most nations have codified (written) constitutions, which are entrenched to some extent; in other words, their rules about power and limits to power are found mostly in one document, and it is hard for governments to change those rules; they are supreme law that requires much more than a simple majority to amend. More importantly, the courts play a greater role in limiting the power of government.
New Zealand’s current constitutional arrangements reflect a fundamental belief in our elected representatives. We entrust them to act in our best interests and we provide them almost completely unfettered authority to do so. We have made important changes to our electoral system to ensure that our Parliament better reflects the people in our communities, and that our law-making requires collaboration and consensus between parties. We have, until recently at least, had a proud history of high voter turnout, reflecting the fact that a general election is one of very few ways to rein in a government and limit its authority.
But is it enough? Ought we to consider being more like everyone else? Should we entrench our constitution to limit the power of our elected representatives, limit the sovereignty of Parliament and give our courts greater authority?
These are questions many of us do care about, even if we don’t see them in constitutional terms. And we are divided in our opinions. Some say we should leave things as they are, that it is better to entrust elected, accountable representatives than an elite, unelected judiciary. Others think this naïve and point to examples (of which there are many) where our governments have infringed peoples’ rights in unacceptable ways. They say we need the courts to limit the power of government.
This debate about whether or not we should change our constitutional arrangements is one of many issues raised in the recent national Constitution Conversation. For much of this year, a panel of advisors has been encouraging us all to think about, talk about and write about the New Zealand we wish to see in the future. A range of topics was debated: What place should the Treaty of Waitangi have in our constitutional arrangements? How long should our Parliamentary term be? What should happen to the Māori seats in the future?
This “conversation” was reasonably successful, as far as these things go. The panel received over 5,000 submissions and held many public meetings around New Zealand. Conversations can, of course, lead to quarrels and this was no exception. Debate erupted, in particular, along the fault-line of the Treaty of Waitangi. But it did get us talking; some of us, at least. And it was exciting for a constitution fan like me to see people engaging on this most important issue.
The panel will report to government later this year on what it heard from people. The government is likely to act only on those recommendations that suit its own interests. Which brings us full circle to the question of power and limits to power: we may not be a nation which talks much about its constitution, but we should never be a nation which stops talking about the power of our government and the rights of our people.
ASSOCIATE PROFESSOR JANINE HAYWARD
DEPARTMENT OF POLITICS