The Constitution – Opening the Conversation
Rt Hon Sir Geoffrey Palmer QC
Keynote address to the Open Source /Open Society Conference
Michael Fowler Centre
Wellington
5 pm Monday 22 August 2016
Kia ora koutou. Thank you for inviting me to address you today. I’m finding your conference
quite fascinating.
The new digital technology has changed all our lives, even those of constitutional lawyers.
It facilitates so much more consultation, so much more interconnectedness, so much more
open and transparent government.
I am a big fan of open and transparent government. I am about to publish a new book which
holds that at the heart of it. In this new project, “A Constitution for Aotearoa New Zealand”,
Dr Andrew Butler and I propose a new Constitution building on the strength of the old, to
strengthen open government and people’s rights and to protect against abuses.
The book published by the Victoria University Press will be launched at Parliament by Grant
Robertson MP on 21 September.
We will be taking advantage of the new technology to consult the public on what we have
proposed. We have set up a website for the purpose at www.constitutionaotearoa.org.nz
So we will take submissions from the public through that and then we will revise our
proposals before we attempt to promote it for political consideration.
We want to hear what the people have to say. Everyone has an interest and a stake in how
we are governed.
But New Zealanders think little about their constitutional arrangements and hardly ever
discuss them.
There is good reason for this. They cannot find their Constitution.
It is not in one place.
It is obscure in many respects.
The current New Zealand Constitution consists of a hodge-podge of rules, some legally
binding, others not.
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It is formed by a jumble of statutes, some New Zealand ones and some very old English
ones; a plethora of obscure conventions, letters patent and manuals, and a raft of decisions
of the courts.
There has been much academic and professional commentary on constitutional practice, all
of it hard to find.
Other than parts of the Cabinet Manual, which has no legal status, no attempt has been
made to bring the sum of the parts together.
An interested person cannot find a clear and coherent statement of the whole framework
within which political decisions are made.
Surely this is not good enough in a modern, mature democracy?
The rules are opaque.
We need instead clarity and openness.
In a well educated society everyone needs to know what the rules are – members of the
public, the public servants, the ministers, the judges.
The Constitution must not remain a mystery, known only to a few.
All need to be marching to the beat of the same constitutional drum.
Public power must be carefully distributed.
It must be plain who can make what decisions and the steps they must follow in making
them.
The proposed Constitution sets out the powers of the Head of State, the Parliament, the
Government and the Judiciary.
It deals with the Treaty of Waitangi, the Bill of Rights, international relations, defence, lawmaking and the nature of the State.
While much of this will be familiar to many New Zealanders there are improvements
proposed in the Constitution.
The whole project aims to clarify the use of public power in New Zealand by:
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strengthening the accountability of Government
reforming Parliament to some degree
promoting transparency of decision-making by strengthening the Official
Information Act
promoting debate on how New Zealand is governed
strengthening democracy
protecting fundamental human rights
securing the status of the Treaty of Waitangi
providing clarity on how government works
guarding against the abuse of power and strengthening the rule of law.
We have written a 250-page book setting out a 40-page written constitution and the
reasons for it in plain language so everyone can understand it.
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Once our proposed Constitution goes up on the website on Saturday September 17 we will
seek public comment and submissions so we can refine our proposals further before
presenting them to government in final form.
We are particularly concerned to reach young people who are often confused about how
New Zealand is run.
What do they think?
Do they want to participate in the democratic process?
Are they turned off by it?
What could change that?
We thought the recent debate on the flag showed that New Zealanders yearned for a
greater sense of their own constitutional identity.
A Constitution should say something about what and who we are about as a nation.
Concern about the inaccessibility of the most basic rules of how we govern ourselves is
neither new nor idiosyncratic.
One of New Zealand's leading historians, Professor J C Beaglehole, warned as far back as
1944 that New Zealand’s Constitution was "some silk-wrapped mystery, laid in an Ark of the
Covenant round which alone the sleepless priests of the Crown Law Office tread with
superstitious awe”.1
Fast-forward 70 years and that concern remains valid.
Two recent official inquiries — one by a parliamentary Select Committee chaired by the
Honourable Peter Dunne in 2005 and the other by a Government-appointed panel on
constitutional issues in 20132 — agreed that New Zealanders do not understand their own
Constitution.3
No changes resulted from the two recent constitutional inquiries.
We think that is explained in part because there was no clear model out there for
consideration.
We aim to fill that gap.
It is desirable to keep constitutional arrangements in good repair and not neglect them.
By providing a drafted model for consideration people can specifically indicate what they
like and what they do not like.
The Constitution is the foundation of law and politics in any country.
1
J C Beaglehole New Zealand and the Statute of Westminster (Wellington, Victoria University College, 1944)
at 50.
2
Constitutional Arrangements Committee Inquiry to review New Zealand’s existing constitutional
arrangements (10 August 2005); Constitutional Advisory Panel New Zealand's Constitution: A Report on a
Conversation (November 2013). Two private attempts have also been made to discuss and conceptualise some
of the issues facing our constitutional system, see Colin James (ed) Building the Constitution (Victoria
University of Wellington Institute of Policy Studies, Wellington, 2000); and Caroline Morris, Jonathan Boston
and Petra Butler (eds) Reconstituting the Constitution (Springer, London, 2011). See also Mai Chen Public Law
Toolbox: solving problems with government (LexisNexis NZ, Wellington, 2014) Chapter 28 for a discussion of
the prospects for change.
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Constitutional Advisory Panel, above, at [9].
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It should be easy to find, so that people know the basic rules by which they are governed
and public power is regulated.
New Zealand is one of the few countries in the world where a citizen cannot go to a single
source of those rules.
In the modern age it is frankly shocking that that is so. There are only two other countries in
the world that have constitutions as fragmented, unorganised and uncodified as we have.
They are the United Kingdom and Israel.
In the UK this could change. A great deal of work has been done by a House of Commons
Select Committee on what a codified written constitution there could look like.
We are indebted to this work and the particular help we have received from Professor
Robert Blackburn, a Professor of Constitutional law at King’s College London, who kindly
arranged for us a seminar there of leading British constitutional lawyers in February this
year.4
Putting all the rules in one place is the minimum that needs to happen.
Accessibility is not the only problem with our current arrangements.
New Zealand’s present constitution is incomplete, obscure, fragmentary and far too flexible.
Our Constitution is subject to few limits.
It evolves in obscure and unpredictable ways that are not transparent.
That is the trouble with such a political constitution.
Our constitution is not fully fit for purpose in the political and social realities of modern New
Zealand and it needs to change.
New Zealand needs a constitution fit for the modern age.
Some nations are more successful than others. New Zealand is a successful nation but
there’s no guarantee that it will stay successful. It’s something that needs constant
attention and work. Part of that is keeping its institutions and constitutional arrangements
in good order and condition, able to cope with the problems of the future.
4
Robert Blackburn “Enacting a Written Constitution for the United Kingdom” (2015) 36 Stat. L.R. 1 at 3
Professor Blackburn was the lead adviser to the House of Commons, Political and Constitutional Committee,
A New Magna Carta? Second Report of Session 2014-15, HC 463,10 July 2014. This is work that has been
invaluable to us in a New Zealand context.
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It has been said that to be successful a nation needs three elements:
• a competent state—which means the administration is efficient and the authority of the
state is respected and free of corruption; • strong rule of law—which means all are subject to and equal before the law, including the
law makers and enforcers themselves; • democratic accountability—that is, accountability of those in power to the people they
govern. Without these fundamental elements underpinning it, a state could not function as it would
be administratively inefficient, corrupt and subject to arbitrary and wrongful abuses of
government power against the citizens of the state.
The codified Constitution we put forward seeks to prevent such developments from
occurring here in New Zealand in the future by ensuring that everyone has free and easy
access to the set of rules that set out government power, so that the people can hold
Government to account for any breaches of this and uphold the rule of law.
It facilitates accountability and competence by strengthening the system of checks and
balances or safeguards within the State which keep tabs on different branches of
government and protects the interests and rights of the people. A constitution must stand above the interests of any particular political party or political
philosophy. It must belong to all of the people because it is under their will that government
is conducted in a democracy.
They are the ultimate authority. To strengthen some of the safeguards in New Zealand we propose some changes.
For example, the principles governing the existing institutions of the Ombudsman, the
Auditor-General, Parliamentary Commissioner for the Environment and the police need to
be included in the Constitution.
We also recommend:
• 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; 5
• establishing a new Constitutional Commission to review the Constitution every 10 years
and report upon possible amendments.
These are just a few examples of some of our proposals. The rest of our proposals will be
revealed shortly before the book is published on September 21 so keep an eye on our
website.
I would urge you all to take an interest in these matters and in creating a public
conversation around what public power should look like in New Zealand and what sort of
safeguards against it New Zealanders might want.
Thank you.
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