Cross-Examination: A Constitution for Aotearoa New Zealand?

By Jade Du Preez

 A New Blueprint?The recent release of the book “A Constitution for Aotearoa New Zealand” is intended to stimulate discussion on what shape a written constitution for New Zealand would take. The joint authors are former Prime Minister Geoffrey Palmer and litigator and the New Zealand Bill of Rights expert Andrew Butler. The book, launched at Parliament on the 21^st of September, exists alongside an online presence, to facilitate discussion of the content of their work and to take public submissions. It is intended to provide something tangible to assist with a nation-wide town campaign prior to an updated version being released a year later.The work has been described as a blueprint constituting both descriptive and normative content. It is an attempt to consolidate the various aspects of legislation and convention that presently make up New Zealand’s constitutional arrangements (which constitutes an “unwritten constitution”), as well as “tweaks and bolt-ons” to put restraints on governmental power.[1] It is these suggested alterations that have prompted the most debate. A sample of such content includes: norms guiding what parliament can do; the ability of the judiciary to strike down inconsistent legislation; the incorporation of the New Zealand Bill of Rights 1990 and the Treaty of Waitangi; and a new “Republic of New Zealand”. This model, Palmer suggests, is unlike the American system of a supreme constitution, as Parliament would still have the final ability to trump judicial decision-making with a 75 percent majority of the House.[2]Palmer outlined key aspects in his address to the Open Source/Open Society Conference in August of 2016:The whole project aims to clarify the use of public power in New Zealand by:

• 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[3]

A full version of the 55 page proposed constitution is publically available on the website.Criticism from the business worldThe increased power of the judiciary and the potential strengthening of economic and social rights have sparked a negative reaction from the business community. The potential impact on property rights and the degree of uncertainty has been considered too high a cost for fixing something “that is already working.”Legal adviser and Business New Zealand columnist Barbara Burton cited an example from the latest proposal: that everyone had the right not to be deprived of their property 'except in pursuance of an Act of Parliament … or in pursuit of a public purpose or public interest'. She suggested that this broad exemption leaves considerable scope for argument over what constitutes the public’s best interest: "Businesses would find it hard to live with the uncertainty this would produce.”"Secure property rights have long been recognised as essential to a country's economic well-being. Willingness to invest, grow a business and provide employment opportunities would be undermined if, by way of an entrenched constitution, property rights could be diminished by legislative intervention and judicial interpretation."[4]The role of Te TiritiIn his review of the working document Dean Knight suggests it is “[n]ot the constitution I think Maori would come up with,” though he does consider its value as a consultative document.[5] The relevant content is contained in ss 72 - 74:Part 11 Te Tiriti o Waitangi / The Treaty of Waitangi72 Te Tiriti o Waitangi / The Treaty of Waitangi

• The rights, duties and obligations of Māori under te Tiriti o Waitangi / the Treaty of Waitangi are hereby recognised and affirmed.

• On the commencement of this Constitution, all rights, duties and obligations under te Tiriti o Waitangi / the Treaty of Waitangi and under Treaty settlement agreements previously vested in the Crown in right of New Zealand, vest in and are assumed by, the State.

• Te Tiriti o Waitangi / the Treaty of Waitangi is considered as always speaking and is to be applied to circumstances as they arise so that effect may be given to its spirit, intent and principles.

• Te Tiriti o Waitangi / the Treaty of Waitangi means the Treaty as set out in Māori and English in the Appendix.

73 The Waitangi TribunalThere continues to be a body known as the Waitangi Tribunal, which is provided for by an Act of Parliament.74 Application of the TreatyWhere issues arise which relate to te Tiriti o Waitangi / the Treaty of Waitangi or which involve tikanga Māori, the courts and tribunals have the power to request an opinion from the Waitangi Tribunal or other established experts on those issues.[6]These inclusions are less than radical and will undoubtedly be insufficient for some. Radio New Zealand interviewer Colin Peacock asked, if we don’t regard sovereignty as being ceded, then wouldn’t a full ground-up approach be more appropriate?The report of The Independent Working Group on Constitutional Transformation, He Whakaaro Here Whakaumu Mō Aotearoa provides an alternative perspective. The terms of reference for its enquiry were not centred on how to better to fit into a Westminster system, but to draw on sources of “tikanga and kawa, He Whakaputanga o te Rangatiratanga o Niu Tireni of 1835, Te Tiriti o Waitangi of 1840, and other indigenous human rights instruments.” The project, chaired by Professor Margaret Mutu, with Moana Jackson as Convenor, sought “constitutional transformation”, as opposed to “constitutional change.”[7]Inclusion of these recommendations would paint a significantly different picture of structures and processes that may better reflect a unique national identity.Is now the time?Is there any motivation to reform? James Madison, the original constitutionalist, wrote “I believe there are more instances of the abridgment of the freedom of the people by gradual and silent encroachments of those in power than by violent and sudden usurpations.”[8] Perhaps it is better to proceed with alterations before we hit a constitutional crisis.There may be underlying challenges to engaging in such discussion that need to be addressed first. In an interview with The Listener Palmer spoke about present influences on political perspectives.“Levels of voting are going down. There is something of a crisis about Western democracies. You have Brexit, you have Trumpery. These things are extremely destructive of the democratic ethos. And democracy is about more than voting. It’s about due process, it’s about doing things in a proper principled way and knowing what those principles are.”[9]Still, it remains to be seen whether this project will succeed where others have not. The constitutional review of 2013 has been used as an indicator of attitudes to reform. With the release of the official report of the Constitutional Advisory Panel Deputy Prime Minister Bill English stated “[t]here is no sense of an urgent or widespread desire for change.”[10]The question of public disengagement as demonstrated by the flag referendum has also arisen in interviews. Are New Zealanders even remotely interested in such matters? Palmer suggests we are. In his view the flag debate revealed a deeper yearning for a national identity to become clearer before assigning it a symbol.[11] Time will tell. For those who do wish to participate and submit on the working document for a written constitution for New Zealand, the key website and social media sites provide an access to contribute (link provided below)More Info:Visit the website of A Constitution for Aotearoa New Zealand

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[1] Dean Knight “Book review - "A Constitution for Aotearoa New Zealand" (Nine To Noon, Radio New Zealand, 6 October 2016).[2] Interview with Geoffrey Palmer and Dr Andrew Butler (Colin Peacock, Sunday Morning, Radio New Zealand, 25 September 2016).[3] Geoffrey Palmer "The Constitution – Opening the Conversation" (Open Source /Open Society Conference 2016, Michael Fowler Centre, Wellington, 22 August 2016).[4] Eric Frykberg “Businesses criticise calls for NZ constitution” Radio New Zealand (New Zealand, online ed, 9 October 2016).[5] Above, at n 1.[6] Geoffrey Palmer and Andrew Butler A Constitution for Aotearoa New Zealand (Victoria University Press, Wellington, 2016) at 62.[7] The Independent Working Group on Constitutional Transformation He Whakaaro Here Whakaumu Mo Aotearoa: The Report of Matike Mai Aotearoa (January 2016).[8] Steve Straub The Federalist Papers http://thefederalistpapers.org/founders/madison/james-madison-more-instances-of-abridgment-of-freedom-by-encroachments-of-those-in-power-than-of-the-people.[9] Rebecca Macfie “Does New Zealand need a new constitution?” New Zealand Listener (online ed, New Zealand, 7 October 2016).[10] Mike Butler “Palmer's Aotearoa constitution” 18 September 2016 <breakingviewsnz.blogspot.co.nz>.[11] Interview with Geoffrey Palmer and Dr Andrew Butler (Colin Peacock, Sunday Morning, Radio New Zealand, 25 September 2016).