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Why New Zealand needs constitutional reform

Talk for Wellington Rotary Club, 14 October 2013

Jonathan Boston

Professor of Public Policy

Director, Institute for Governance and Public Policy

Thank you for the invitation to speak today. It is a pleasure to be here. Given the weather and the nature of the topic – namely New Zealand’s constitution and why it needs reform – I am relieved to have an audience! The constitution is hardly a big draw card. It rarely sets our pulses racing or commands much of our attention. Unlike Team New Zealand, the All Blacks or the Silver Ferns, our constitution generates little passion or animated conversation; it does not have us glued to our TV screens, work stations or Ipads. For most people, the constitution only rarely rates much thought. It is certainly not the stuff of dreams, hopes, visions, novels, games, films, plays or poetry! Indeed, many people probably have little idea what a constitution is, let alone why it matters.

But of course it does matter: our constitution lies at the heart of our democratic system of government; it sets the rules of the game by which we organize our collective affairs; it provides the framework within which we endeavour to set our national priorities, resolve our differences and make our decisions on all important matters of public policy. If this framework is poorly designed or defective in some crucial respect, then this will have consequences – and generally bad consequences.

In my view, New Zealand’s constitution is not fundamentally flawed. Nor is there a constitutional crisis on the immediate horizon. We are not about to hit a deficit ceiling, default on our public debt or experience a government shutdown. We have a largely non-corrupt, effective and reasonably accountable governmental system. For all these things we can be thankful. Against this, our constitution is far from perfect; there are significant reasons for concern; and there is undoubtedly scope for improvement. In computing terms, it is time to push the ‘refresh’ button.

For such reasons, I commend the government’s decision to establish a Constitutional Advisory Panel and to seek the public’s views on a number of important constitutional issues. In brief, these issues include:

  • The size of parliament;
  • The length of the term of parliament and whether it should be fixed;
  • The size and number of electorates;
  • Whether we should have legislation to support electoral integrity; that is, to stop ‘waka jumping’;
  • Whether we should alter our system of Maïori representation, including the Maori electoral option, Maori electoral participation, and Maori seats in Parliament and local government;
  • What role the Treaty of Waitangi should play within our constitutional arrangements;
  • The content and status of our Bill of Rights; and
  • The question of whether we should have a written constitution.

The Advisory Panel, as most of you will be aware, has received thousands of submissions, which it is currently processing, and it will be reporting to the government later this year. I look forward to reading this report.

But what are the grounds for concern? And where is our constitutional in need of improvement? Various concerns spring immediately come to mind.

First, voter turnout in our general elections and local government elections has been falling for several decades. At the general election in 2011, only 2.2 million of 3.1 million eligible voters cast a ballot, or around 74%. I gather that this is the lowest turnout in a general election since 1887. The turnout in the recent local government elections was, in many cases, pitiful. A democracy cannot flourish if its citizens do not participate in critical parts of the political process.

Second, despite an electoral referendum on the future of MMP in 2011, a thorough review of important aspects of the electoral system by the Electoral Commission in 2012, and a series of well-considered recommended changes, the government announced earlier this year that the current system would remain intact; there would be no reforms. Nothing! To be frank, I was not surprised. The same status quo outcome occurred in 2001 when a parliamentary select committee reviewed the MMP system. But given the evident problems with the current system and the enormous effort that was expended by many people in seeking reform, the failure of our Parliament to respond more appropriately is disturbing. It made a mockery of the review process.

Note that issues that were under review by the Electoral Commission included:

  • The two thresholds of the allocation of list seats;
  • The effects of the ratio of electorate seats to list seats on proportionality;
  • The effect of a party’s candidates winning more seats than the party would be entitled;
  • The rules for ordering candidates on party lists;
  • The rules allowing candidate to contest an electorate and be on a party list; and
  • The rules allowing list MPs to contest by-elections

A third concern is the ease with which important constitutional principles and values can be completely overridden by Parliament. To give but two examples: In March 2010 the government introduced and passed legislation under urgency which, without public consultation, sacked the members of the Canterbury Regional Council or Environment Canterbury (ECAN) and appointed commissioners. The council elections, due later that year, were suspended. Subsequently, the 2013 elections for the Canterbury Regional Council were also suspended.[1] It will thus be 2016 before local democracy is restored.[2] Perhaps the Fiji Prime Minister would approve or such action, but as in Fiji the grounds used to justify the government’s decision to override the democratic process and suspend two elections were, at best, extremely thin. Meanwhile, the highly centralist tendency in New Zealand politics continues to strengthen, with proposals to place important public functions, such as water services and transport services, outside the ambit of democratic control – ostensibly in the interests of economic efficiency. In my view, this poses serious long-term risks.

Next, consider the New Zealand Public Health and Disability Amendment Act 2013[3] which allocates $23 million annually to people who care for disabled adult family members: This legislation was a response to a Court of Appeal decision which held that the government’s policy of not paying family carers to provide support services to disabled family members constituted unjustifiable discrimination. Not only was this Amendment Act passed under urgency, thereby denying the opportunity for public input through select committee hearings, but official advice on the legislation from the Ministry of Health was heavily censored, with whole sections of the 28-page document blacked out, thus denying even parliamentarians access to the relevant information even though they were responsible for enacting the legislation.[4] To compound matters, the legislation limits payments to carers to the minimum wage and dispenses with important constitutional safeguards. Under Section 70E(2), ‘no complaint based in whole or in part on a specified allegation [that the policy unlawfully discriminates] may be made to the Human Rights Commission and no proceedings [on this same basis] may be commenced or continued in any court or tribunal’.[5] This annuls the judiciary’s primary function of declaring the meaning of legislation and its application in particular cases. It further removes the judiciary’s role in protecting individual citizens from unjustified governmental actions.[6] While some may argue that the stakes are low in this particular case, the ease with which our elected officials can disregard important and long-standing constitutional safeguards is surely concerning. To quote the Chief Human Rights Commissioner, David Rutherford, ‘this [legislation] sends a chilling message to anyone seeing litigation as a road to solving issues relating to the protection of their economic and social rights’.[7]

Many other examples of abuses, or potential abuses, of the constitution and the democratic process could be cited, not only by the current government but also by most recent governments. These include, in no order of importance:

  • the recent failure of the Department of Conservation to provide a full and proper report on the possible impacts of the proposed Ruataniwha dam in the Hawkes Bay;
  • amendments to the Crown Minerals Act passed in May 2013 under urgency which limit the right to legitimate protest in the case of deep-sea mining in New Zealand’s exclusive economic zone. These amendments breach international human rights (enshrined in the International Covenant on Civil and Political Rights) in purporting to prohibit legitimate and peaceful forms of demonstration and protest, and restricting freedom of expression, peaceful assembly and free association;
  • the repeated failure of the Minister of Education to follow proper legal processes in her efforts to close certain schools;
  • the failure of some departments to provide free and frank advice to ministers;
  • constant changes to the purpose, functions and structures of local government, including a substantial reduction in the number of elected members; and
  • the sweeping powers granted to ministers and the Canterbury Earthquake Recovery Authority under the Canterbury Earthquake Recovery Act 2011.

Aside from this, there is arguably a deeper problem, namely that our constitutional arrangements provide inadequate protection for the interests of future generations. In this regard, of course, New Zealand is not unique: all democracies are ‘systematically biased in favour of the present’. Hence, elected governments often focus on short-term issues at the expense of long-term issues, and typically weigh the interests of current voters ahead of the needs of future generations, even when the long-term consequences are severe and irreversible – as, for example, with climate change. Equally, because ministers are ever mindful of short-term electoral considerations, those who serve them and provide policy advice are under constant pressure to devote their limited resources to the immediate issues at hand. For such reasons, as Iain Rennie, the State Services Commissioner, has pointed out, the state services is ‘very good at responding to the demands of ministers in the here and now’ and ‘very good at responding to crisis and mobilizing response’, but ‘much less good at thinking about the long term and the various dimensions of that’.[8] Somehow, we need to strengthen the protections for future generations and enhance the quality of our stewardship of the environment.

Turning then to possible constitutional reforms: I am not a revolutionary; I believe firmly in the virtues of measured, adaptive and evolutionary change. Such change should be principled and undertaken in an open, transparent and consultative manner, with maximum opportunities for public participation. This is crucial for legitimacy, durability and effectiveness.

With that in mind let me outline some of changes that I believe would improve the quality of our democracy. I will start with our Parliament and the electoral system.

  1. First, we should increase the number of MPs to around 150. As it stands, we have one of the smallest national parliaments in the developed world. This enhances the relative power of the executive, limits the pool of talent for cabinet, and reduces the effectiveness of parliament’s scrutiny functions.
  2. Second, we should provide for the appointment of a limited number of cabinet members from outside Parliament. This is normal in many other parliamentary systems, but has not been possible in NZ since the abolition of the Legislative Council in 1949.
  3. Third, we should extend the term of Parliament to four years, and move to a semi-fixed term as, for example, in Sweden. Under this option, an early election can be called, but the four-yearly cycle must continue. This gives a strong political deterrent to the calling of an early election.
  4. Fourth, we should reduce the party vote threshold under MMP from 5% to 3% or 4%, and eliminate the provision under which a party that wins at least one electorate seat is eligible for additional seats via its party vote (even if this is under 5%).
  5. Fifth, we should lower the voting age to 16 (as in Austria, Argentina, Brazil and a growing number of other countries) and significantly enhance the education we provide to senior school children in civics. The aim must be to connect young people to the democratic process at an early age.

Next, we need to rethink the relationship between central and sub-national government and build an enduring, cross-party consensus on the role and powers of local government. Given that New Zealand is already one of the most centralized democracies in the developed world, I would like to see a modest shift in the responsibilities of central government towards sub-national government – for instance, with respect to social housing and social services. But I realize that such views are not fashionable.

Finally, over the very long term I would like New Zealand to become a republic and embrace a written, entrenched constitution, with a stronger Bill of Rights to protect vital rights and freedoms. This, of course, would represent a fundamental constitutional change and will take decades, if not generations, to achieve.

In the meantime, however, there is a good case for considering ways to enhance the status and role of the Bill of Rights Act. One option would be follow the Canadian model. In Canada, the Charter of Rights and Freedoms, which was enacted in 1982, gives the Canadian courts the ability to refuse to apply legislation that is inconsistent with the rights and freedoms contained in the Canadian Charter. At the same time, however, parliamentary sovereignty is preserved through section 33 of the Charter, which allows the federal parliament or a provincial legislature to pass legislation that operates ‘notwithstanding’ a provision included in the Charter.[9] For example, if a legislature wishes to pass a law that will unconstitutionally violate the charter’s right to freedom of expression,[10] it can make a declaration under the clause stating that the law will continue to stand, regardless of the violation.[11] By allowing a legislature to protect its supremacy in this way, parliamentary sovereignty is preserved, but with greater checks and balances than are currently in place in New Zealand.[12] Adopting the Canadian model here would represent an evolutionary step and potentially provide the basis for a further and more fundamental change at some stage in the future.

Some critics argue that the Canadian model is no different in practice to the unqualified supreme law model. This is because the ‘notwithstanding’ clause in the Charter has never been invoked by the Federal government.[13] But given the attitude the New Zealand Parliament with respect to human rights, the ‘de facto supreme law’ situation that has arisen in Canada over the past three decades is unlikely to occur here. The New Zealand parliament has demonstrated, especially in recent years, its willingness to override the Bill of Rights even where the Attorney-General has declared a Bill inconsistent with the Bill of Rights.

Finally, there is also a case for extending the rights encapsulated in the Bill of Rights Act. At present, the Bill of Rights does not contain any social, environmental or economic rights, and only partially recognizes an individual’s right to privacy through the right to be free from unreasonable search and seizure and the rights protecting a person’s physical autonomy.[14]

In my view, there is a particularly powerful case for strengthening environmental rights and hence the interests of future generations. Currently, more than 100 national constitutions include the human right to a healthy environment. Such provisions are variously worded – for example, Section 110B of the Norwegian constitution states that:

(1) Every person has a right to an environment that is conducive to health and to natural surroundings whose productivity and diversity are preserved. Natural resources should be made use of on the basis of comprehensive long-term considerations whereby this right will be safeguarded for future generations as well.

Similarly, Article 33 of the Bolivian constitution states that human beings ‘have a right to a health, protected, and balanced environment.’

There are, of course, other ways of seeking to enhance the institutional protections for future generations, including for example building on the requirement for Long-Term Fiscal Statements by requiring similar statements on environmental and social matters. But such ideas must await another occasion.

I am very mindful that I have not discussed the role of the Treaty of Waitangi or the future of the separate Maori seats in Parliament. In brief, I think the separate Maori seats should be preserved, certainly for the time being, and that the Treaty should be incorporated into any written constitution, should we ever have one.

In summary, we have a relatively long, strong and positive democratic inheritance. In constitutional terms, we have much to be thankful for. But there is no room for complacency, and some valid reasons for concern. We need to refresh and revitalize our constitutional arrangements and ensure that they continue to be fit for their purpose. In particular, we need to strengthen the protections of our rights and freedoms and ensure that the interests of future generations receive proper attention.

I look forward to your responses.

[1]New Zealand Parliament. "Environment Canterbury (Temporary Commissioners and Improved Water Management) Amendment Bill." 2013. http://www.parliament.nz/en-nz/pb/legislation/bills/00DBHOH_BILL11619_1/environment-canterbury-temporary-commissioners-and-improved (accessed 24 Sep 2013).

[2]Parliament Today. "ECan Election Suspension Law Passes." February 28, 2013.

[3] New Zealand Parliament. "New Zealand Public Health and Disability Amendment Act 2013 No 22." 2013. http://www.legislation.govt.nz/act/public/2013/0022/latest/whole.html (accessed 24 Sep 2013).

[4] New Zealand Parliament. "New Zealand Public Health and Disability Amendment Bill (No 2) — Second Reading." Hansard 690, (2013): 10204.

[5] New Zealand Parliament. "New Zealand Public Health and Disability Amendment Act 2013 No 22." 2013. http://www.legislation.govt.nz/act/public/2013/0022/latest/whole.html (accessed 24 Sep 2013).

[6]Geddis, Andrew. "I think National just broke our constitution." Pundit 17 May 2013, 2013. http://pundit.co.nz/content/i-think-national-just-broke-our-constitution (accessed 24 Sep 2013).

[7]"Editorial: Disability bill demonstrates contempt for due process." New Zealand Herad, 21 May, 2013, http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10884930 (accessed 24 Sep 2013).

[8]Iain Rennie, Speech of Head of State Services and State Services Commissioner at the IPANZ State sector legislation launch, 30 July 2013.

[9] Hogg, Peter and Allison A Bushell. “The charter dialogue between Courts and Legislatures (or perhaps the charter of rights isn’t sucha  bad thing after all)” Osgoode Hall Law School, 1997: 83.

[10] As happened in Quebec in 1988 with the ‘French Sign Laws.’

[11] Hogg, Peter and Allison A Bushell. “The charter dialogue between Courts and Legislatures (or perhaps the charter of rights isn’t sucha  bad thing after all)” Osgoode Hall Law School, 1997: 83.

[12]Butler, Andrew and Petra Butler. "Protecting Rights". Originally published in Reconstituting the Constitution, by Morris, Caroline, Jonathan Boston and Petra Butler. 157 - 184. Berlin: Springer, 2011: 164.

[13] Note: it has been invoked numerous times by provincial governments

[14]Butler, Andrew and Petra Butler. "Protecting Rights". Originally published in Reconstituting the Constitution, by Morris, Caroline, Jonathan Boston and Petra Butler. 157 - 184. Berlin: Springer, 2011: 158.

 
 
 
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