Responding to Geoffrey and Andrew's argument for a written constitution


Geoffrey Palmer and Andrew Butler have defended their views on why New Zealand should adopt a written constitution in a recent newspaper column. It was published on Tuesday, but I only came across it a day or so later.

I won't lie - reading the column got me a bit worked up. I do have a particular view on the merits of our current "unwritten" constitution. I think it's pretty good. But even if you disagree with me on that point, a fair account of New Zealand's current constitutional arrangements is necessary to make the case for change. I don't think that case has been made as yet by Geoffrey and Andrew, because they don't assess the merits of what we have along with the merits of what they want to give us.

I think that's a shame. How we structure our constitution is an important debate and I want to see both sides of the written/unwritten argument taken seriously.

This post isn't the place to provide balance to Geoffrey and Andrew's views. They will take some time and more than just my voice. So what I have set out below is an annotated account of the column as it was published. Geoffrey and Andrew's position is set out in italics; my thoughts are added in purple text. The intention is to highlight where there might be more room for genuine good-faith debate than an initial read might suggest.

In the Herald recently, Noel Cox raised two main objections to our proposed constitution. First, Cox dislikes a written, entrenched constitution despite the rarity of any arrangements like New Zealand's anywhere else on this planet.

Our constitutional arrangements just aren't that rare. Every constitution that we might want to emulate relies the observance of unwritten rules to make their constitution function. In fact, the trendy topic among constitutional scholars in the United States is to identify the unwritten rules that make the constitution work. If only some of them looked over to little old New Zealand...

Second, he worries about the Treaty of Waitangi.

Fair enough, I say. I often lie awake at night worrying about it, too.

His first point assumes that a written, codified constitution cannot be flexible. We disagree. New Zealand does not need a constitution etched in stone. It needs one with the capacity of being changed either by a referendum of the people or by a special majority of 75 per cent of the members of Parliament.

I agree that New Zealand does not need a constitution etched in stone, either literally or figuratively. But does it really need one "with he capacity of being changed either by a referendum of the people or by a special majority of 75 per cent of the members of Parliament"? That seems to be the type of point on which reasonable people might reasonably disagree. It would be great to see an argument in support of this position.

This is precisely the current position in fundamental elements of the electoral system, guaranteed by section 268 of the Electoral Act 1993; it has been in place in previous legislation since 1956.

I'll concede here that most New Zealand scholars believe that section 268 has this effect. I don't, and I'm in the minority (although recent case law on this point gives my side of the argument a bit more ammunition, I think). In any case, this is not an argument in support of Butler and Palmer's assertion above - they still need to tell us why using this entrenchment mechanism, and significantly expanding it's use, is a good thing to give their argument some coherency.

We recognise the need to keep the constitution up to date; that's why we propose it be formally reviewed every 10 years.

Great idea, but I note that we haven't had much success with formal constitutional reviews in our recent past. Lots of talk, not much action.

Unless our constitutional machinery is kept in good order, it will deteriorate and that is what is happening to it now.

I agree. But this is the case whether we have a written constitution or retain an unwritten one.

The prime danger with New Zealand's constitution is that it can be changed at any time with a majority of one in the House of Representatives. That means that anything goes. There are no constitutional restraints except elections.

This is basically just untrue. We have a load of constitutional safeguards - independent courts, a commitment to the rule of law, recognised acceptance of fundamental rights, common law rules of statutory interpretation, responsible criticism of government, academic commentary about the limits of Parliamentary sovereignty, free and fair elections ... These things shape the way Parliament works, and in many cases actually constrain Parliament's behaviour. All without a written constitution.

And in any case, do Geoffrey and Andrew think it's easy to get a majority of the House to support proposed legislation?

And elections are very blunt instruments. Voting seldom takes place on the basis of individual government policies or breaches of human rights.

They are, but then they are designed to be. We have other safeguards, as mentioned above, which is why we can afford some bluntness here.

We have had an un-entrenched Bill of Rights for 25 years. Over that time Parliament has passed laws that breach it on at least 37 occasions, in spite of the Attorney-General advising MPs in writing that they were doing so. Parliament needs greater encouragement to honour human rights better than it does.

Great points. We should all be fighting this fight. Absolutely we should demand that Parliament does a better job on human rights issues. Every country in the world should demand the same thing of their legislature. And all legislatures fail to uphold the expectations of their citizens with regards to human rights 100% of the time, including those with written constitutions.

To say it is debatable whether New Zealand has lost anything by not having entrenched constitution seems to us just plain wrong.

With all due respect, this is not "just plain wrong". It is the whole point. We may or may not lose or gain certain things depending on the constitutional structure we adopt. We need to be open and honest about benefits and detriments, not pretending that they don't exist or that they don't matter.

The first thing we have lost is clarity about what the constitution is and where to find it.

Of what does the New Zealand constitution consist? The most recent scholarly answer, not from us, is that the New Zealand constitution is located in 45 Acts of Parliament, including six passed in England, 12 international treaties, nine areas of common law, eight constitutional conventions, three-and-a-half executive instruments, one prerogative instrument, one legislative instrument and half a judicial instrument.

How many New Zealanders can find that material let alone understand it?

This paragraph is more than a little disingenuous. While neither Andrew nor Geoffrey undertook this research (it was by Geoffrey's son, Matthew), relying on it is quite self-serving. The whole point of Matthew's research was to promote a distinctive academic philosophy ("constitutional realism"). What makes that philosophy distinctive is its extremely broad interpretation of what is constitutional, and therefore is part of the constitution. That research has been published in a peer-reviewed journal, but has not been subjected to extensive academic critique of the kind I would want before I relied on it to support an argument for constitutional change.

Relying on this research is also a bit ironic. One of the logical consequences of adopting a wide view of what is constitutional is to highlight that all constitutions are essentially unwritten. They all rely on practices, arrangements and understandings over and above constitutional text. The written constitutional document is actually just a distraction from what's really going on. So if we are going to rely on academic research, let's rely on all of it and not just the bits we like the look of.

In any case, let's answer the question. How many New Zealanders can find that material let alone understand it? I would wager a similar number to those that would read a written constitution in a sophisticated way, keep abreast of the evolving practice it creates, and engage with constitutional issue in the spirit of reasonable disagreement.

And let's ask one of our own. How many of the sources would be removed under Andrew and Geoffrey's proposals? I'd say about half, before new source sprung up to replace the old. Does that really make things appreciably more simple? Will more people find and read the Cabinet Manual, or the Standing Orders, because we have a written constitution?

When the issue of a written constitution was last considered in New Zealand in the 1960s, it was rejected partly because it was said New Zealanders were British and did not need to write it down.

We are no longer in that condition and there is real value in writing down what our fundamental rules of government are.

Every legal organisation in New Zealand whether it be a company, trust or incorporated society has a constitution, but not New Zealand itself. Odd that.

Not really, at least not to anyone familiar with our constitutional system. We have centuries of British and indigenous practice to draw on to guide us as to what's going on and what we need to do. And I work as a corporate lawyer. I can tell you that some company constitutions do more harm than good.

Cox admits that "The Treaty is now politically all but entrenched ... " That is the case and to a much greater degree than many people understand. So why deny the reality? Are we scared of it? There are few mysteries or difficulties left that we are likely to encounter by making it part of a formal constitution.

I'm personally ambivalent on this point, but it seems to me that parsimony is hardly a good reason to instigate this kind of constitutional change. The symbolism of incorporating the Treaty in a constitution alone counts against that approach. The right thing to do here, I think, is to check in with the tangata whenua on this point. He aha o ratou whakaaro?

Far from being unmanageable, as Cox opines, drafting a written constitution once the Crown is removed makes things much more orderly, understandable, less mysterious and more rational.

It might, but I can't think of any tangible evidence to support this claim. There will always be mysterious parts to our constitutional practice that don't fit neatly into a written scheme. And written constitutions can be misunderstood. The lack of sophistication in the debate concerning the right to bear arms in US constitution shows us that written words are not necessarily understandable or interpreted rationally.

We need to know who has what powers and how they must be exercised.

Agreed. That's what a constitution tells us, whether its written or unwritten. Does one of these structures do a better or worse job? Perhaps - but let's see the evidence.

Cox says we must be prepared to tackle large issues. We are so prepared.

For some reason I can't help thinking about Mike Catt preparing to tackle Jonah Lomu...

We believe that New Zealanders would welcome the opportunity to sort out where they stand and what they stand for. Based on the huge volume of submissions it received and the many public hearings it held, the Government's own Constitutional Review Panel in 2013 noted "a consensus that our constitution should be more easily accessible and understood", and also noted that "one way of accomplishing this might be to assemble our constitutional protections into a single statute".

A better way to do this, if I may be so bold, is to provide better civics education to all New Zealanders. We are actually missing a real trick here. The goal is not, or at least shouldn't be, that we have an accessible constitution. The goal is to have engaged citizens that can "read power" and "write power" - that are fluent in civics to such an extent that they can meaningfully participate in government. And we need this regardless of the constitutional structure we adopt.

A muddled and confused approach is unlikely to be sufficient for the challenges New Zealand will encounter in the future.

Agreed, although this would usually be an argument against significant constitutional change where there isn't an obvious need for it.

What is needed is a constitution that sets out the rules, principles and processes about government in one document so they are accessible, available and clear.

Good thing we already have one, then!

We need to eliminate the need for significant unwritten constitutional conventions and customs which are unclear in important respects.

This is a big call. It is both factually and normatively debatable. Can we really eliminate conventions when all written constitutions around the world rely on them? Should we even try? One of the key advantages of an unwritten constitution is that we recognise and respect these conventions more easily and openly. That is a big plus for the status quo as far as I'm concerned.

This is the sort of point that you should start an argument with, and then spend time explaining and justifying your position. Ending your argument on this point sure is dramatic, though.

We need greater force in the protections given by our Bill of Rights.

I don't know what "force" means in this context, and that makes me a little concerned. But yay for rights and stuff.

Our proposed constitution aims to provide an accurate map about how we govern ourselves.

I won't labour the point here, but maps are supposed to be useful rather than accurate. No map is completely accurate, because producing a map that is at a scale of 1:1 is cost-prohibitive and inconvenient.

That might seem like a throw-away comment, but I am trying to make a key point. No written constitution will "accurately" capture and reflect our constitutional practice. It only works as a guide, in much the same way as an unwritten constitution does. If there is a benefit to a written constitution, it needs to be based on something other than accuracy.

We have already had helpful feedback on what we propose; we seek your views at www.constitutionaotearoa.org.nz.

If you can, I encourage you to give your views as well.


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