Submission on the proposal for Aotearoa New Zealand to adopt a written constitution
November 21, 2017
Aotearoa‑New Zealand does not need a written constitution. Our nation already has an established framework that effectively constrains public power, promotes constitutional stability and provides for credible political commitment to a core set of fundamental principles and values.
However, if the people of Aotearoa‑New Zealand should choose to adopt a written constitution, fundamental aspects of our constitutional settlement will change. Whether that change is for better or worse is a matter of debate, but any serious reform proposal involving a written constitution needs to take these changes into account. Ideally, the aspects of our current unwritten constitutional arrangements that are valuable should be retained to the extent possible.
With those general comments in mind, the focus of this submission is the specific issue of the place of the Treaty of Waitangi in a written constitution. This is an issue of much controversy because the Treaty itself is the subject of much controversy, and I understand that the project team has found this to be the single most intractable issue in its public engagement. This submission notes that while written constitutions may be very good at dealing with settled issues, they are generally less successful at addressing issues that remain politically and legally controversial. To resolve this difficulty the submission recommends drawing on insights from the current practice of Aotearoa‑New Zealand’s unwritten constitution.
The Treaty of Waitangi
The Treaty of Waitangi is an essential element of New Zealand’s constitution. In the absence of an authoritative constitutional document of the kind found in written constitutional jurisdictions, the Treaty serves the valuable functions of connecting our contemporary legal and political practice with its historical origins, and symbolising our commitment to ongoing development as a nation in line with constitutional fundamentals.
But it does not merely ‘fill a gap’. The Treaty ought to be approached from the perspective that it wears its own korowai of constitutional relevance unique to New Zealand. It formally recognises the iwi Māori of Aotearoa as tāngata whenua, and serves as a tohu of manaakitanga and aroha for all other people who call this nation home.
However, the Treaty is deeply controversial. Its precise legal meaning is unsettled and its political influence is inconsistent in scope and effect. This constitutional uncertainty reflects a profound ambivalence among the population as a whole as to the relevance of the Treaty in modern New Zealand.
This ambivalence creates an acute difficulty around the relevance and effect of the Treaty in any proposed written constitution that purports to be authoritative. Given the intention that a written constitution will represent fundamental law, the way that the Treaty is incorporated into that written constitution will directly impact on its legal effect and political influence going forward. This means that the text of any written constitution is forced to resolve the profound uncertainty of the legal and political effect of the Treaty one way or another. These intractably controversial issues that would otherwise be left in abeyance will crystallise, potentially favouring certain entrenched interest groups over others.
Accordingly, the impact of the specific treatment of the Treaty by any written constitutional document cannot be under‑estimated. Given the fundamental importance of the Treaty, this specific treatment will ultimately impact on the legitimacy of the written constitutional framework as a whole.
This submission cannot propose a definitive solution to these issues, but it can serve to make three relevant points:
The unwritten constitutional structure is very effective at dealing with the types of intractable issues that the Treaty represents for New Zealand constitutional practice.
Any successful written constitution is likely to draw on devices prevalent in an unwritten constitution.
The “flexibility” of the arrangements that feature in the current proposal for a written constitution does not adequately address these issues in its current form.
The value of unwritten constitutions
The single most effective device for dealing with controversial issues of constitutional significance is the unwritten constitutional form. This section briefly outlines why this is the case.
All written constitutions to some extent base their legitimacy on a clear narrative around (historical) agreement and (future) certainty. The exercise of constituent power that ‘creates’ the written constitution inherently draws on the idea of ‘constitutional settlement’. That an agreed position on constitutional issues has been reached in turn implies that the prevailing constitutional settlement should not lightly be disturbed. Public power is therefore constrained by inflexible, enforceable limits; stability is promoted through formal entrenchment mechanisms; and sources of constitutional authority arising from outside of the written constitution itself are viewed as inferior or with considerable scepticism.
This singular, rigid form of constitutionalism that written constitutions tend to promote does not easily admit elements that are legally or politically controversial. By their very nature, such controversial elements challenge the idea of a single, authoritative constitutional narrative. They suggest that the prevailing form of constitutional settlement may be contingent and open for reinterpretation, whereas the written constitutional form purports to be both self‑contained and to speak with finality on constitutional issues.
Unwritten constitutions are better able to assimilate controversial issues for a number of reasons. One reason is that the form of the constitution itself openly accommodates multiple sources of constitutional authority. With no obvious single source of constitutional authority (such as a constitutional text), unwritten constitutions draw on multiple claims to constitutional authority, each of which are mutually constitutive and mutually constraining. One manifestation of this feature is that it allows for radically different interpretations of the relevance of fundamental constitutional elements to co‑exist within a single constitutional framework. There is no need to reach a settled view on these issues in order for the constitution to speak with authority on them.
A second reason is that the unwritten constitutional form does not purport to make any claim to certainty or finality. Because constitutional stability tends to be promoted through informal entrenchment mechanisms, and because constraints on public power are dynamic and contextual rather than fixed and absolute, the prevailing treatment of genuinely controversial constitutional elements is regarded as contingent. The unwritten constitution moves to provide a working position on constitutional issues where (and to the extent that) this is legally and politically necessary, but the ‘final word’ on such matters is always left in ‘abeyance’.
These features of unwritten constitutionalism have been vital to accommodating the Treaty of Waitangi within New Zealand’s constitutional framework for the past 30 years or so. During this time a genuine reflexive relationship has developed where the constitution informs the proper place and effect of the Treaty, and the Treaty in turn informs the proper interpretation and effect of other elements of the constitution. The functional value of this reflexive relationship is important, as it allows for the Treaty to play a meaningful role in the development of our constitutional arrangements despite the deep legal uncertainty and political controversy to which it is subject. Embracing this controversy is in fact a legitimising feature of the unwritten constitutional form, and is something that cannot be completely replicated by a written constitution as traditionally conceived.
Lessons for a written constitution
The following points can be distilled from the above discussion:
The words used to incorporate the Treaty of Waitangi into any written constitution will directly impact on its legal effect and political salience.
New Zealand’s unwritten constitution has performed well at accommodating the Treaty in a constitutionally meaningful way despite (and perhaps even because of) its controversial nature.
Traditional approaches to constructing a written constitution are highly unlikely to replicate the unwritten constitution’s success in this regard.
As a result, any written constitution for Aotearoa‑New Zealand that takes the Treaty seriously will be required to adopt a novel approach. More work needs to be done to understand exactly what the detail of this novel approach may look like in practice, but some key observations can be noted.
First, the unwritten constitutional form has no monopoly on constitutional abeyances of the kind that have proved so useful in New Zealand’s constitutional development. However, they do not emerge directly from the form and structure of a written constitution and need to be deliberately constructed in that context. Every example of ambiguous or abstract constitutional drafting is a kind of abeyance that leaves the subject matter of the constitution for determination at some later point in time. It also leaves room for competing (and perhaps contradicting) narratives of constitutional legitimacy to co‑exist. There is potential for a modern written constitution to embrace ambiguity and uncertainty in its drafting in an appropriate way to bring forward with it the best elements of our unwritten constitutional practice.
Second, New Zealand has had some experience deferring the final resolution of the relevance of the Treaty with a particular form of statutory language. Reference to the “principles of the Treaty of Waitangi” has served as a basis for an expansive constitutional dialogue, rather than a narrow or fixed position. The value of this type of language, or variations on it, should be considered carefully as an option in the text of any draft constitution.
Third, textual abeyances are often undermined where the narrative of certainty that the traditional form of written constitution carries with it compels an authoritative decision maker (often a constitutional court) to address the issue in question with finality. An effort should therefore be made to accommodate contingent and limited resolution of Treaty issues in a constitutional context. This is likely to turn on the development of constitutional practice around the interpretation and enforcement of the constitutional text, such as the willingness of a final constitutional court to defer to political institutions or to revisit its own established precedent. Any guidance on these points that can be included in the constitutional text itself would be invaluable.
Finally, advocates for a written constitution ought to acknowledge openly that certainty issues — the place of the Treaty being one — cannot be finally resolved simply by adopting a constitutional text. If executed well, allowing for contingent, ambiguous positions on key issues promotes a more honest account of the relationship between the constitutional text, the citizens of New Zealand and the controversies implicit in our constitutional practice. Any modern constitution is required to acknowledge our differences as well as our shared experiences, and doing so only serves to emphasise the legitimacy of our constitutional arrangements. A written constitution is a map rather than a destination, a question rather than an answer. It will draw strength and authority from open acknowledgment and acceptance of these facts.
The current proposal
Under the current proposal, the key departure from written constitutionalism as traditionally conceived is the device of a “constitutional review” to be undertaken every 10 years. While this is a welcome innovation that should work to prevent some of the undue ossification of our constitutional practice, it is not sufficient to deal with inherently controversial issues such as the place of the Treaty.
The impetus for this review mechanism appears to be to escape the rigidity of formal entrenchment that can challenge the ability of a written constitution to pursue constitutional change and renewal. The vast majority of written constitutions around the world counterbalance their purported entrenchment with express provisions for the amendment of the authoritative constitutional document. However, history has demonstrated that the effectiveness of these amendment mechanisms can wane with time. The Constitution of the United States of America, for instance, is now famously difficult to amend because its formal amendment procedure is almost impossible to satisfy. This fundamental difficulty is to some extent common to all entrenched constitutions, and the current proposal for a written New Zealand constitution will be no exception. An in‑built review mechanism is as effective way as can be envisaged to address this difficulty, and to provide for flexibility in New Zealand’s constitutional arrangements over time.
Despite its merits as a constitutional device, a review mechanism cannot fully address issues of the type raised by incorporation of the Treaty into a written constitutional document. Review processes, however broadly conceived, cannot address issues of substance that remain controversial. In the case of the Treaty, even though a provision is subject to review any amendment is speculative, and an entrenched position with respect to the substantive legal and political effect of the Treaty must be adopted in the interim. Whatever that substantive position, it will create the very tensions and controversy that any successful written constitution ought to avoid unless the lessons from New Zealand’s unwritten constitutional tradition are heeded.
 This is simply a constitutional analogue of Matthew Palmer’s view that the way the Treaty is incorporated into legislation directly determines its legal meaning and effect: see “The Treaty of Waitangi in Legislation”  New Zealand Law Journal 207.
 This analysis draws heavily on Nicole Roughan Authorities: Conflicts, Cooperation, and Transnational Legal Theory (Oxford University Press, Oxford, 2013).
 For example, through modern developments to the common law doctrine of implied repeal of the kind asserted in Thoburn v Sunderland City Council  QB 151.
 The seminal example in the Treaty context is New Zealand Māori Council v Attorney‑General  1 NZLR 641 (HC and CA).
 The tem is borrowed from Michael Foley The Silence of Constitutions: Gaps, ‘Abeyances’ and Political Temperament in the Maintenance of Government (Routledge, London, 1989).
 An accessible example of this reflexive relationship is New Zealand Māori Council v Attorney-General  NZSC 6. For discussion relevant to the current project see Edward Willis “Constitutional Authority: Legitimising the Exercise of Public Power in New Zealand”  New Zealand Law Review 265 at 289‑300.
 See in particular Cass Sunstein “Incompletely Theorized Agreement in Constitutional Law” (1995) 108 Harvard Law Review 1733.
 This historical use of this phrase in a statutory context may carry some institutional baggage that is best avoided at the constitutional level. Reference to tikanga or whanonga pono, or even wairua, rather than ‘principles’ may prove an acceptable middle‑ground.
 Geoffrey Palmer and Andrew Butler A Constitution for Aotearoa New Zealand (Victoria University Press, Wellington, 2016) at 234‑235.
 Indeed, the proposed written constitution itself provides such a mechanism: Geoffrey Palmer and Andrew Butler A Constitution for Aotearoa New Zealand (Victoria University Press, Wellington, 2016) at 231‑234.