We are proposing a new codified constitution – A Constitution for Aotearoa New Zealand draws on our rich constitutional traditions but brings constitutional law into step with modern New Zealand. It is a modern, accessible Constitution under which public power can be fairly, readily and understandably exercised.
A Constitution for Aotearoa New Zealand aims to bring the principal rules and processes by which we govern ourselves into a single document.
It retains those enduring rules and processes which enable New Zealanders to participate in their own government. It preserves the core branches of government; parliamentary, executive and judicial. It formally recognises and sets out the rules around Cabinet Government. It affirms the central importance of free, fair and democratic elections. It guarantees the fundamental civil and political rights long recognised in our constitutional tradition.
It also overhauls those aspects of the system that need changing in favour of more modern features. Some of these innovations are significant.
For more detailed explanations, you can read the chapter 1 of the book, which explains our proposals, and you can also read the full text of the proposed constitution. You can also comment on the proposals. We’ll take your feedback into account in preparing a final version of A Constitution for Aotearoa New Zealand in 2017.
Key features of the proposed constitution
A Constitution for Aotearoa New Zealand proposes the legal establishment of the State of Aotearoa New Zealand. It sets out that all power derives from the people. It deals with the assets of the State and such subjects as citizenship, languages and territory. It replaces the poorly understood concept of “the Crown” with a legal entity, the State, as has been done in numerous Commonwealth countries.
The head of state
A Constitution for Aotearoa New Zealand proposes the creation of a new Head of State, elected in a free vote of the House of Representatives, with functions and duties similar to those of the current Governor-General.
The Parliament is recognised and confined to a fixed four-year term. The functions of the House of Representatives are set out, along with a new, politically neutral method for electing the Speaker, and a guarantee of free and fair parliamentary elections.
Parliament’s law-making powers are set out, including the need for information about legislation and the use of urgency in the House of Representatives.
Finance and taxation
Finance and taxation are dealt with in terms that provide little change from what now exists.
Government and Ministerial powers
The powers of the Government are defined, including the functions of the Executive Council. The offices and functions of Prime Minister and ministers are set out as well as those of the Cabinet. One purpose of the Constitution is to restrain the powers of the Government somewhat.
Judicial authority is vested in the courts. The framework for the judicial branch of government is set out, including the constitutional jurisdiction of the courts. A new Judicial Appointments Commission is provided for to bolster the independence of the Judiciary. The new constitutional power of the Judiciary will enhance the rule of law.
To promote transparency official information availability is constitutionally enhanced.
The public service
The principles governing the public service are set down.
Local government is given a set of principles that will enhance its functioning and give it constitutional status.
Powers relating to international relations and diplomacy are set out and parliamentary control is provided for.
Te Tiriti o Waitangi / the Treaty of Waitangi
Te Tiriti o Waitangi / the Treaty of Waitangi is made part of the Constitution thus providing it with a clear and certain status. See below for more detail.
Human rights are protected by including the Bill of Rights that we have had for 25 years as part of the Constitution with little alteration, although it will become more potent under the new arrangements. Some new guarantees have been added, such as a right to property, a right to privacy, and a right to an environment that is not harmful to health and wellbeing.
Suspension of the Constitution
The Constitution provides for its suspension in emergencies with proper approval procedures involving the House of Representatives.
Amendments to the Constitution
Finally, the Constitution provides mechanisms for its amendment by the people through referendum or by a supermajority (75 per cent) of MPs.
Why reform the constitution?
As well as proposing to codify New Zealand’s Constitution, we are proposing a number of key reforms.
A New Zealand head of state
Recognising that we already live in a “disguised republic”, the proposed constitution replaces the British monarchy with a domestic Head of State, while emphatically stating New Zealanders’ desire to remain within the Commonwealth. The domestic Head of State would have broadly similar powers as the Governor-General now has. A Constitution for Aotearoa New Zealand proposes to end the royal prerogative and replace it with provisions agreed by the House of Representatives. It also puts into law the most important constitutional conventions, which at present are vague and uncertain.
Entrenchment of the Constitution, with ultimate power reserved for the people
A Constitution for Aotearoa New Zealand does away with the outdated pretences that the Queen or Governor-General can theoretically refuse to give assent to an Act of Parliament (and thereby prevent it from becoming law).
It ends the conceit that a simple majority of Parliament should be allowed to pass any law that it likes even where it tramples unjustifiably on human rights, unreasonably disturbs the careful allocation of powers between the three branches of government, or amends the constitution.
Instead, A Constitution for Aotearoa New Zealand proposes the adoption of a supreme law constitution with a system of checks and balances including:
- entrenchment of the Constitution, so it cannot be amended on the whim of a bare Parliamentary majority
- an enhanced ability of the courts to enforce the constitution, including by striking down Acts of Parliament that are inconsistent with it.
This is a significant move, but there would be a necessary safeguard – the people would be able to reverse such a decision through a referendum or through a super-majority in Parliament. The proposed constitution could be changed either by a 75 percent majority in Parliament or by more than 50% support in a referendum of the people. In addition, A Constitution for Aotearoa New Zealand provides for ongoing 10-yearly reviews of the constitution. This preserves the power of Parliament to have the final say.
A four-year Parliamentary term
We propose that the House of Representatives be elected for a fixed four-year term, instead of up to three years. Better legislation should result from a longer parliamentary term, as governments will not need to push it through in such a rushed and hurried way. Moving to a fixed term allows the uncertain reserve powers of the Governor-General to be abolished.
Recognition of the Treaty of Waitangi
The status of the Treaty of Waitangi/Te Tiriti o Waitangi is already recognised in numerous statutes and court decisions. Its inclusion in a codified constitution makes its status explicit and puts it on a secure footing to reflect actual practice.
Strengthening the Bill of Rights
The existing Bill of Rights will be strengthened by the addition of a number of extra rights, including the right to education and the right to property. There will also be constitutional protection for the environment.