New Zealand has a constitution, but it is not well known or well understood, and it is not fit for the modern reality.
A constitution is a set of fundamental rules by which a nation is governed. Typically, a constitution explains how government institutions are structured, what powers the government has, what limits there are on government power, and how government institutions interact with each other and the public.
Most constitutions will contain protections for fundamental human rights and protections for individuals against the arbitrary or wrongful use of executive power.
New Zealand’s current constitution is formed by a jumble of statutes and is unclear to most citizens.
It can also be overridden easily by Parliament. Important features, such as the Bill of Rights, can be changed or removed by Parliament with no consultation and no popular mandate.
1: The current constitution is inaccessible
The current New Zealand Constitution is hard to find and hard to describe. It consists of a hodge-podge of rules, some legally binding, others not. It is formed by a jumble of New Zealand and old English statutes, many obscure conventions, a raft of court decisions, and much academic and professional commentary on constitutional practice.
Little attempt is made to bring the sum of the parts together so that an interested layperson can understand the framework within which political decisions are made. It is unsurprising that two recent official inquiries agreed that New Zealanders do not understand their own constitution.
The constitution is the foundation of law and politics in any country. It should be easy to find, so that people know the basic rules by which they are governed and public power is regulated. New Zealand is one of the few countries in the world where a citizen cannot go to a single source of those rules. The need for change is compelling. It is only right that we make our system known and knowable.
2: The current constitution is too fluid and subject to political whims
Unlike most other countries, nearly all of New Zealand’s constitutional rules can be altered easily. That is because:
- In New Zealand, a simple majority of Parliament (51%) has the power to make, repeal or amend almost any law that it pleases, including almost any constitutional law. Unlike most other participatory democracies, our judges cannot invalidate any such law on the grounds that it is unconstitutional.
- Our Parliament consists of one house only, the House of Representatives. This means laws can be made at great speed as there is no second House to act as a check. There is no requirement at all for government to consult with anyone before bringing a Bill before Parliament, and it can prevent a Bill from being sent out for public submissions. All of the usual legislative practices can be, and are, overridden where it suits the government of the day.
For example, it would be legally possible for our Parliament to repeal the Constitution Act 1986 or the New Zealand Bill of Rights Act 1990 in a single sitting day of the House under urgency, without any public input.
In our view, government should be conducted under the law. That law should apply to everyone, including Parliament. People have rights and they should be provided in a constitution that is supreme law and binds the Parliament.
3: The current constitution is out of step with modern New Zealand
Modern New Zealand is a very different place from the New Zealand of 50, or even 25, years ago. Our constitutional arrangements need to reflect that.
The ethnic composition of our population is changing rapidly. To many of us who live here now, the style of government that we operate under is not intuitive; nor does it wholly reflect our vision of ourselves. Greater diversity in our society requires more tolerance and a shared knowledge of the rules concerning how power should be exercised. We need a firm base from which to face the future – clear principles and clear rules within which political decisions are made.
Our Constitution should contain a vision about New Zealand as a nation; its identity, aspirations of its people, their rights and obligations. We need one document to which people can go and examine the rules for government, the principles upon which government shall be conducted and the rights that people enjoy.