Dr Andrew Butler

Speech at launch of A Constitution for Aotearoa New Zealand

Hosted by The New Zealand Initiative

At Russell McVeagh, Auckland

5 October 2016


Tēnā koutou katoa.

Ko Andrew Butler ahau.

He aha te take o tēnei mahi? Ka hiahia māua ko Geoffrey ki te timata i tētahi kōrero i waenga i ngā tāngata kātoa o ēnei motu, kia whakaaro e pa ana i te ara pai rawa atu mā te kaupapa ture o Aotearoa.

What is the driver of this work? Geoffrey and I want to start a conversation amongst New Zealanders, to think about the best path forward for our constitution.

Me whakawhiti kōrero, whakawhiti mātauranga hoki tātou kia whakatūturu ai, i te kaha o te kōrero.

He karanga tēnei ki ngā tangata katoa o Aotearoa ki te whakaaro, “he aha te ara pai rawa atu mā tā tātou kaupapa ture?”.

We need to share stories, and knowledge to ensure that conversation is strong and healthy.  This is a call to all New Zealanders to think “what do I think is the best path forward for our constitution?”

We would like to publicly acknowledge that a book like this has benefited from the input and contributions of many, including Victoria University Press (our publisher), Tom Scott (for his cartoons), and Scarlet Roberts (for her research assistance).

I would like however to especially thank three groups of people.

First, my family for their support.

Second, Geoffrey, I’d like to publicly thank you. I really enjoyed working on this project with you. I have loved debating, arguing and drafting with you.

Third, to Oliver Hartwich of the NZ Initiative for hosting this event tonight and for making your very thoughtful remarks.

The point of the exercise that we have embarked upon is to spark a discussion about the current and future New Zealand constitution. This is an important discussion that all of us need to be involved in.

But discussion doesn’t mean full agreement. That doesn’t happen in most endeavours in life and it’s not going to happen in the area of the constitution. But we won’t have an informed public view as to whether there is value in a written constitution, and if yes, what that constitution should look like, if we don’t discuss the issues.

So thank you Oliver for agreeing to host this event tonight – it is in the finest traditions of public discussion in this country and having heard your remarks I think we will be able to have a good healthy discussion.

Broadly, this project has three aims. First, and most importantly, to spark a public debate on the state and future of our constitution. Second, to promote the idea of the value to New Zealand of a written constitution. Third, to propose some changes to our existing constitutional arrangements.

The attraction of a written constitution is that we know where we can find the rules and the principles; and we know that we, as a community, have agreed that these are the fundamental rules and principles.

Look at what’s happening in the UK at the moment. The public have voted in a referendum to say no to Europe. No one seems to know whether the result of that referendum is binding. And if it is binding, no one seems to know who has the constitutional authority to trigger the exit process. So the Judges will get to decide. What a mess. It is often said that constitutions only get written in the face of a crisis. We are suggesting that we should not wait for a crisis. Brexit shows why.

Even though our primary goal is to promote the case for a written, codified constitution, unsurprisingly a lot of media attention to date has focused on the changes that we suggest. I don’t want to spoil the good read you have ahead of you once you buy the book. But there is one proposal in particular I’d like to touch on this evening. That is judicial review of legislation.

New Zealand is one of the few countries in the world that lives under Parliamentary sovereignty. It says that Parliament can enact any law it likes, as quickly as it likes, with as little consultation as it likes, with the involvement of a single Parliamentary chamber, so long as 50% plus 1 of the MPs support it.

In the book we point out real cases in New Zealand where this has occurred, and highlight the danger associated with that. We think that the days when the public would tolerate that level of power being entrusted to a simple majority in a single institution are passing. We propose allowing a judicial role to act as a handbrake by way of judicial review; this is a common check in many overseas democracies.

But we have already had a number of people say that our proposal will result in the Americanisation of the New Zealand constitution. I want to be very clear here tonight that that is not the case.

In fact, what we are proposing is based on New Zealand precedent. We propose to extend the existing constitutional entrenchment given to fundamental provisions of the Electoral Act 1993. At the moment, Parliament can only override fundamental electoral rules and principles if 75% of MPs support it; or if a majority of voters at a referendum support it (see section 268 of the 1993 Act). The core proposition we are putting to the New Zealand public to consider is, if Parliament recognises that the core principles of our electoral law need to be entrenched, why not the other core features of our constitution? And our point is that the amendment process will allow us as a community to retain flexibility to adapt and change like we did when we adopted MMP; that is what they have not been able to do in the US. We want a judicial handbrake, that is all; not a judicial veto.

For those who are still a little sceptical, can I put another example before you. Under most of our free trade agreements, we have agreed to investor protections including investor-state dispute settlement (ISDS) processes. The agreements allow an overseas investor to seek arbitration before a three member panel in respect of New Zealand legislation that it claims discriminates against, or otherwise unfairly treats, it. The plain packaging case against Australia is an example. We simply ask the question that if it is acceptable to allow an arbitration panel – only one of whom will have something at stake in this country – to sit in judgment on the impacts of New Zealand legislation on the rights of foreign investors, why is it not acceptable to allow our own citizens the ability to call New Zealand legislation to account for non-compliance with other fundamental standards, such as the Bill of Rights?

Public engagement is a core aim of this project. We have created a dedicated website; we are on Facebook; and we have even taken to the Twitter-sphere. Apparently we’ve made it to Reddit.

Starting in about two weeks time or so we will be running a roughly fortnightly cycle of more focused discussions on particular aspects of our proposals. We are looking for guest commenters on particular topics. We already have quite a number lined up. If anybody in this room is keen or interested, please let us know. More importantly, please give us your reaction to our proposals on Facebook or via the online submission form or on the hard copy submission forms available tonight at the bookstand.

We will be reporting back on the feedback we receive. We intend to revise our proposals with the benefit of what we receive.

Nō reira,

• He aha te kai ō te rangatira? He kōrero, he kōrero, he kōrero.

What is the food of the leader? It is knowledge. It is communication. It is conversation.

Tēnā koutou, tēnā koutou, tēnā koutou katoa.