Keynote address by Sir Geoffrey Palmer QC to the Open Source /Open Society Conference, Michael Fowler Centre Wellington
22 August 2016
Kia ora koutou. Thank you for inviting me to address you today. I’m finding your conference quite fascinating.
The new digital technology has changed all our lives, even those of constitutional lawyers.
It facilitates so much more consultation, so much more interconnectedness, so much more open and transparent government.
I am a big fan of open and transparent government. I am about to publish a new book which holds that at the heart of it. In this new project, A Constitution for Aotearoa New Zealand, Dr Andrew Butler and I propose a new Constitution building on the strength of the old, to strengthen open government and people’s rights and to protect against abuses.
The book published by the Victoria University Press will be launched at Parliament by Grant Robertson MP on 21 September.
We will be taking advantage of the new technology to consult the public on what we have proposed. We have set up a website for the purpose at www.constitutionaotearoa.org.nz.
So we will take submissions from the public through that and then we will revise our proposals before we attempt to promote it for political consideration.
We want to hear what the people have to say. Everyone has an interest and a stake in how we are governed.
But New Zealanders think little about their constitutional arrangements and hardly ever discuss them.
There is good reason for this. They cannot find their Constitution. It is not in one place. It is obscure in many respects.
The current New Zealand Constitution consists of a hodge-podge of rules, some legally binding, others not.
It is formed by a jumble of statutes, some New Zealand ones and some very old English ones; a plethora of obscure conventions, letters patent and manuals, and a raft of decisions of the courts.
There has been much academic and professional commentary on constitutional practice, all of it hard to find.
Other than parts of the Cabinet Manual, which has no legal status, no attempt has been made to bring the sum of the parts together.
An interested person cannot find a clear and coherent statement of the whole framework within which political decisions are made.
Surely this is not good enough in a modern, mature democracy?
The rules are opaque.
We need instead clarity and openness.
In a well educated society everyone needs to know what the rules are – members of the public, the public servants, the ministers, the judges.
The Constitution must not remain a mystery, known only to a few.
All need to be marching to the beat of the same constitutional drum.
Public power must be carefully distributed.
It must be plain who can make what decisions and the steps they must follow in making them.
The proposed Constitution sets out the powers of the Head of State, the Parliament, the Government and the Judiciary.
It deals with the Treaty of Waitangi, the Bill of Rights, international relations, defence, law- making and the nature of the State.
While much of this will be familiar to many New Zealanders there are improvements proposed in the Constitution.
The whole project aims to clarify the use of public power in New Zealand by:
- strengthening the accountability of Government
- reforming Parliament to some degree
- promoting transparency of decision-making by strengthening the Official Information Act
- promoting debate on how New Zealand is governed
- strengthening democracy
- protecting fundamental human rights
- securing the status of the Treaty of Waitangi
- providing clarity on how government works
- guarding against the abuse of power and strengthening the rule of law.
We have written a 250-page book setting out a 40-page written constitution and the reasons for it in plain language so everyone can understand it.
Once our proposed Constitution goes up on the website on Saturday September 17 we will seek public comment and submissions so we can refine our proposals further before presenting them to government in final form.
We are particularly concerned to reach young people who are often confused about how New Zealand is run.
What do they think?
Do they want to participate in the democratic process?
Are they turned off by it?
What could change that?
We thought the recent debate on the flag showed that New Zealanders yearned for a greater sense of their own constitutional identity.
A Constitution should say something about what and who we are about as a nation.
Concern about the inaccessibility of the most basic rules of how we govern ourselves is neither new nor idiosyncratic.
One of New Zealand’s leading historians, Professor J C Beaglehole, warned as far back as 1944 that New Zealand’s Constitution was “some silk-wrapped mystery, laid in an Ark of the Covenant round which alone the sleepless priests of the Crown Law Office tread with superstitious awe”.
Fast-forward 70 years and that concern remains valid.
Two recent official inquiries — one by a parliamentary Select Committee chaired by the Honourable Peter Dunne in 2005 and the other by a Government-appointed panel on constitutional issues in 2013 — agreed that New Zealanders do not understand their own Constitution.
No changes resulted from the two recent constitutional inquiries.
We think that is explained in part because there was no clear model out there for consideration.
We aim to fill that gap. It is desirable to keep constitutional arrangements in good repair and not neglect them.
By providing a drafted model for consideration people can specifically indicate what they like and what they do not like.
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.
In the modern age it is frankly shocking that that is so. There are only two other countries in the world that have constitutions as fragmented, unorganised and uncodified as we have.
They are the United Kingdom and Israel.
In the UK this could change. A great deal of work has been done by a House of Commons Select Committee on what a codified written constitution there could look like.
We are indebted to this work and the particular help we have received from Professor Robert Blackburn, a Professor of Constitutional law at King’s College London, who kindly arranged for us a seminar there of leading British constitutional lawyers in February this year.
Putting all the rules in one place is the minimum that needs to happen. Accessibility is not the only problem with our current arrangements.
New Zealand’s present constitution is incomplete, obscure, fragmentary and far too flexible. Our Constitution is subject to few limits.
It evolves in obscure and unpredictable ways that are not transparent. That is the trouble with such a political constitution.
Our constitution is not fully fit for purpose in the political and social realities of modern New Zealand and it needs to change.
New Zealand needs a constitution fit for the modern age.
Some nations are more successful than others. New Zealand is a successful nation but there’s no guarantee that it will stay successful. It’s something that needs constant attention and work. Part of that is keeping its institutions and constitutional arrangements in good order and condition, able to cope with the problems of the future.
It has been said that to be successful a nation needs three elements:
- a competent state—which means the administration is efficient and the authority of the state is respected and free of corruption;
- strong rule of law—which means all are subject to and equal before the law, including the law makers and enforcers themselves;
- democratic accountability—that is, accountability of those in power to the people they govern.
Without these fundamental elements underpinning it, a state could not function as it would be administratively inefficient, corrupt and subject to arbitrary and wrongful abuses of government power against the citizens of the state.
The codified Constitution we put forward seeks to prevent such developments from occurring here in New Zealand in the future by ensuring that everyone has free and easy access to the set of rules that set out government power, so that the people can hold Government to account for any breaches of this and uphold the rule of law.
It facilitates accountability and competence by strengthening the system of checks and balances or safeguards within the State which keep tabs on different branches of government and protects the interests and rights of the people.
A constitution must stand above the interests of any particular political party or political philosophy. It must belong to all of the people because it is under their will that government is conducted in a democracy.
They are the ultimate authority. To strengthen some of the safeguards in New Zealand we propose some changes.
For example, the principles governing the existing institutions of the Ombudsman, the Auditor-General, Parliamentary Commissioner for the Environment and the police need to be included in the Constitution.
We also recommend:
- setting up a new independent Information Authority to restructure the administration of
official information and improve transparency;
- including certain principles in the Constitution to reinvigorate the public service and protect its values;
- establishing a new Constitutional Commission to review the Constitution every 10 years and report upon possible amendments.
These are just a few examples of some of our proposals. The rest of our proposals will be revealed shortly before the book is published on September 21 so keep an eye on our website.
I would urge you all to take an interest in these matters and in creating a public conversation around what public power should look like in New Zealand and what sort of safeguards against it New Zealanders might want.