New Zealand Law Students Journal
Last Updated: 14 January 2013
A WRITTEN CONSTITUTION FOR NEW ZEALAND?
At the time of writing, New Zealand was one of only three countries in the
developed world whose constitution was not written.1 This, in
itself, shows the modern passion for written constitutions. For
countless years academic and public debate on whether
New Zealand should adopt a
written constitution – and the interrelated topic of whether we should cut
our ties from the motherland
by founding a republic – has been sporadic.
This essay attempts to refine that debate in order to determine the legitimacy
of such vast constitutional change for New Zealand.
Part A deals with the reasons for adopting a written constitution. I begin
with matters of definition – first, I outline the
general need for a
constitution, and then proceed to indicate the differences between a
“written” and an “unwritten”
to the fact that written constitutions are globally the contemporary default
setting I then ask if,
and why, they are superior to their unwritten
A brief outline of New Zealand’s constitution ensues. Here, I ask why
this country has remained relatively unaffected by a constitutional
is, in theory, highly conducive to abuse. In order to better answer this
question I take an excursion into the laws of
the United Kingdom and Israel; the
other two countries that share unwritten constitutional camaraderie with New
Zealand. At this
stage, I offer a tentative conclusion – it is not the
setup that matters, it is the actors.
Part B is concerned with the practicality of introducing a written
constitution to New Zealand; impediments to and perils of such
a change are
discussed. I conclude by highlighting situations conducive
* LLB, University of Otago. Candidate for LLM, Monash University.
1 Philip A Joseph, Constitutional and Administrative Law in New Zealand (3rd ed, Brookers,
2007), p 135.
218 The New Zealand Law Students’ Journal
(2009) 2 NZLSJ
to constitutional change, and proffering a reason as to why such change is
ultimately unlikely in New Zealand.
A. Written and Unwritten Constitutions
1. Definitional matters
(a) The need for constitutions
Before commencing argument on the merits and demerits of written and
unwritten constitutions, I should elucidate the need for a constitution
regardless of semblance.
In the 17th century, Thomas Hobbes observed that the nature of man
is comprised of three characteristics giving rise to quarrel amongst men:
diffidence and glory. This meant that without a “common power
to keep them all in awe” men would descend into bellum omnium contra
omnes: a war of “every man against every man”, what political
philosophers have subsequently termed the “state of nature”.2
This state, wrote Hobbes, meant the lives of men would be “solitary,
poor, nasty, brutish and short.”3 In order to avoid the state
of nature, men would form societal groups characterised by social contracts
– the giving up
of certain freedoms, such as the freedom to take the life
of other human beings, in exchange for the protection of the group. Part
social contract involved individuals relinquishing their right to self-govern;
instead, an “assembly of men”
would determine the direction
Hobbes wrote at a time when England was plagued by civil war and fear for
individual rights was rife – an immense wealth of
power did reside in the
executive branch of government. In 1611, the English Courts recognised the
need for a check on this
executive power, holding proclamations made by
the King purporting to be law that were not empowered by an act of Parliament to
2 Thomas Hobbes Leviathan (1651), Ch 13.
3 Ibid, Ch 13.
4 Ibid, Ch 18.
5 Case of Proclamations (1611) 12 Co Rep
A Written Constitution for New Zealand? 219
This case recognised the need for what is now referred to as the “rule
of law”, which has many a manifestation but for
present purposes can be
defined as the obligation of the executive to act only in accordance with law
– to treat others as
they would treat themselves. Implicit in this notion
is that members of the executive are not above the law, but rather below it
subject to it, just like ordinary citizens.
Ultimately, it is the rule of law that a constitution seeks to uphold,6
and indeed in 1689 the English Parliament enacted one of the founding
constitutional documents of that country – a bill of rights
order to protect fundamental civil and political rights from interference by
Over time, while the notion of “rights” has expanded to
include positive property and socio-economic rights,7 the focus of
constitutions is still in upholding the rule of law and founding
“constitutionalism”8 generally by preventing those
with power from abusing the power given to them. The need for constitutions is
without a constitution is power without
(b) What constitutes “written”?
With the myriad variations of written constitutions in existence, it is not
hard to imagine the difficulties that come with imprecise
definition. No stark contrast can be drawn between written and unwritten;
constitutions, by their nature, vary
greatly in form and function. Suffice to
note for current purposes the sharp definitional divisions I will draw are a far
the spectrum of manifestations a constitution can take in
6 I should qualify this by adding “from the perspective of the people”, who, in respect of government, would be more concerned with restricting the abuse of power rather than the other fundamental features of constitutions which legal scholars consider necessary, such as matters of due process.
7 “Positive rights” are those empowering a state to interfere with the lives of individuals
in order to guarantee basic living standards. This is opposed to traditional “negative” rights, which are focussed on keeping the state away from interfering with individual autonomy.
8 “Constitutionalism” is the notion that the rule of law, judicial independence, and the
existence of basic rights are present in a society, regardless of the presence or absence of a constitution itself.
9 Thomas Paine, The Rights of Man (1795), Ch 4.
Paradoxically, it may be necessary to define what is unwritten before being
able to define what is written. An academic perspective
on point is that of
Finer, Bogdanor and Rudden, who argue in the context of the United Kingdom that
there are three common features
of unwritten constitutions: they are
indeterminate, indistinct and unentrenched.10
Indeterminacy is found in the inability to identify, with certainty, the
content of any particular constitutional laws. Many matters
of great importance
to the daily running of a state (with an unwritten constitution) are left to
customs, conventions, and Standing
Orders of the House of
Unwritten constitutions have an indistinct structure because they
identify no supreme law by which ordinary laws can be struck
out. In other
words, there is no order of precedence in the unwritten constitutional system.
Constitutional laws in this sense are
a “rag-bag of statutes and judicial
interpretations thereof, of conventions, of the Law and custom of Parliament, of
law principle, and jurisprudence.”12
Finally, Finer et al. cite the unentrenched feature of constitutional laws in
the United Kingdom as a cause for indeterminate content
structure. These laws are not given any special status and can thus be
changed, repealed, and amended in the
same way as any ordinary Act of
Deducing from this useful definition, we can assume that a written
constitution is an entrenched document containing a hierarchy of
important laws pertaining to the configuration of the state it has jurisdiction
over. I proceed on this basis.
2. The argument for a written constitution
Like a phoenix from the ashes, written constitutions appear to rise from
nations in the wake of a crisis or exceptional circumstance
10 S.E. Finer, Vernon Bogdanor & Bernard Rudden, “On the Constitution of the United
Kingdom” in Comparing Constitutions (Oxford University Press, 1995).
11 Ibid, Para 4.
12 Ibid, Para 7.
13 Ibid, Para 8.
some sort.14 Beginning in France and the United States of America
in the late 18th century, there have been seven “waves of
constitution- making” that have occurred as a result of these
crises.15 Each time, a written constitution has been chosen as the
template for rebuilding the nation; the only country in the wake of a crisis
that adopted the unwritten structure was Israel in 1948.
Why then are written constitutions the global ‘default’ setting?
Written constitutions have obvious appeal to fledgling
or recuperating nations
– they are, by their nature, harder to change and easier to apply than
their unwritten counterparts.16 For a nation attempting to rebuild
itself out of the tatters of crisis, choosing a lapidary code akin to the Ten
far more practical than colloidal customary law.
An unwritten constitution that is heavily reliant on custom and experience
would surely not win favour with a public that has had
to experience first
hand the abuse of previous constitutional actors. Written constitutions
codify the rule of law, making
it an immovable force that can withstand all
forms of abuse. Therefore, it is the best launching pad for
3. Are written constitutions working?
It is not possible to measure the desirability of written constitutions
without having regard to their success in practice. Are written
upholding the rule of law in nations that have adopted them? That is to say, is
there constitutionalism where there
are written constitutions?
The answer to this question is convoluted. For the sake of simplicity, I
answer: in some countries yes, in others no. The United
States of America,
Canada, France and Australia are all obvious examples of the success of
constitutionalism under written constitutions
– I need not evidence their
comparatively enviable democratic records here.
14 The exceptions to the rule are Sweden and Canada.
15 Jon Elster “Forces and Mechanisms in the Constitution-making Process” (1995) 45
Duke L.J. 364, p 368.
16 Due to the aforementioned inherent features of determinacy, distinctiveness and
entrenchedness; see above Part A, 1 (b).
Africa is a different story, with a long postcolonial history of
constitutions without constitutionalism. I need only make reference
Rwandan and Sudanese genocides of the past decade as extreme examples of a
complete lack of basic human rights. More recently
still is the Zimbabwean
presidential election turmoil.
Why has constitutionalism largely failed for Africa’s nations? As the
sun was setting on colonial rule in Africa, departing
colonisers left bundled
constitutional packages with the leaders of the African nations. They came,
wrote H. Kwasi Prempeh:
Complete with protections for opposition parties, individual rights,
independent courts, and some measure of regional or local autonomy,
Africa’s founding constitutions ... were supposed to lay
the foundation for postcolonial constitutionalism.
However, soon after the
attainment of sovereign statehood Africa’s new managers
discarded their so-called independence
These “new managers” were the imperial presidents, who promptly
set about ignoring the constitutions given to them and
the principles contained
therein – they were generally considered a hindrance to national
development. Seen as liberators from
colonial rule, the people did not object to
the wayward decision-making of their presidents. With nothing to check the
in the newfound executive, the tyranny of authoritarianism emerged.
On the African continent to this day, there has been at
progress in certain countries towards constitutionalism and democracy in
This sharp divergence in the success of written constitutions is a
strange anomaly, which I will attempt to explain later
in this part.18
I turn now to give an outline of New Zealand’s constitution to
compare with the written ‘ideal’.
17 H. Kwasi Prempeh “Africa’s “Constitutionalism Revival”: False Start or New Dawn?”
5 Int’l J. Const. L. 469, p 473.
18 See below, Part A, 6.
4. The New Zealand constitution
New Zealand’s constitution is drawn from numerous legal and non- legal
sources. In the words of leading constitutional academic
Philip Joseph, it is
informally organised framework of rules that establish and empower the three
branches of government... define their functions, composition
inter se, and provide for the rights and duties of
Statutes are the premier legal source of New Zealand’s constitution.
The Constitution Act 1986 is the most fundamental piece
of legislation as it
attempts to bring together laws of constitutional significance into the one
statute.20 Nevertheless, there are numerous pieces of important
legislation, such as the New Zealand Bill of Rights Act 199021 and
the Electoral Act 1993.22 Despite this significant constitutional
change in the late 1980’s and early 1990’s, a simple Parliamentary
yet undo all the progress made in giving our constitution a
greater degree of determinacy.23 Other sources of the
constitution include common law, royal prerogatives, delegated and subordinate
law, the Standing Orders of the House of
Representatives and constitutional convention.24
Of particular note is the wealth of power that resides in the legislative
branch of government. As Joseph notes, there are “no
limits on legislative
power in a unitary state with no federal divisions, no entrenched laws, and no
constitutional Bill of Rights.”25 Parliament is supreme,
having full power to make laws,26 and thus “can
19 The Laws of New Zealand Volume 7 (Butterworths, 2003), p 2.
20 See Constitution Act 1986, Long Title.
21 An Act protecting the rights of citizens from interference by the Government and those with public power.
22 An Act outlining significant features of electoral law, including the way Parliament is to be structured and composed after an election.
23 With the exception of six provisions in the Electoral Act 1993, which require a three- quarters majority in Parliament, or a national referendum.
24 See generally The Laws of New Zealand above n19, pp 4-5.
25 Ibid, p 13.
26 Constitution Act 1986, s 15(1).
everything but make a woman a man, and a man a woman.”27
This concentration of power into one head of government is of concern; in
theory, Parliament could pass any law they saw fit, no matter
how oppressive or
It is this kind of potential for constitutional abuse that a written constitution remedies. While nothing quite as drastic as the African experience has happened in New Zealand as yet, there have been incidents in the past that outline just how conducive to abuse our unwritten constitution can be.28 But these incidents have not resulted from poorly distributed power amongst the branches of government; rather they have been a result of manipulation of constitutional laws to suit the personal goals of a wayward member of the executive. I refer here of course to Sir Robert Muldoon, whose actions in 197529 and
198430 served to bring New Zealand the closest it has
come to a constitutional crisis.
Despite these incidents, New Zealand’s constitutional history is not
rife with abuse by constitutional actors. Rather, it has
had quite a placid
existence. The question thus arises: how has New Zealand managed to keep such a
clean record in light of this
constitutional structure that is (in theory) so
conducive to abuse? Perhaps international examples can shed some light on the
I turn in search of abuse to our constitutional kindred – the
United Kingdom and Israel.
3. Selected international examples: an exercise in comparison
(a) The United Kingdom
An unwritten constitution has survived in the United Kingdom since the birth
of the Magna Carta in 1215 – almost 800 years of
survival on conventions
and customs. Whilst it is regarded as an “incomplete system,
consisting of piecemeal legislation,
ancient common law doctrines, and
constitutional conventions”,31 those indeterminate
27 Dicey, Introduction to the study of the Law of the Constitution (8th ed., 1915), p 41.
28 See below, n 29 and n 50.
29 See Fitzgerald v Muldoon  2 NZLR 615.
30 See below, n 50.
31Halsbury’s Laws of England Volume 8(2) (4th
ed., Butterworths, 1996) 7.
have become so well-woven into the British constitutional tapestry that
change has become almost unthinkable.
The main point of difference between the United Kingdom’s unwritten
constitutional format when New Zealand inherited it, and
now, is the
ratification of the European Convention for the Protection of Human Rights and
Fundamental Freedoms (1950). This document
has heralded significant
constitutional change; it is supreme, and thus takes precedence over the
national legislation of member
Prior to ratification of the Convention, when no domestic bill of rights
existed in the United Kingdom, the common law was
the main watchdog of
executive encroachment onto fundamental rights and wayward administrative
action. With regard to administrative
action, the phenomenal growth of judicial
review since the early 1980’s33 is indicative in itself of the
willingness of the English Courts to approach such matters and award appropriate
not technically having any legal power to do
In terms of fundamental rights, the Courts took the approach that citizens
had the freedom to act however they wished, provided the
legislature had not
explicitly curbed that freedom.35 In the famous case of Entick v
Carrington36 a trespass action was upheld against members of the
executive who searched the Plaintiff’s home and seized his papers. Unless
the Defendants could point to some positive law authorising their action, they
had no grounds on which to infringe the Plaintiff’s
property right. The
legislature had given no such positive authority, and the Defendants were
So in the past, the English Courts have acted as a fairly imposing check on
any sign of constitutional abuse, and now that supreme
European law has been
adopted, the Courts have another significant weapon in their arsenal to prevent
wayward executive (and now
32 Ibid, Para 24.
33 A W Bradley and KD Ewing Constitutional and Administrative Law (12th ed., Longman,
1998), p 460.
34 Robert L. Maddex Congressional Quarterly’s Constitutions of the World (1997), p 296.
35 Constitutional and Administrative Law, above n 33.
36 Entick v Carrington  EWHC J98; (1765) 19 St Tr 1030; Ch
After declaring independence in 1948, Israel set about the process of vast
constitutional reform. A constitutional assembly was formed
in order to
determine the structure of the new state, and in particular to determine whether
a written or an unwritten constitution
would be more beneficial. Despite the
serious need to legitimise government, enshrine the doctrine of
separation of powers
and guarantee fundamental human rights in order to
prevent abuse, an unwritten constitution was favoured for its flexibility;
undoubtedly a paramount consideration in times of great
So arose the “basic laws”, which still provide the structure of
the Israeli constitution today. Like New Zealand, these
constitutional laws were
not given any superior status to ordinary legislation and could be amended with
a simple majority from the
Israeli legislative authority, the Knesset.
From 1948 to 1992, there were no basic laws regarding human rights. This did not
stop the Israeli Supreme Court from protecting
the individual; the doctrine that
individuals were free to do as they please, except so far as the Knesset
restricts that freedom38 was formulated and upheld in a long line
of case law.39 Perhaps more important in the Israeli context, the
Courts have strong powers of judicial review, with the ability to strike down
actions and decisions.40
The passing of the Basic Law: Human Dignity and Liberty in 1992 heralded
significant constitutional change in Israel. Section 8 of
that Basic Law
The rights according to this Basic Law shall not be infringed except by a
statute that befits the values of the State of Israel and
is directed towards a
worthy purpose, and then only to an extent that does not exceed what is
37 This is not to undermine the immense difficulty in creating a single document that reconciles Arabic and Jewish laws and interests.
38 Kol Ha’am v Minister of Interior (1953) 7 P.D. 871.
39 David Kretzmer “The New Basic Laws on Human Rights: A Mini-Revolution in Israeli
Constitutional Law?” (1992) 26 Isr. L. Rev. 238, p 239.
40 Amos Shapira “The Status of Fundamental Individual Rights in the Absence of a
Written Constitution” (1974) 9 Isr. L. Rev. 498, p 501.
While the Knesset awarded no special status to Section 8, the Supreme Court
latched onto it, finding it has a “super-legislative”41
status and any legislation infringing these human rights that does
not satisfy section 8 will be declared invalid.42 This judgment
broke the floodgates, with the same approach being applied to the remaining
The Israeli Courts have thus used their interpretive powers liberally in
order to give Israeli constitutional laws supremacy. Despite
status, there is still disparity between legal theory and practice in Israel,
especially in relation to human rights.
Even the President of the Israeli
Supreme Court recognises the “gap between law and reality” in this
area.43 In addition, reports from the United Nations Human Rights
Council have consistently expressed concern as to the standard of
compliance with the International Covenant on Civil and
Political Rights. The most recent of these reports, presented to
Assembly in November 2007, identifies:
Serious situations of incompatibility of [Israel’s]
obligations pertaining to human rights and fundamental
freedoms...such situations include the prohibition of torture or cruel,
inhuman or degrading treatment; the right to life
and humanitarian law
principles...the right to liberty and fair trial; and the severe impact of the
construction of the barrier in
the West Bank and associated measures on the
enjoyment of civil, cultural, economic, political and social rights and freedoms
the Occupied Palestinian Territory. Addressing the full range of those
situations is imperative, not only to secure compliance by
Israel with its
To make matters worse, fresh allegations of “psychological
torture” have arisen from the media in recent times.45 The
main protagonist is the Israeli Security Agency, who have applied the law as
given to them by the Knesset with perhaps too heavy
a hand. The concern is thus
41 Aharon Barak “Human Rights in Israel” (2006) 39(2) Isr. L. Rev. p 18.
42 United Mizrachi Bank v Migdal Agricultural Cooperative  Isr SC 49(4) 221.
43 Aharon Barak, above n 41.
44 Report available at http://www.ohchr.org/EN/Countries/MENARegion/
45 Martin Asser “Israel ‘using psychological torture’” last updated 1 April 2008, available
custodiet ipsos custodes?46 At present, no one – a
constitution is present, but constitutionalism is absent.
4. A tentative conclusion
Theory is one thing, but as the above examples have shown, practical
application is another. We have witnessed the long-standing superiority
American and French written constitutions. We have also witnessed similar
written constitutions allow anarchy on the African
continent. We have witnessed
the flexibility and adaptability of the unwritten constitution with great
success in the United Kingdom,
and a great degree of success in New Zealand. We
have also witnessed the lack of efficacy that same system has had in upholding
rule of law for the people of Israel. What can we possibly conclude from
In response to suggestions by Mai Chen and Sir Geoffrey Palmer that a supreme
constitution for New Zealand is likely in the near future,
Gibbons suggested that it is the actors, not the script, which needs
change.47 Gibbons notes the man at the centre of New Zealand’s
major historical constitutional crisis is Sir Robert Muldoon, a Prime Minister
who “stretched the boundaries of constitutional propriety.”48
Therefore, he argued, the focus on amending the constitution in order to
remedy abuse is flawed.
I take that distinction and expand on it here to argue that in general, it
may not matter which constitutional format a nation takes;
at the end of the
day it is the will of society that enforces political and
constitutional expedience. To quote the famous
American jurist, Judge Learned
I often wonder whether we do not rest our hopes too much upon constitutions,
upon laws, and upon courts. These are false hopes;
believe me, these are false
hopes. Liberty lies in the hearts of men and women; when it dies there, no
constitution, no law, no court
can save it; no constitution, no law, no court
can even do much to help it.
46 “Who will watch the watchmen?” from Plato Republic (360 BC).
47 Thomas Gibbons “Rethinking the Constitution in Crisis” (2005) NZLJ 359.
48 Ibid, p 359.
While it lies there it needs no constitution, no law, no court to save
There may be significant force in this argument. If accepted, it will not
make an iota of difference which constitutional format New
Zealand adopts. We
are a relatively placid society when compared with the violent factional
conflict that still occurs in Israel.
As is the United States of America when
compared to the African nations that have attempted to graft the foreign concept
of a written
constitution onto their people. Constitutions are reflective of the
society that gives birth to them. If society has a keen interest
and upholding the rule of law, both written and unwritten constitutions will
rise to the occasion in order to quell
abuse – they will simply take
different routes to achieve that goal.
B. Contextual Issues for New Zealand
From the preceding part of this essay, the question of need arises. That is
to say, regardless of whether a written constitution
beneficial to our nation in fact, should New Zealand get one? I argue
three points that indicate, on balance, that this question should be answered in
the negative. The first
is that we do not need change, evidenced by our
successful track record with informal constitutional structures, namely
constitutional conventions and the
New Zealand Bill of Rights Act 1990
(“Bill of Rights”). The second highlights the immense
difficulty of change – the constitutional position of Maori and the
Treaty of Waitangi. The third point is focussed on the dangers of change,
particularly the redistribution of powers between branches of government. This
third feature is divisible into two categories
– the politicisation of an
empowered head of state, and the monumental increase of power in the hands of
1. The lack of need for change: the success of informality
(a) Constitutional convention
Despite the serious shortcomings of constitutional conventions, I
would argue that in the New Zealand context they are a sufficient
49 Judge Learned Hand, speech, New York, 21 May 1944, cited in
Gibbons, above n 47.
any abuse of power. They certainly have proved successful in the past; where
New Zealand’s constitution has looked like providing
a loophole for abuse,
constitutional convention has risen to the occasion. The most notable event is
best recounted by Sir Geoffrey
In July 1984, immediately after the Labour Government was elected, a serious
constitutional event occurred. It arose from the unwillingness
of the outgoing
National Prime Minister, Sir Robert Muldoon, to recommend to the
Governor-General urgent financial measures concerning
devaluation of the
currency, which those who were forming the incoming government saw as
essential. Under New Zealand law,
there was real doubt whether the party that
had won a general election but had not yet formally taken power could
a government and take responsibility for the measures. In the
event, a grave situation was narrowly averted – through
rather than law.50
While not enforceable in the courts, conventions are flexible, and can thus
adapt to new situations and ideas. Conventions “seek
to restrain political
adventurers. Their very existence may be denied or their relevance disputed. And
when the political dust settles,
no one may be the wiser.”51
Paradoxically, the fact that conventions are indeterminate means they can
be the perfect shield against constitutional abuse.
(b) The Bill of Rights
The position of fundamental rights in New Zealand is sound, as the Courts
have taken an expansive approach to the Bill of Rights since
its enactment in
1990. The most notable example of liberal interpretation is Baigent’s
Case.52 There, the Court of Appeal read in the ability to award
remedies for breaches of the Bill of Rights in exceptional cases. This is
notwithstanding the fact that such an ability was specifically rejected from
inclusion by Parliament.53 This approach has been affirmed in
subsequent cases,54 albeit rarely.55 So long as the
50 Geoffrey Palmer and Matthew Palmer, Bridled Power: New Zealand’s constitution and government (Oxford University Press, 2004), p 7.
51 See Joseph, above n 1, p 216.
52 Simpson v A-G [Baigent’s Case]  3 NZLR 667.
53 See the Government White Paper: A Bill of Rights for New Zealand  AJHR A.6.
54 See Brown v A-G  3 NZLR 335.
55 See generally Joseph, above n 1, Para 26.3.4.
Zealand Courts continue to act as a prudent watchdog of fundamental rights,
the need for an entrenched, supreme bill of rights is
(c) Restrained actors
For the majority of New Zealand’s history, constitutional actors with
significant power have not abused that power. Sir Geoffrey
Palmer notes two
exceptions: former Prime Minister Sir Robert Muldoon, and Governor George
Palmer uses these examples as evidence of just how susceptible to abuse the
New Zealand constitution can be. Whilst I do agree that
our constitution is
theoretically susceptible to abuse, I argue that such abuse is likely to
be quelled before any constitutional
crisis can occur, thanks to constitutional
In addition, I note that these are but two incidents in 170 years of
constitutional history – an enviable record for any democracy.
actions of Governor Grey were regarded as “what must be surely one of the
most extraordinary acts of disobedience
by a civil servant to a Statute of the
Imperial Parliament duly assented to by Queen
2. The difficulty of change: the Treaty of Waitangi and the constitutional position of Maori
In the past two decades, both the courts and Government have been increasingly friendly towards redress of historical injustices to Maori. Fiscally, Treaty settlements have now reached an astonishing
$794,343,776, with a forecast of another $355,206,000 until the year
2011.58 With the Clark Government abolishing the initial $1
billion cap in July 2000 in favour of an approach which treats each claim on its
merits,59 that number is set to continue its healthy
56 See Geoffrey Palmer and Matthew Palmer, above n 50.
57 Alex Frame in D Carter and M Palmer Roles and Perspectives in the Law: Essays in Honour of
Sir Ivor Richardson (Victoria University Press, 2002).
58 Four Monthly Report March – June 2007, Office of Treaty Settlements, available at www.ots.govt.nz.
59 Joseph, above n 1, p 86.
On the judicial front, the courts still only enforce the Treaty in so far as
it is incorporated into an Act of Parliament.60 But where
there is statutory incorporation, that enforcement has been liberal: the focus
has been on applying the principles and
“spirit” of the document,
rather than its provisions.61 It has thus gained recognition as one
of New Zealand’s premier constitutional documents, a position which Maori
would no doubt
be very unwilling to renounce. It would be safe to assume that no
constitutional change will occur without serious input from Maori
position is far too important to be ignored. But is the Treaty important enough
to warrant binding countless future
generations as supreme law? Further,
should the Treaty simply be adopted into the new constitution, or should it
If the former were to occur, the courts would no doubt take the same approach
they have already taken – to interpret the Treaty
according to vague
notions of principle and spirit, rather than the text itself. With the added
feature of supremacy, the Treaty
would become the single most powerful source of
law in the country. This is troublesome, and in terms of determinacy would
to defeat the entire purpose of formulating a written
Conversely, it is difficult to see how rewriting a constitutional
document in order to recognise Maori would be any more
practical. Such a task
would involve years of widespread consultation with Maori nationwide. As Mason
Durie suggests, without this
exhaustive consultation; entrenchment of rights
to land, culture, language, fisheries, forests, intellectual property and
heritage; and 75 percent majority support in a national referendum on the
matter, Maori would not be likely to agree to a proposed
60 Hoani Te Heuheu Tukino v Aotea District Maori Land Board  AC 308 (PC).
61 NZ Maori Council v A-G  1 NZLR 513, p 517 (PC), NZ Maori Council v A-G
 1 NZLR 641, p 663 per Cooke P (CA).
62 Mason Durie “A Framework for Considering Constitutional Change and the Position
of Maori in Aotearoa” in Building the Constitution (Colin James
Ed., Brebner, 2000), p 414.
3. The dangers of change: the inevitable redistribution of
(a) The head of state
As both Australia and Canada evidence, it is still possible to retain a
Governor-General as the head of state under a written constitution.
that New Zealand remained under the watchful eye of the monarchy, a wealth of
power given to a newly appointed head of state
(in the form of a president, no
doubt) is not a major concern if the written constitution transition were
However, since a written constitution would most likely arise as a result of
republicanism,63 the day of a non-partisan head of state may be
numbered. Opponents of republicanism cite the inevitable politicisation of
head of state as a dire concern and the major reason for avoidance of
But is the head of state’s role not already somewhat politicised?
Currently, the Queen as sovereign appoints the Governor-General
on the advice of
the Prime Minister of the day, in accordance with constitutional convention. How
is it possible to exclude the distinct
probability of partisan political
considerations on the Prime Minister’s part, when he or she is determining
who the successful
candidate will be? We cannot be sure. In any case, this
situation does not give rise to a great degree of political partisanship,
least not the extent that a president would inherit if he or she were required
to campaign for public affection.
Aside of political partisanship, the real danger lies in the powers
awarded to the new head of state; if a president will
retain the largely
ceremonial role of the current Governor-General, there is little need for
concern. If, on the other hand, a New
Zealand president were given veto powers
to refuse assent to bills, there would exist a much greater probability for
abuse than from any democratically elected parliamentary
63 See below, Part B, 4 (a).
(b) The judiciary
Unlike the role of head of state, there is no question as to the
significant wealth of power the Courts would inherit
from a written
constitution. Armed with supreme law, the sovereignty of Parliament would be at
risk from judges who are appointed,
not elected. In the process, democracy can
be compromised. Citizens would be stripped of their right to have the law
a duly elected assembly, supplanted instead by the
determinations of a potentially partisan judicial body. It is not difficult
to see why this is a primary concern of opponents to a written
4. Situations conducive to change
Bearing in mind these arguments against a written constitution for New
Zealand, I consider three ways in which constitutional change
is likely to
occur. First is a move to Republicanism, which is perhaps the most obvious and
likely of the options. Second, there
is always potential for a constitutional
crisis, giving rise to recognition of the need for a written constitution.
could be widespread public recognition that our constitution is
The issue of whether New Zealand should detach itself from the
United Kingdom often appears in close proximity to the written/unwritten
constitution debate. Some argue vigorously for change;64 others want
to cling desperately onto the Monarchy and our British heritage.65
Some take the more moderate stance that New Zealand will make the change
when Australia does.66 In all cases, it is accepted that at some
point in the future, New Zealand will put this talk of separation into practice.
Prime Minister Jim Bolger has said:
64 See the Republican Movement of Aotearoa New Zealand website at www.republic.org.nz/.
65 See the Monarchist League of New Zealand Inc. website at www.geocities.com/cox_nz/.
66 See Palmer, above n 50.
... momentum for change will gather as we identify more with our Asia-Pacific
region of the world and as our direct links to Britain
decline. But the big
reason will be that we want to be independent New Zealanders. This will not
happen because of any lack
of affection or love for our Queen in London,
but because the tide of history is moving in one direction.67
At the time, Prime Minster Bolger felt the catalyst for such change would be
the arrival of MMP. While this did not eventuate, the
arrival of MMP was one
event in a long list of incremental steps, having the effect of distancing
ourselves further from the United
Kingdom. The latest and perhaps most
significant of these steps was the passing of the Supreme Court Act 2003, an Act
judicial ties with the Privy Council. Specifically, the Act noted
as its purpose to “recognise that New Zealand is an independent
with its own history and traditions...”68 The building
blocks have been put into place; it is merely a matter of time before New
Zealand takes the plunge into republicanism.
A written constitution arising from a republican move is not by any means
inevitable. If the Government wished, it could simply sever
ties with the
United Kingdom by passing an amendment to the Constitution
Act.69 Such an amendment would require substitution of the
identification of the current head of state, the Sovereign in right of New
for another provision identifying the new head of state, although the
legality of such a move is questionable.70 This way, the
Governor-General would retain largely the same role he presently has –
ceremonial and non-partisan.
But I submit that this avenue is not likely, and if the move to a republic
was made, New Zealand would contemporaneously make the
move to a written
constitution in order to elucidate and codify the role and powers of the new
head of state – lack
of clarity is not a risk proponents of
change would be too willing to make to sell their product to the New
67 (8 March 1994) 539 New Zealand Parliamentary Debates 121.
68 Supreme Court Act 2003, s 3(1)(a)(i).
69 Namely section 2(1), which identifies the current head of state: “The sovereign in right
of New Zealand is the head of state of New Zealand...”
70 See Sir Robin Cooke “The Suggested Revolution against the Crown” in Essays on the
Constitution (Philip A Joseph Ed., Brookers, 1995), p
(c) Constitutional crisis
Would another constitutional crisis, akin to what happened in 1984, give rise to constitutional change? It certainly did then, resulting in the introduction of the Constitution Act 1986, an Act which elucidated a great deal of New Zealand’s constitutional laws. This therefore would appear to be the likeliest route to constitutional change. However, in order for a crisis to arise, we would generally require an abusive constitutional actor taking advantage of some shortcoming in the law. This has happened in practice – to the best of this writer’s knowledge – twice, in 170 years of constitutional history, in the 1840’s and the
1980’s. Thus it may be another 100 years before another such event
occurs – not nearly as likely as the aforementioned
(d) Recognition of a Constitution in Crisis
This concept, formulated by Sir Geoffrey Palmer, is less indicative of
emergency than is a constitutional crisis. Rather, it denotes
the lack of
efficacy of the rules under which government is conducted.
Prior to the arrival of a mixed member proportional electoral system
(“MMP”), Palmer argued that New Zealand’s rules
“massive changes rapidly with inadequate public
consultation,” as the constitution was too flexible
and evolved too
easily. The essence of our constitution in crisis lay in the
“maldistribution of power between its component
“overwhelming executive power.”71 Palmer revised his
opinion in light of the arrival of MMP – a system that provides an
efficacious check on the overwhelming
executive power he had in mind.
Nevertheless, while New Zealand’s constitution may not currently be in
crisis (as was Palmer’s
concern), this does not prevent the possibility of
a national recognition that an unwritten constitution is simply not up to
Indeed, this is precisely what occurred in Canada – an experience
that is the lifeblood of proponents for change in New
71 Geoffrey Palmer New Zealand’s constitution in crisis: reforming our political system (McIndoe,
1992), pp 9-14.
Canada’s written constitution arose with relative ease, in the absence
of a particular catalysing moment, inducing the need
for such change. Would the
simple national awareness, that New Zealand requires a written constitution,
because an unwritten constitution
is theoretically susceptible to abuse, suffice
as a similar catalyst? Not in all likelihood. New Zealand’s constitutional
is characterised by “pragmatic evolution.”72 As
explained by Joseph:
Social Commentators have observed that the New Zealand temperament inclined
more to pragmatism and physical environment, than to doctrines
or theories of
statecraft... New Zealanders do not take great interest in constitutional
The New Zealand public would thus not appear to be receptive of drastic
constitutional change without the practical need for change. As a result,
following the lead of Canada would be highly unlikely. Since I have argued for a
lack of said need earlier
in this paper, I do not propose to pursue this
argument and the Canadian example further.
Alternate conclusions can be drawn from the observations in this essay. The
first is that there will always be constitutional actors
such as Sir Robert
Muldoon who seek to tailor the system for personal gain. Just like a deadbolt
can only slow a willing and cunning
burglar down, checks and balances in
constitutions can only serve to make it slightly harder for a constitutional
actor to abuse
his power. It is the goal of constitutions to kerb that ability.
The more deadbolts, the less likely a constitutional burglar will
written constitution would surely satisfy this goal better than an unwritten
constitution. Thus, in light of the uncertainty
of our informality, New Zealand
should favour a precautionary approach and adopt a written constitution, so that
if a wayward constitutional
actor does attempt to abuse the system, the
repercussions of that abuse will be minimal.
But the superior view, in my opinion, is that New Zealand does not require
this extra constitutional deadbolt. It is safe to draw
72 Constitutional Arrangements Committee, Inquiry to Review New Zealand’s Existing
Constitutional Arrangements  AJHR I.24A, Para 26.
73 See generally Joseph, above n 1, Para 5.5.4.
examples in Part A of this paper that constitutions are highly reflective of their circumstances. Thus, whatever shape New Zealand’s constitution does take, it will inevitably be one that is unique and tailored to our needs. Indeterminacy and indistinctiveness contain sufficient constitutional flexibility to provide a hefty deadbolt in the event of constitutional burglary. So long as we remain democratic, any such attempts will be promptly dispatched. For a nation bursting with pragmatism, perhaps a written constitution is not for New Zealand – our unique unwritten variety is happily doing its job.