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Mereu, Nick --- "A Written Constitution for New Zealand?" [2009] NZLawStuJl 11; (2009) 2 NZLSJ 217

Last Updated: 14 January 2013

A WRITTEN CONSTITUTION FOR NEW ZEALAND?

NICK MEREU^*

Introduction

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” constitution. Pointing to the fact that written constitutions are globally the contemporary default setting I then ask if, and why, they are superior to their unwritten counterparts.

A brief outline of New Zealand’s constitution ensues. Here, I ask why this country has remained relatively unaffected by a constitutional setup that 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 itself, regardless of semblance.

In the 17^th century, Thomas Hobbes observed that the nature of man is comprised of three characteristics giving rise to quarrel amongst men: competition, 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 of this social contract involved individuals relinquishing their right to self-govern; instead, an “assembly of men” would determine the direction of society.⁴

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 be illegal.⁵

² Thomas Hobbes Leviathan (1651), Ch 13.

³ Ibid, Ch 13.

^{4 Ibid, Ch 18.}

⁵ Case of Proclamations (1611) 12 Co Rep 74.

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 and 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 – in order to protect fundamental civil and political rights from interference by executive action.

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 evident: “government without a constitution is power without right.”⁹

(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 categorisation by 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 cry from the spectrum of manifestations a constitution can take in practice.

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 Representatives.¹¹

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 common 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 and indistinct 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 Parliament.¹³

Deducing from this useful definition, we can assume that a written constitution is an entrenched document containing a hierarchy of all the 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 of

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 18^th 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 Commandments seems 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 constitutionalism.

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 constitutions 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 to the 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 constitutions.¹⁷

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 power in the newfound executive, the tyranny of authoritarianism emerged. On the African continent to this day, there has been at most incremental progress in certain countries towards constitutionalism and democracy in general.

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 an:

informally organised framework of rules that establish and empower the three branches of government... define their functions, composition and relationships inter se, and provide for the rights and duties of citizens.¹⁹

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 majority could 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 legislation, international 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 do

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 immoral.

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 issue. 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 laws

²⁷ Dicey, Introduction to the study of the Law of the Constitution (8^th ed., 1915), p 41.

^{28 See below, n 29 and n 50.}

²⁹ See Fitzgerald v Muldoon [1976] 2 NZLR 615.

^{30 See below, n 50.}

³¹Halsbury’s Laws of England Volume 8(2) (4^th 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 states.³²

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 remedies, despite not technically having any legal power to do so.³⁴

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 liable.

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 legislative) action.

³² Ibid, Para 24.

³³ A W Bradley and KD Ewing Constitutional and Administrative Law (12^th 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 [1765] EWHC J98; (1765) 19 St Tr 1030; Ch 6.

(b) Israel

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 change.³⁷

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 administrative 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 provides:

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 necessary.

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 Basic Laws.

The Israeli Courts have thus used their interpretive powers liberally in order to give Israeli constitutional laws supremacy. Despite this special 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 Israel’s compliance with the International Covenant on Civil and Political Rights. The most recent of these reports, presented to the General 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 in the Occupied Palestinian Territory. Addressing the full range of those situations is imperative, not only to secure compliance by Israel with its international obligations.⁴⁴

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 quis

⁴¹ Aharon Barak “Human Rights in Israel” (2006) 39(2) Isr. L. Rev. p 18.

^{42 United Mizrachi Bank v Migdal Agricultural Cooperative [1995] Isr SC 49(4) 221.}

⁴³ Aharon Barak, above n 41.

^{44 Report available at http://www.ohchr.org/EN/Countries/MENARegion/}

Pages/ILIndex.aspx.

^{45 Martin Asser “Israel ‘using psychological torture’” last updated 1 April 2008, available}

at http://news.bbc.co.uk/2/hi/middle_east/7345025.stm.

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 of the 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 the rule of law for the people of Israel. What can we possibly conclude from this?

In response to suggestions by Mai Chen and Sir Geoffrey Palmer that a supreme constitution for New Zealand is likely in the near future, Solicitor Thomas 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 Hand:

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 it.⁴⁹

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 in democracy 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 would be 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 the judiciary.

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 check on

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 Palmer:

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 immediately form a government and take responsibility for the measures. In the event, a grave situation was narrowly averted – through convention 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 New

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] [1994] 3 NZLR 667.}

⁵³ See the Government White Paper: A Bill of Rights for New Zealand [1985] AJHR A.6.

^{54 See Brown v A-G [2003] 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 assuaged.

(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 Grey.⁵⁶

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 convention.

In addition, I note that these are but two incidents in 170 years of constitutional history – an enviable record for any democracy. Indeed, the 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 Victoria”.⁵⁷

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 rise.

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 – their 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 be rewritten altogether?

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 seem to defeat the entire purpose of formulating a written constitution.

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 written constitution.⁶²

⁶⁰ Hoani Te Heuheu Tukino v Aotea District Maori Land Board [1941] AC 308 (PC).

^{61 NZ Maori Council v A-G [1994] 1 NZLR 513, p 517 (PC), NZ Maori Council v A-G}

[1987] 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 powers

(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. Provided 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 desired.

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 the head of state as a dire concern and the major reason for avoidance of change.

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, at 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 constitutional abuse than from any democratically elected parliamentary executive.

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 determined by 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 constitution.

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. Finally, there could be widespread public recognition that our constitution is in crisis.

(a) Republicanism

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. Former 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 which severed judicial ties with the Privy Council. Specifically, the Act noted as its purpose to “recognise that New Zealand is an independent nation 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 Zealand, 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 Zealand public.

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 28.

(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 republican move.

(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 enabled “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 parts,” namely “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 scratch. Indeed, this is precisely what occurred in Canada – an experience that is the lifeblood of proponents for change in New Zealand.

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 approach 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 matters.⁷³

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.

Conclusion

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 succeed. A 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 from the

⁷² Constitutional Arrangements Committee, Inquiry to Review New Zealand’s Existing

^{Constitutional Arrangements [2005] 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.