Skip to make comment
Send to a friend
22 October 2012
written consitution for NZ?
spent 11 wonderful years in Dunedin before moving over to
Brisbane, Australia eight years ago.
In both places I worked in a university law school, and
one of the subjects I taught (and teach) is public or
constitutional law. Now
New Zealand currently has an unwritten constitution, where
Australia has a written constitution.
does that mean? It
means that in New Zealand there is no one, single,
over-arching legal document that, say, allocates power between
the branches of government or puts a limit on what the elected
Parliament can do. Australia
does have that.
course there are written legal texts that matter in New
Zealand. But the
key point is that all such laws are ultimately able to be
changed or removed by the elected legislature.
In lawyers’ jargon, New Zealand has ‘parliamentary
sovereignty’. Australia does not, though of all the
world’s written constitutions Australia is the closest to
parliamentary sovereignty of any other going.
That’s because the Australian written Constitution
forswears an entrenched bill of rights and leaves almost
everything to elected legislatures.
(Go and have a read some time.
You’ll see repeated reference to ‘until the
Parliament otherwise provides’.)
I am a big time partisan of democratic decision-making.
I think all the key social policy decisions, the
line-drawing choices related to abortion, same-sex marriage,
how to deal with those claiming to be refugees, where tobacco
companies can advertise, and myriad other such debatable,
highly disputed issues, ought to be made by the elected
legislature, NOT by judges.
the fact is that in most places with written constitutions,
these calls (in whole or in part) are made by unelected
judges. Even in
Australia, where things are as democratically good as they get
with a written constitution, judges have used the written
constitution, decades after it was brought into being, to
‘discover’ that some of the words of that text mean
something completely and totally different to what any of the
drafters, framers or ratifiers intended or would have agreed
to at the time it was adopted.
therein lies the difficulty with written constitutions.
People fight over every word, every comma, every phrase
when one is being drafted.
But once one is in place, what that document actually
means will be authoritatively declared by the top judges, and
no one else. And here’s the thing.
In Canada and in Europe it is virtually unanimous
orthodoxy that the words of the Constitution will be
interpreted as a ‘living tree’ – meaning that the words
can stay the same but their meaning can change over time.
this ‘living tree’ interpretive approach is the position
of about half the US Supreme Court and, these days, over half
of the Justices of Australia’s top court.
what that means is that judges, and no one else but the
judges, can update the written Constitution. Every single
other person in the country is locked in, because that is what
a written constitution does, it locks things in and takes them
out of the hands of the elected parliament.
So any move to a written constitution is overwhelmingly
likely to enervate democratic decision-making.
It will move some important decision-making out of the
hands of the elected legislature and into the hands of the
judiciary as they read through the runes of the
frozen-virtually-in-stone new written constitution’s
a little more simply, written constitutions take away from
why I’m against, strongly against, any move to written
constitution for New Zealand.
Don’t forget, without a written constitution and
relying solely on the elected legislature New Zealand was the
first country on earth to grant women the vote; it gave Maori
men the vote back in the 1860s; it brought in social welfare
laws for workers before just about anywhere else; it
completely overhauled its economy when it was breaking at the
seams in the 1980s. New
Zealand’s record on just about any criterion going looks
better than those of places with written constitutions.
the problem with a written constitution doesn’t stop there.
It gets worse, and a little more complicated too,
because the scope for those interpreting a written
constitution at the point-of-application (meaning the judges)
to impose results that they happen to like on the rest of us
depends in part on how specific and detailed the legal text
happens to be. So
interpreting a Tax Act, say, involves giving meaning to
something that is mightily detailed and though there will
always be areas of doubt and uncertainty that the judge will
have to resolve, they will be few and far between.
written constitutions are not like Tax Acts.
They do not deal in detail and specifics.
They tend to be short.
If they have an entrenched Bill of Rights they deal in
moral abstractions that are vague, amorphous and begging to be
filled with content NOT by you and me and the voters but by
the judges of the Canadian Supreme Court or the US Supreme
Court (who might say the words now, all of a sudden, demand
same-sex marriage (as in Canada) or almost no limits on the
funding of elections (as in the US) or just about anything
here’s the thing. The
exact same thing can be said of the Maori Party’s push to
have a written constitution that incorporates the Treaty of
latter has little content in its few short paragraphs.
Talk of its ‘principles’ inherently involves a lot
of ‘stuffing it full of latter day content that no one at
the time imagined or intended’.
And if, as is overwhelmingly likely, the top New
Zealand judges adopt the same sort of ‘living tree’
interpretive approach that we see today in Canada, Europe, and
amongst most or many of the top judges in the US and Austalia,
then there is absolutely no predicting in advance what may be
imposed on Kiwis some time down the road.
Remember, the words can stay exactly the same but their
imputed meaning can change and alter as the top judges see
you know what? The
elected parliament won’t be able to do anything about it.
That’s the point of a written constitution.
It trumps parliament.
It overrides parliamentary sovereignty.
It enervates democracy.
that may be a good thing if you reckon you can get a more
favourable deal out of a committee of ex-lawyer judges in
Wellington than you can out of the democratic process.
But for democrats like me it is an appalling prospect.
don’t forget. It’s
not as if New
Zealanders will be offered an Australian-style written
constitution that largely forswears amorphous, content-free
it’s not as if Kiwis can be guaranteed an approach to
interpreting this document that will be guided by the
intentions of those drafting it or the understandings of those
who agreed to its adoption.
Heck, even with New Zealand’s statutory bill of
rights the top Kiwi judges almost immediately proclaimed that
its meaning would be independent of the understandings of
those who drafted it and enacted it.
And in Australia they purport to ‘find’ things in
the text that have supposedly (and implausibly) lain dormant
for 80 or 90 years.
I think you can bet your very last dollar that should you go
down the road of a written constitution its meaning will in
fact be determined by a process that essentially involves the
top judges consulting their own moral sensibilities, perhaps
consulting what is going on overseas in other jurisdictions,
and that involves a whole heap of so-called ‘balancing’
and deciding on what they, the judges, consider to be
face it. Go down
this road and you sell away some of New Zealand’s wonderful
think it would be a disaster for New Zealand to move to a
written constitution of the sort almost certain to be offered.
And I would run a mile from incorporating or
entrenching the Treaty into any such instrument, not least
because overwhelmingly no one knows what it means when applied
to any specific issue. So
all you will
be buying is the views of the top judges, instead of your own,
the voters. That’s
not a trade I would ever make.
to finish with a last bit of bluntness, I’m not overly sure
that Mr. Key is all that reliable on these sort of issues.
He seems to me, from over here across the Tasman, to be
a man who courts popularity rather standing up for what will
benefit New Zealand in the long term.
One of the most important issues in my mind for New
Zealand had always been to rid the country of one of the
world’s worst voting systems, MMP.
Mr Key by and large stayed out of that debate making a
few perfunctory anti comments but doing little else.
if he thought MMP was holding back New Zealand’s
ability to prosper in the modern world, as I do, then he
should have taken the risk of getting actively involved.
The result might have been different.
(And I do still worry about New Zealand’s prospects
under this lousy voting system that puts the major political
parties at the mercy of small ones that garner barely 1 in 20
of the votes but who can use their ‘kingmaker’ status to
demand all sort of things – even a proposal to look at
moving to a written constitution that locks in the Treaty.)
in my opinion, expressed from over here in Australia, this is
a terrible idea. It
needs to be knocked back.
And I have my fingers crossed that you can all achieved
Skip to top |
Skip to make comment |
Send to a friend
To comment go to
letters to editor
Skip to top |