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Professor James Allan

A written constitution for NZ?

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I 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.

What 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.

Of 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’.)

Now 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.

But 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.

And 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.

Heck, 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.

And 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 provisions.

Put a little more simply, written constitutions take away from democracy.  That’s 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.

But 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.

But 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 else).

And 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 Waitangi.  The 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 fit.

And 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.

Now 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.

And don’t forget.  It’s not as if  New Zealanders will be offered an Australian-style written constitution that largely forswears amorphous, content-free abstractions.  And 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.

Look, 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 ‘reasonable’.

Let’s face it.  Go down this road and you sell away some of New Zealand’s wonderful democratic decision-making.

I 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.

And 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.

But 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.)

So 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 that outcome.