Legal Beagle by Graeme Edgeler


Geoffrey Palmer has decided to write a constitution

Last year, the Law Foundation made a $10,000 research grant to former Prime Minister Sir Geoffrey Palmer to write about a New Zealand Constitution. But, after more than one recent government investigation ended in only recommendations to keep discussion alive, he’s going a step further: with Andrew Butler, a partner at law firm Russell McVeagh, he’s working on a draft constitution for Aotearoa New Zealand.

At a public talk at Victoria University Law School last week, Sir Geoffrey outlined his progress. The draft is still unfinished, but the intention is to publish a book (written to be read by the general public, not lawyers or policy wonks) containing the first draft of a constitution, with commentary.

It’s a rather ambitious task.  They intend to then set up a website where people can make comment, before expressing their final view on what should be in The Constitution of Aotearoa New Zealand next year.

After Sir Geoffrey’s talk was announced, and I’d RSVPed, I thought about how one would go about writing a New Zealand Constitution in the current environment (ie without some constitutional crisis or political change necessitating it). My thought was to have a bunch of legal experts draft a no-change constitution: a constitution all written in one place, but with no differences from the current law not otherwise inherent in the fact it’s a written constitution. And then, when they’re all agreed that it makes no changes, every else gets to argue about what we should add to it, or change in it, so that we get what we want, while being less likely to stuff things up.

Well, Sir Geoffrey is a little more ambitious. He’s made changes to our constitutional structure in the past, and would apparently like to do it again.

He didn’t announce many specifics, but the proposal is for a supreme law constitution. His current view is that the Courts should be able to strike down legislation that is inconsistent with the constitution, but that Parliament could vote to override a court decision striking down a law with a 75% supermajority (which is the same level he suggests for amendments to the constitution, consistent with the bits of the Electoral Act already entrenched).

It’s apparently very much a work in progress, and the speech was light on specifics. However, we may be able to glean some insight into where his proposal will lead from the description given with Law Foundation grant:

It is intended to write it from the position of New Zealand as a republic, will provide a higher law constitution with increased power to the courts and a number of other more minor reforms, but at its core it aims to preserve the essence of our Westminster style democracy, strengthen the rule of law, protect property rights and guard against our democratic freedoms being whittled away gradually. It is innovative in providing constitutional protection for institutions that maintain transparency and integrity in government.

The bit about New Zealand being a republic was unmentioned in the speech, and I followed up whether that was still the intention. I’m told I’ll have to wait for an answer to that one; my guess, based on nothing in particular, is that it may be there as an option, but might not be intergral - given the option, I reckon Palmer would favour a written Constitution, even without abandoning the Monarchy. I suspect a right to property will be there, and based on the speech, I think the intention to enshrine democracy is likely to extend beyond voting in national elections, to include a right to local democracy as well, perhaps brought on in part by the Government’s actions in Canterbury.

Later this year isn’t that long to wait, but Sir Geoffrey did read out an outline of what was currently (or at least, recently, as he noted it was already out of date).

  • Preamble
  • The State
  • The Head of State
  • The Government
  • Parliament and the Legislature
  • The Judiciary
  • Law-Making
  • Finance and Taxation
  • International Relations
  • Defence and Security
  • The Treaty of Waitangi
  • The Bill of Rights
  • Other State Institutions
  • Integrity and Transparency
  • Adoption and Amendment
  • Emergencies and suspension of parts of the Constitution
  • Transitional provisions

    Though there have been several attempts to get a conversation started, and this one, firmly intending to have an actual draft constitution, may be more likely than most to have some continuing effect. It’s always useful to have something sitting around, if we suddenly find we need it it a hurry (it seems to have worked for the Rogernomes). Sir Geoffrey isn’t expecting change soon. He suggests the adoption of a Constitution might not happen for 20 years, which, if we are to have one, seems like a reasonable time scale, given there isn’t a pressing need, and he realises he’s going to have to convince ordinary New Zealanders, not politicians. 

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