11 March 2013

Last Friday Prof John Burrows QC addressed a joint meeting of the Institute of Governance and Policy Studies and the Institute of Public Administration (NZ).  He spoke of the review being undertaken by the Constitutional Advisory Panel, which the Deputy Prime Minister has described as “…deliberately wide-ranging and will include matters such as the size of Parliament, the length of the electoral term, Maori representation, the role of the Treaty of Waitangi and whether New Zealand needs a written constitution…”  Prof Burrows as co-chair of CAP is encouraging submissions which could help shape its report to the Government, due by July.

Prof Burrows to a large degree summarised constitutional issues  published on the CAP website in a booklet titled “ New Zealand’s constitution, the conversation so far”.

The outcome of constitutions can never be assured.  Any process involves basing  tomorrow’s rules on today’s understandings.  Inevitably problems emerge which were not anticipated when the constitution was drafted. And setting rules ultimately involves judges interpreting what they mean.

There is no self-evidently superior constitutional arrangement.  However the Scottish Government, anticipating a Yes vote in the 2014 referendum, has published its proposals for a written constitution. It has set out a programme for a constitutional convention modelled on measures adopted in Iceland and which may lead to the enactment of an Icelandic constitution over the next few months.

An article in yesterday’s Sydney Morning Herald (by Chris Berg, a research fellow of the Institute of Public Affairs) suggests that a written constitution, as in Australia, doesn’t resolve problems.

Berg suggests that uncertainty is illustrated by two decisions of the High Court of Australia last week, upholding laws that “… would be quickly slapped down in US courts as laughably unconstitutional…. The reason is simple. The First Amendment was written more than two centuries ago. Modern bills of rights tend to increase government power, rather than limit it. This is because our human rights advocates believe that to protect human rights we simply have to transpose United Nations treaties onto Australian law…”

“The distinction is important. America’s Bill of Rights starts bluntly: ”Congress shall make no law” restraining speech or religion. It’s all about protecting people from their government..”  By contrast,  UN conventions expect governments to impose laws, to take control ….

But in a democratic state,  if parliament is supreme, the will of parliament must be the majority view of its members. Is any alternative not a constraint on parliamentary supremacy?

Should a bill of rights give unelected and unaccountable judges the ability to dictate public policy?

The Berg comments that “…A century of High Court cases has taken our (Australian) constitution in directions that would shock the founders. We no longer have any meaningful division of power between state and federal governments. The court has ”discovered” rights in the constitution that are ”implied” but not written down. Any conservative who believes we can restore a strict interpretation of the constitution is bizarrely optimistic…”

The CAP is unlikely to find an easy solution for New Zealand through the constitutional conundrum.  It seems predictable that not only here be dragons, but also the prospect of taniwha.