New Zealand needs to decide on a formal Constitution

Former Prime Minister Sir Geoffrey Palmer has written about his desire as a constitutional lawyer to see New Zealand adopt a formal constitution. And as a citizen concerned about an encroaching surveillance state, abuses of New Zealand and international human rights laws and an increasingly unstable world, I can understand his reasoning – albeit for different reasons to the ones he mentioned.

The current constitutional legal framework is a hodge podge of several different Acts of Parliament. Whilst all are relevant, several have provisions that are old or unwieldy in use. There is also no clear cut set of checks and balances to stop these Acts being abused, amended unnecessarily or even (however unlikely it might seem) revoked. Currently there is a risk that if New Zealand has a referendum on the matter, it will not be binding and that therefore Members of Parliament may elect to ignore the will of the public.

I have worked out a step by step process that I believe needs to be followed in establishing a constitution:

  1. Announce a binding referendum whose wording needs to be simple, such as: Should New Zealand adopt a formal constitution? YES/NO.
  2. Establish a working group to guide the referendum and explore what to do based on different outcomes – if the result is YES, who takes charge and how to involve the people of New Zealand; if the result is NO, will legislative changes be necessary to reflect the outcome and if so, what?
  3. In the period between announcing and holding the referendum, an intensive effort utilizing radio, internet, television and newspaper highlighting the referendum; drop in sessions at high schools and tertiary institutions; public meetings and so forth.
  4. The referendum is held
  5. The result announced and acted on (if the vote is YES, announce a timetable within weeks for the next step; if the vote is NO, make any legislative changes recommended and stop)
  6. ONLY if the vote is YES: Prepare a draft constitution
  7. ONLY if the vote is YES: Submit to public for consultation
  8. ONLY if the vote is YES: Prepare amended version based on public submissions
  9. ONLY if the vote is YES: Public vote on final version

Any constitution will need to deal with the following issues among others:

  • Where does the Treaty of Waitangi fit into New Zealand law
  • Impeachment proceedings for public servants who endanger or bring their office into disrepute
  • Codifying the basic rights of New Zealanders
  • Establishing minimum requirements for non codified laws to be repealed/amended

I personally believe New Zealand should adopt a formal constitution. However I would want to know that any Constitution of New Zealand comes about because New Zealanders had a binding referendum in which they voted for it. It does not need to be a fundamentally entrenched one like the United States, where politicians and private citizens alike are starting to wish there was more flexibility in the system. But I do not believe the current hodge podge arrangement with its inadequate checks and balances is the answer.


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