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May 19, 2017 | by  | in Interview | [ssba]

Interview with Sir Geoffrey Palmer

Sir Geoffrey Palmer is an esteemed constitutional lawyer and was Prime Minister of New Zealand from 1989 until September 1990. He also studied at VUW a little while ago. Palmer released A Constitution for Aotearoa New Zealand, co-authored with Andrew Butler, in 2016 which aims to “set out in an accessible form and a single document the fundamental rules and principles under which New Zealand is to be governed.” We spoke to him about his book and his vision of constitutional change — this interview formed the basis for the feature piece To Be Brave and Imaginative: Transforming our Constitution.


A Constitution for Aotearoa NZ, written with Andrew Butler, proposes a written, codified constitution for New Zealand and seeks to provide, in an accessible form, the fundamental rules and principles under which New Zealand is to be governed. Can you tell us a bit more about the research process you undertook formulating this approach?

I’ve been a constitutional lawyer for about 50 years now, and this has been a long journey. I was a constitutional lawyer before I went into politics. When I went into politics my knowledge of these matters was enhanced considerably — I think being in politics is one of the best educations you can have about your own country.

When I was in parliament I did a lot of constitutional reform — the Constitution Act 1986, the New Zealand Bill of Rights Act 1990, creating the Law Commission, and dealing with the Treaty of Waitangi and getting it to date back to 1840 so the historical grievances could be looked at. So I am very interested in these difficulties. I taught comparative constitutional law in the United States frequently, over a long period of years, and I have taught public law here. One of the difficulties you have teaching New Zealand students about public law in New Zealand is about how the constitution works. It’s not like anyone else’s constitution. There are only three countries in the world that have a constitution like ours — the United Kingdom, Israel, and ourselves. The difficulties with Brexit, in recent times, demonstrate that the British even have difficulty understanding their own constitution.

I think that in a democracy it’s really important to have what the rules are clear, not depending on custom or traditional understandings, but set out in one document, so that you can actually see what it is: what comprises the elements of the government, who’s the head of state, who is the cabinet and the prime minister, what is the parliament, what is the judiciary. Those of are the elements of a constitutional state everywhere.

But in New Zealand it’s really a constitution that lurches about depending on political developments and it evolves constantly before your eyes. I don’t think that’s the securest environment for freedom in a world which has Trump and Brexit.


On the point about it developing before your eyes, how was your desire for a constitution informed by your time in government?

A great deal. One of the things you realise if you’re a minister is how fragile democracy is, and how buffeted a small country can be by the winds of change internationally. It’s really important in a small country like ours to have a secure democratic framework which can’t be altered; well, can be altered, but needs to be done deliberately and clearly and openly and transparently. We have a situation where there are risks if these political tendencies in other countries come here. They haven’t come here yet. The thing I like most about New Zealand is that neither Bill English or Andrew Little look anything like President Trump.


A Constitution for Aotearoa NZ is concerned with the public’s access to constitutional principles and practice, and states that “an interested person cannot find a clear and coherent statement of the whole framework within which political decisions are made.” The text argues that New Zealand’s present constitution is “dangerously incomplete, obscure, fragmentary, and far too flexible.” How would a written constitution, as you’ve envisaged, find a balance and allow for a necessary level of flexibility?

I think it is important to have a high level of flexibility, because you have to be able to change in accordance with circumstances. New Zealand values being a nation where you can change relatively quickly. And that it is important. Two of the countries that we compare ourselves to have very inflexible constitutions — Australia and the United States. It’s extremely difficult to change those constitutions in both those countries. We don’t propose that. We think that it is important to review the constitution every ten years and we’ve set up, in our draft constitution, a constitution commission to do that. We think that it is very important that if the sort of constitution we’re promoting is adopted, it is has to be adopted via referendum. It has to have democratic legitimacy.


What do you envisage those constitutional review processes looking like?

They’d have to look at difficulties that are being encountered with the constitution, they would have to take public submissions on them, they would have to conduct consultations, and they would have to make recommendations on what changes should be made.

[…] The biggest issue of all is what do you put in and what do you leave out. How many things do you put in the constitution? And how many things do you just leave to the ordinary political processes?

We’ve never had a superior law constitution in New Zealand. Well we have in a sense, the 1852 Constitution Act we got from the UK was a superior law constitution, in the sense that if New Zealand adopted legislative measures that were incompatible with it, they could be struck down by the courts. People have forgotten about that, and that was happening in the 1920s. But of course as that constitution was whittled away to almost nothing, and then abolished in 1986, we’ve not had that. I think that one of the things you have to remember about New Zealand is that its colonial origins sit fairly heavily upon it still. We inherited this system, it gradually changed, developments occurred, but actually it owes its structure, still, to the Constitution Act of 1852 in many ways.

We’ve never considered it from first principles, about how you would design and operate a modern democracy. We haven’t ever considered from first principles. We’ve made some big changes — we’ve had MMP, and we got rid of appeals to the Privy Council. Big changes, but one-off changes — never considering the whole organic structure.


Given what you said about the foundation and the Constitution Act of 1852, do you see the new constitution as a step toward post-colonialism?

Yes, I do see it that way. I see it as an assertion of New Zealand independence, of its nationhood, of its confidence in itself, of its true commitment to democratic principles.


The current New Zealand constitution is an unwritten one, in the sense that it consists of a range of rules, some legally binding, others not. It is formed by fragments of both NZ and English statutes; conventions, letters patent and manuals; and common law (judge made) principles. Is your envisaged constitution one which simply codifies the existing elements of New Zealand’s unwritten constitution, or does it seek to be more transformative?

It does seek to be more transformative. It has a lot of particular changes in it which are new — particularly in the safeguards section. There are changes to the official information regime. There are restrictions on the use of urgency. There are all sorts of individual changes: four year term rather than a three year term; an element of judicial review to see that things are compatible with its statutes past and compatible with the constitution itself. At the moment, our Bill of Rights is not enforceable against the parliament. They can override it and they do and they have done in 37 occasions in the 25 years that we’ve had the Bill of Rights.

There are some quite transforming elements in it, but it is also a pretty conservative document in the sense that it tries to adhere to a better performing status quo where the accountability is sharpened, where there is more accountability and it can be seeded home, where there is greater clarity about who can do what to whom, about where the public power resides and who has it. Because I think in a country where there are so many different ethnicities now, many people weren’t even born here who live here. You can’t rely on traditional understandings. I remember they considered this way back in the early ’50s about whether they should have a written constitution and they said we’re British, we don’t need it. New Zealand doesn’t look very British to me. Anybody who comes here ought to be able to pick it up and read it and sort of figure out what the place is about. One of the problems is that we don’t seem to know what it’s about ourselves. It’s sort of an incompletely theorised agreement, New Zealand.


It doesn’t look like Britain here, we’re not English, and a lot more ethnicities are part of New Zealand’s make up, so how difficult is it to find this national—   

Well it’s pretty difficult! It’s a bit of a search. The preamble to the draft in the book is an effort to try and characterise it. We’ve got hundreds of submissions from the public about it. We’ve talked to 2500 people all round New Zealand since the book’s been published. We’ve put it into every high school in New Zealand so that the social studies teachers might be able to find out what their students think of it. I feel that when we produce our new version early next year, that we will have made some progress along this front. And we’re not hurrying this, we don’t want it to germinate before the general election.

You can’t hurry constitutional change. It’s a show-stopping subject, because if you go down Lambton or Queen Street and talk about what’s in the constitution no one will know because they can’t find it and they never think of it — it’s not something they ever think of. You have to try and sensitise people to what a constitution is and then ask whether what we have is sufficient. Now, the difficulty, I think, is that the education system does not seem to teach students how we are governed. I really don’t know why that is so. I’ve been thinking about this ever since I published the first edition of Unbridled Power in 1979. People don’t know how the system of government works, they have difficulty finding it out, they’re busy, and there’s no way… really they have to spend a lot of time and effort. If they had to read all the documents that comprise the NZ constitution they’d go to sleep rather than read them. A constitution shouldn’t be the property of some elite who knows what it is, it should belong to the people because we know that power comes from the people and that’s its only legitimate source.


I feel like you’ve been answering this question a lot, but just to reframe it perhaps into something that you were talking about before, in the transformative elements of your constitution regarding the OIA regime and urgency particularly, I think, why then would it be necessary or appropriate for NZ to develop a written constitution? I guess I’m directing—

You could change urgency without that. But the problem is that we make individual changes a lot, but we never look at the whole. You can’t discuss the constitution by having a good picture of it without relating all the elements of the system to the others, because it has to be a document that is in balance. There have to be balances between the head of state, the executive and cabinet, the parliament, and the judiciary. These are the elements that exercise public power in New Zealand and that public power has to be limited, otherwise you get an autocracy.


I’m just thinking to the first chapter of A Constitution for Aotearoa NZ where you mention the 2013 New Zealand Public Health and Disability Amendment Act.

Yes, the Atkinson case. That was a pretty disgraceful performance. First of all, litigants went to the Human Rights Tribunal and secured a judgment [for] the carers of disabled people. They prevailed there, they prevailed in the High Court, they prevailed in the Court of Appeal. The government introduced legislation under urgency to reverse the decision. There were no select committee submissions on it like there are on almost every bill that goes into the NZ parliament. There was no warning that this was going to happen. It was made a confidence measure and these rights were taken away, that the law had provided, without consultation, without scrutiny, and without examination, and it was made a confidence measure by the government so they could secure the numbers to pass it. Now that seems to me a travesty of democracy.


So the proposed constitution would prevent that?

It would prevent that completely.


You’ve talked about submissions, and high schools, and trying to involve the public, but for moving forward to the new version, what other public input are you seeking?

We’ve got a group at Massey University who are involved in helping us consult with youth. I think one of the most difficult things here is to engage people on topics they don’t know a lot about. The difficulty that they have is relating it to their everyday lives. How does a constitution affect you? Does it put bread on the table? Does it help you get a job? Does it solve social problems? Well people say, “well I can’t see how this relates to me.” Well, let me just say this: if you were a carer in the Atkinson case you could see how it would relate to you. And when people suffer difficulties of that sort they get concerned about it, but it doesn’t register with the public as a whole.

Democracy is about individual decisions as well as electoral decisions. People probably don’t vote on the basis of what the result in the Atkinson case was. But it nevertheless shouldn’t have been done. Elections don’t solve everything and you have to have protections in the system to ensure that there are guarantees that can be delivered to people so that they are not unfairly treated. The essence of this project is to improve the standard of governance; it can’t produce perfection. You shouldn’t oversell it, we’re not going to get utopia through this, but we should get a better system of government that is more principled and more effective, where there are better checks and balances than we have now.


Would some of the public consultation involve talking to iwi and hapū?

Yes. We’re starting to do consultations now with various groups. We’re only two people you know. We’re going to have to make a series of recommendations in our next book about what happens next, that’s pretty important. None of this could be carried through by private individuals. It has to ultimately get into the parliament in some way. But I don’t want to encourage that until we’ve got a final product that we think is worthy of consideration. This book isn’t that product.

We set this draft constitution out because there have been two inquiries into the New Zealand constitution in recent times. There was one by Select Committee in 2005, it was chaired by Peter Dunne. No changes occurred as a result of that. There was another run by Māori Party. The chairs of that were Professor John Burrows and Tipene O’Regan and that reported in 2013. No changes resulted from that. We thought that one of the difficulties of why change wasn’t happening was that there was no model out there that people could look at to see what it was that we were talking about. So we drafted one and it will have to be refined and modified and clarified and altered as of a result of the submissions we’ve had, and we’ve had a lot of them.


There have been attempts in the past, most notably in the Labour government’s 1985 White Paper proposal on the Bill of Rights, to give the Treaty more legal recognition. Many Māori reacted negatively to that proposal, one of the criticisms being that incorporation of the Treaty text could open the way to amendments and the erosion of the Treaty and its obligations. What discussions have you had with  iwi and hapū about—

We haven’t had any discussion with them, though I read the Moana Jackson report at great length, which is a very interesting report. We cite that in the book. We explain that there will need to be very adequate and much more extensive consultation with Māori than has taken place in the past. The sort of consultation that was recommended by the 1986 Royal Commission on the Electoral System, but that was never done. It needs to be done. There is in the public submissions received in the public meetings we’ve had, enormous resistance to the Treaty being part of this constitution. Quite a lot of submission are saying we’re promoting a system of apartheid by placing the Treaty in the constitution. That seems to me a fundamental misunderstanding of New Zealand history and of the position of indigenous peoples generally, but it is, by a small section of the community, a widely held view. Some of the submission we’ve had on it are quite worrying in that respect.


You said you read Matike Mai Aotearoa which was convened by Moana Jackson; what were your thoughts on the report?

I thought it was a really interesting process they’ve been through. It’s very extensive and one admires that. But it did seem to me to be stated at such a high level of generality, because it’s not a completed process, that it was hard for me to quite see in practical terms how it could be operationalised.

And I have also gone through all the submissions from a number of Māori organisations that were made to the 2013 enquiry, and a lot of them were calling for the very thing that we’ve done in this book. By putting the Treaty as part of the constitution, making it enforceable, and ensuring that the text of it cannot be changed by a constitutional amendment.


The proposed constitution specified that the wording of the Treaty could not be amended or changed, but incorporation into legislation could give rise to issues of interpretation?

Yes, of course. We’ve had a lot experience with the Treaty now. It’s been in New Zealand law and various statutes for quite a few years — it might be as many as 30, or 35, statutes where it’s found, in things like the Resource Management Act — and there has been quite a lot of judicial decisions about it. There is a very significant jurisprudence about it now. The mysteries of the Treaty are many fewer than they used to be. What in fact people are very frightened of is rangatiratanga, but actually what that means is Māori should be able to control and have say over their own resources. It doesn’t seem to me to be a particularly controversial idea.


One of the proposals in A Constitution for Aotearoa is for NZ to become a republic, under which a Head of State would be appointed on a free vote in Parliament, which would safeguard the independence and neutrality of the position. How would this interact with ideas of partnership with Māori, as specified in the Treaty?

I’m not sure whether the process of consultation that you would go through before you picked the Head of State might need some more specificity. One of the things that is shown in the public submissions is that the term Head of State, that we’ve picked up from the Samoan constitution, is not a regarded as a very satisfactory one, and quite a lot of the submitters say, is there an effect Māori word for this? That’s a matter we’re looking into. There is, of course, a lot of terrific Māori elements in our system of government. If you look at my son’s book on the Treaty of Waitangi that was published a few years ago, you will see that the executive government spends a great deal of time on Māori issues generally. Much more, until that the book was published, than people knew about. It’s not just a court thing, it is a government thing.


What do you see as the main desired outcome of this constitutional process?

Better government. Very simple.


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