I really like the American constitution. I hope people with an interest in New Zealand made a submission!
Submissions with respect to proposed changes to New Zealand’s constitutional arrangements.
The Constitutional Advisory Panel
Submissions with respect to proposed changes to New Zealand’s constitutional arrangements.
This document is submitted by:
To The Constitutional Advisory Panel
1. These are my submissions with respect to changing New Zealand’s current constitutional arrangements.
2. I shall refer to both the United States and Swiss constitutions as models that New Zealand can look to as credible and highly effective examples of proper and excellent constitutional arrangements.
3. The United States of America first adopted its written constitution in 1787. It is considered “superior” to and trumps other laws. It is entrenched and subject to Judicial Review by their Supreme Court.
4. It is lamentable that more than 220 years later New Zealand still lacks even a proper written constitution. With all due response, an unwritten constitution is no constitution at all and can therefore be no proper accountability to it.
5. The Swiss operate a highly attractive version of “direct democracy” in which an interested population are frequently involved in the democratic processes via referenda.
6. The current model that operates in New Zealand known commonly as “The Crown” is an out-dated relic of the British Monarchy that contains a number of undemocratic and undesirable features.
7. I believe is of the utmost importance to get the fundamentals and the foundations of New Zealand proper, correct and according to the rule of law and according to the principles of democracy.
8. I submit that it is no coincidence that whereas the USA, with its proper constitutional arrangements, flourished into the most powerful and dominant country on the planet in the 20th century whereas New Zealand, with its
non-existent constitutional “arrangements” has floundered.
New Zealand has been unable to keep up with Australia in almost every respect.
Consequently, New Zealand’s best and brightest have for many years voted with
their feet, abandoned the nation they love, with so much going for it, and
immigrated to Australia and other more successful countries.
The Crown and “Parliamentary Sovereignty”
9. New Zealand and the United Kingdom are the only remaining two countries in the world whose Parliament asserts the doctrine known as ‘Parliamentary Sovereignty’.
10. Parliamentary Sovereignty’ provides Parliament with essentially unbridled power. This is fundamentally undemocratic and entirely unacceptable in a country that claims to be a modern democracy.
11. The other last remnant of “Parliamentary Sovereignty” is the source of this doctrine namely the United Kingdom of Great Britain.
12. However, unlike New Zealand, the UK Parliament’s powers are, to some degree, bridled by the existence of an Upper House known as the The House of Lords.
13. New Zealand did have an upper house until the early 1950’s until it was abolished by an [arguably unconstitutional] act of Parliament.
14. Furthermore, the UK Parliament is also now restrained by their participation in the European Union. In particular the UK Parliament may not make laws that are contrary to “The Treaty of the European Union”.
15. New Zealand‘s current constitutional arrangements are uniquely permissive of an entirely unrestrained Parliament who are currently at liberty to pass any law based upon a simple majority.
16. This could include laws that are retrospective, illegal, unfair or unreasonable or laws that set aside fundamental rights or laws that override the rights “affirmed” in The New Zealand Bill of Rights Act 1990 (NZBORA).
17. Section 7 of NZBORA requires that the Solicitor General to provide a report to Parliament where any proposed law seeks to override the rights contained in NZBORA. This mechanism has proved to be entirely insufficient to prevent our “sovereign” Parliament from passing laws that impinge upon the rights of New Zealanders with multiple laws every year falling into that category.
“Unconstitutional” Laws in New Zealand
18. One example of an unconstitutional law that affects every New Zealander and passed by our “sovereign” Parliament is contained in s115 of The Land Transport Act 1998 which allows the NZ Police to stop any vehicle at any time without reasonable cause. This section would appear to conflict with our right to be “secure” against unreasonable search or seizure and our right not to be arbitrarily detained as provided for in sections 21 and 22 of NZBORA.
19. Another example would appear to be The Serious Fraud Office Act 1990. Section 9 requires suspects to answer questions. Section 27 explicitly provides that self- incrimination is no excuse for not answering questions. Section 45 makes it a criminal offence not to answer questions for which criminal conviction and imprisonment may follow. This would appear to conflict with s23(4) of NZBORA which provides:
Everyone who is—
(a) arrested; or
(b) detained under any enactment—
for any offence or suspected offence shall have the right to refrain from making any statement and to be informed of that right.
20. These are but two examples of apparently unconstitutional laws passed by New Zealand Parliaments to illustrate the point that this issue is not academic or theoretical in nature but should properly be of genuine concern to all New Zealanders whose rights are increasingly impinged by our unbridled Parliament.
21. The above examples are by no means a comprehensive list. The Solicitor General ought to be able to provide a list of Section 7 reports that have been prepared since 1990 when NZBORA was passed.
22. Several months ago I requested a copy of the s7 report with respect to s115 of The Land Transport Act 1998 by email from the current Solicitor General as I have been unable to locate such a list on the Internet. I have not received a response.
The United States of America Constitution as a model.
23. The United States Constitution is written, is superior law and is subject to Judicial Review by the Supreme Court. The Supreme Court is empowered to strike down any legislation that conflicts with their written Constitution, which includes their Bill of Rights.
24. By contrast the unfettered powers of the New Zealand Government resulting in many undesirable laws may be at least partly responsible for the many New Zealand’s have preferred to live and work in other parts of the world.
25. There is no equivalent provision to s115 in American law. In the United States the Police cannot stop citizens driving along the road without “probable cause”. Any attempt to pass such a law would fail because it is in conflict with their 4th amendment which provides in strong and definite language:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized
26. If an American parliament (congress) were to succeed in passing such a law then the Supreme Court has jurisdiction to review such a law and would be obliged to strike it down.
27. The same applies to the draconian provisions referred to above in The Serious Fraud Act 1990. These appear to be in conflict with the United States fifth amendment which provides:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
28. The powers of judicial review of laws by the Supreme Court is not a novelty or unique to the USA. Canada and Germany are but two other significant examples where their Supreme Court also has such powers.
29. The American constitution is entrenched so Parliament is not at liberty to change it by simple majority. The procedure required for making amendments to their constitution is described below.
In the first step, the proposed Amendment must be supported by
Congress, both House and Senate. The second step requires a
majority of the states ratifying the amendment. Congress determines whether the state legislatures or special state conventions ratify the amendment1
30. It is therefore submitted that the constitutional arrangements of the United States are a worthy role model. In particular, this includes:
a. A written constitution which includes a Bill of Rights;
b. The constitution must be entrenched;
c. The constitution must be superior to other laws;
d. The Supreme Court must have jurisdiction to review laws and if they are found to be inconsistent with the constitution, these must be struck out.
31. It is submitted that these arrangements would serve as a reasonable and effective constraint upon Parliament which would prevent the passing of laws which may be convenient for the purposes of government but which are repugnant to reasonable citizens and which may be repugnant to fundamental principles democracy and indeed repugnant to the rule of law.
The Swiss model – An example of “Direct Democracy”
32. Binding referendums are a central and key feature of the Swiss constitution. In effect, they operate to prevent the government from passing unpopular laws and / or amendments to constitutions.
33 .Binding referendums can be initiated by citizens with relative ease and are routinely conducted many times a year. For example, in 1992 fifteen referenda were held which included, significantly, rejecting the joining of Switzerland to the European Union. For this reason Switzerland is still not a member of the EU.
34. The government does not have a right of veto over citizen initiated referendums which is simply a legal procedure regulated by their constitution.
35. Were such arrangements in place in New Zealand it would seem unlikely that unpopular legislation such as the
“anti-smacking” legislation would
have survived the inevitable citizens initiated referendum that would have
36. Consider the implications of this one law: How many reasonable New Zealanders may consider that the custody of their children is in jeopardy if they were brought before the
Courts for smacking their children and this became a relevant consideration in deciding to immigrate to Australia or elsewhere.
Constitutional arrangements with respect to the Judiciary
37. Having been involved with litigation against the Crown it has become apparent to me that the current constitutional arrangements with respect to the Judiciary are insufficient for justice to be seen to be done.
38. The fundamental problem that arises when a citizen attempts to bring litigation against the Crown is that the Crown gets to be a judge in its own cause.
39. The separation of the three branches of government is supposed to mitigate against this apparent problem under the guise of “Judicial independence”.
40. However, consider that:
the Solicitor General is a member of Parliament appointed by the Prime Minister and serves in the Cabinet;
the members of Cabinet share collective responsibility for their decisions;
The Prime Minister and the other ministers of Cabinet have ministerial responsibilities for various Crown Agencies that may be defendants in litigation brought by citizens.
t is the Solicitor General who has overall responsibility of The Crown Law Office;
it is usually the Crown Law Office that usually represents Crown agencies as Defendants in civil proceedings.
41. Consider also that:
it is the Solicitor General who appoints (and promotes) judges,
42. This means that those who have overall and joint responsibility for Crown Agencies (the cabinet) are in a position to appoint and promote judges who make decisions that are agreeable to them as Defendants.
43. Even without this apparent problem of appointments we would still have the problem that Judges who are paid by and are part of the Crown would still sit in judgment over litigation involving the Crown, which is at least an apparent conflict of interest and at worst an actual conflict of interest.
44. The right to a jury trial in civil cases, as provided for in Defamation cases, would mitigate against this conflict of interest where the defendant is a Crown entity.
45. The practical difficulty to this obvious solution is that the jury pool is in heavy demand for criminal cases (arguably due to over policing). A practical solution would be to allow the civil litigant against the Crown the right of appeal to a jury. This would however be entirely unattractive to the Crown but entirely attractive to citizens who wish to hold Crown Agencies accountable for their actions.
46. In New Zealand Judges enjoy “judicial immunity”. In theory this immunity means Judges may be at liberty to make decisions without any threat of action against them potentially arising from a dissatisfied party.
47. Unfortunately, this also has the effect of making lower Court judges at liberty to make decisions that lack merit, detail, and contrary to established principles of law and in particular make findings of fact that are manifestly incorrect.
48. The appeals process is available in theory to remedy such flawed decisions but higher courts are increasingly reluctant to revisit erroneous findings of fact made by lower judges preferring instead to consider only important and new “points of law”.
49. In practice, lower Courts are making significant errors that the higher Courts are not able or willing to correct.
50. These constitutional flaws with respect to the judiciary result in a Justice system that, too often, is unpredictable and does not deliver justice and there is little that an unsuccessful litigant can do about it.
51.The consequences for such a person can be significant and may account for many of the New Zealanders who elected to live in another country.
52. It is submitted that juries ought to be available to consider the merits of an appeal application and to allow an appeal by jury if they consider it justified.
Constitutional Arrangement with respect to Oaths of Office
53.Democracy, by definition, is government of the people, by the people, for the people.
54.Certain people are required to take an “oath” or else they are unable to accept a position in the employment of the Crown. This includes:
Members of Parliament;
55.These oaths require allegiance to “the Crown” rather than “the people” and, it is submitted, is entirely inapposite to the principles of democracy.
56.Hone Hawawira was an example of a person elected by his people to the parliament and Parliament required him to make an oath swearing his allegiance to “the Crown” rather than his people.
57.The custom of the taking of oaths not only ought to be discontinued but any oaths already in place ought to be rescinded. It is submitted that this is entirely contrary to the principles of democracy.
58.It is submitted that in New Zealand culture oaths ought be not required to occupy positions within the Crown and if they were, such allegiance ought to be to the people of New Zealand and not to the Crown.
59.I am in favour of:
a. a written constitution;
b. the entrenchment of that constitution;
c. the constitution being superior law;
d. the Supreme Court being able to strike down unlawful, unfair, unreasonable or otherwise unconstitutional laws;
e. citizens initiated binding referenda
f. a much lower threshold for allowing referenda;
g. changes to how judicial appointments take place;
h. changes to the appeals process that allows applications for appeal to be heard by a jury and if justified a jury trials
I. the abolishment of oaths of “office” and in particular oaths that pledge allegiance to the “Crown”;
j. the renouncing of existing oaths of office.
60. I would be happy to provide further information if required or make an oral presentation if required.
61.I have not had the opportunity to fully consider the merits of the Waitangi Treaty being incorporated into a New Zealand constitution. However, if I were to have any further involvement in this matter I would like to reserve the right to also give this matter consideration.