Tony Holman: We need a constitution to protect democracy

New Zealand has only one House of Parliament. Many countries have two Houses. Photo / Mark Mitchell

Opinion

• Tony Holman of Northcote Point is a former North Shore City Council member

Over many years there have been sporadic calls for a written constitution for New Zealand, for a different head of state, for a different flag and for better curbs on the virtually unbridled powers of a Government majority (which can be as few as one).

Sir Geoffrey Palmer and Andrew Butler have put out a book about this, A Constitution for Aotearoa/New Zealand. Their central rationale is that New Zealand does not have a basic written constitution setting out the parameters for those who run the country, and enshrining the rights of citizens. Consequently, they argue, our democracy is very fragile.

Almost every country has a written constitution, whereas New Zealand has only 'scraps of legislation' uncodified and largely unintelligible. More dangerous, Parliament (or at least the ruling party) is in complete control and can pass virtually any legislation it likes " and overnight, as it has done quite often.

This is because New Zealand has only one House of Parliament. Many countries have two Houses. The UK has the House of Lords, which cannot stop the legislation, but can hold further debate on proposed legislation and send it back to the Commons with recommendations. The delay allows debate within the public arena and gives time for second thoughts by the Government. (Australia and the US have senates, with stronger powers.)

Secondly, in some countries, the head of state may have some limited powers in relation to controversial legislation.

Also, the written constitutions of some countries enable their superior courts to challenge particular proposals as 'unconstitutional'. This power can also be used by citizens if the government is misusing its powers.

Another safeguard for citizens is that important matters such as human rights and a bill of rights may be incorporated into, or protected by the constitution.

Finally, many countries' constitutions require a 75 per cent vote in Parliament to change it, or a referendum of the people which requires a 75 per cent vote in favour of the change, in which case the Parliament has to act on that decision. The peoples' sovereignty is thus protected.

There is little doubt that the democratic rights of citizens here are being constantly eroded. Some examples include the Auckland Super City decisions, including the Auckland Council Act, which removed the rights of 1.4 million people to have a referendum on amalgamation, the Unitary Plan, and removal of traditional rights and procedures under the RMA; the Health & Disability Act of 2013; frequent avoidance of the parliamentary select committee process and use of "urgency" to pass bills before there can be any real consideration, public knowledge or feedback.

Now, the Government has proposed to force councils to integrate into 'super city' structures.

There is now urgency for some impartial commission to carefully evaluate the sort of constitution New Zealand could have, but this is unlikely to gain support from parliamentarians because most will want to continue with their largely unfettered power to pass whatever laws and regulations they feel like.

They certainly won't want to give back legitimate power to those whom they are supposed to represent.

Even if that view is wrong, and Parliament (under public pressure) did decide to set up a commission to write a draft constitution, it would need to be impartial and representative of a broad spectrum of views, and not hand-picked friends of the politicians.

Ideally, the selection and appointment of the commission needs to be put in the hands of a neutral, impartial person " either the Governor-General or the Chief Justice. That person should select a panel of advisers to propose appropriate people within New Zealand and probably a few from abroad to draft a constitution.

Once finalised, this would need to publicised in various ways for the public to learn about its intent and effects and how it will protect them and their descendants. It's a major task, but to ignore the need for action is to succumb eventually to the cumulative removal of all citizens' rights.