At the time of reviewing this particular instalment on constitutional change from Professor Palmer, freedom of speech as a principle was being debated in New Zealand. This was caused primarily by some visiting Canadians, whose provocative views had resulted in them being declined a public venue in Auckland.
Freedom of speech and assembly are not really part of this book on constitutional change in New Zealand. Not just because we all take these basic freedoms for granted, and there is actually an existing Bill of Rights, but because the book is essentially about changing the institutions of political decision-making in New Zealand, especially with regard to how Parliament operates. This seems to be based on the somewhat surprising notion that Parliamentary sovereignty is too broad, and the authors refer to the apparent ‘untrammelled’ or ‘uncontrolled’ rule of Parliament.
This is in fact the second instalment of this academic exercise in constitutional change. The first book by the authors laid out their new constitution and now, having sought submissions from the public and the legal experts, they are offering their amendments to the original proposal. So most of the chapters reflect on the issues that have been raised in this ongoing process of constitutional reflection. Indeed there is even a chapter full of quotes from a variety of people who made public submissions. These include a long quote from someone using very offensive language that should never have been accepted, especially because the person was given anonymity. There are also a number of photos of the authors with groups of students in self-congratulatory poses.
That is not to say that there aren’t some very substantial proposals being put forward here. These include replacing the Governor-General with a new head of state, and therefore a form of republicanism. The removal of the term ‘the Crown’ from the New Zealand constitution, and thus from the legal system, could have profound implications for the Treaty of Waitangi and claims related to it. Then there are aspects of the political process that the authors don’t like relating to elections and the role of Parliament. Changes here include having a fixed four year term for Parliament, and giving the right to vote to 16-year-olds, if not making voting compulsory as well. Perhaps most significant would be the idea of giving the judiciary the power to review legislation, and, if deemed unconstitutional, to declare it invalid.
This power was apparently already there, but now needs to be broadened. The authors make the point that the international trade agreement (TTPA) would have allowed for corporations to challenge legislation that offended them. However, the authors do not address the loss of economic sovereignty at all, especially during the late 1980s when Palmer was a key legislator. But they do assess the role of certain legal cases that help make their case. One being that High Court review undertaken on behalf of the anti-TPPA campaigner, Professor Kelsey, which highlighted how the Official Information Act was not being complied with. The authors are all in favour of more transparency in government, and enhanced roles for Parliamentary officers (such as the Auditor-General and the Ombudsman). Just as long as Parliament itself is not allowed to pass its Acts under urgency anymore, and thus ruin certain landmark pieces of legislation.
Reviewed by Simon Boyce
Towards Democratic Renewal – Ideas for Constitutional Change in New Zealand
by Geoffrey Palmer & Andrew Butler
Published by VUP