Translator: Ivana Krivokuća Reviewer: Peter van de Ven
Kia ora koutou.
It's a really great pleasure for me to talk to you tonight
about how we are governed, about constitutional change.
We are one of the world's oldest democracies,
but I think we need some democratic renewal.
I came to this university,
the very university where this talk is being recorded,
in 1960 to study law and politics,
and I became absolutely fascinated with how this country is governed.
I became so interested in it that I became a law professor,
and I've taught constitutional law in four countries.
I once taught it to American students in France,
but I taught them the Turkish Constitution.
Can you imagine that?
I later wrote a book called "Unbridled power?"
in which I said there was too much executive power in government
and that we needed electoral reform and we needed parliamentary reform.
We've had some, but not enough.
I then went into Parliament and managed to become a minister,
which many MPs want to do when they go there.
I became Minister of Justice, Attorney-General.
I became Leader of the House, Deputy Prime Minister,
and finally, Prime Minister.
When I left politics, I started practicing law in Wellington,
and I became President of the Law Commission,
so I've been lucky enough to see how the New Zealand government works
from many different points of view.
The conclusion that I reached was that while we do okay in New Zealand,
we could do much better, and we need to repair our Constitution.
I met Andrew Butler many years ago
when he arrived in New Zealand as a young Irish lawyer -
he's now a partner in Russell McVeagh - and we joined forces.
We wrote this book called "A constitution for Aotearoa New Zealand."
What it says is that we should have a written constitution,
a codified constitution that sets out the rules.
Andrew comes from Ireland; they have that sort of constitution there.
It is of great help.
Well, you know, what is a constitution?
A constitution is something that makes people go to sleep
if you talk about it.
(Laughter)
The important thing to remember about a constitution
is that it sets out the rules for the government,
and those rules have to be contained in institutions.
And those institutions will comprise a legislature -
that is a place that makes law; you can't do without law in a democracy.
And we have to have an executive,
someone who carries out the government on a day-to-day basis.
In New Zealand, that is the Cabinet and the public service.
You must also have a judiciary,
and the judiciary have to interpret the laws
because if the same people who made the law
both enforced it and adjudicated on it,
you'd have a perfect recipe for a dictatorship.
In a democracy, you need to divide the powers up.
So that is what we have endeavored to do in this book.
We have had 400 submissions. We got a website.
You can see the website on our logo. We want more submissions.
The submissions close on the 1st of December this year.
We are going to write a second book that sets out our revised ideas
about how the New Zealand constitution should work.
Because, you know, the New Zealand constitution is very unusual.
We are onе of three countries in the world
that do not have a written, codified constitution.
It's like riding a bike with no hands - you can easily fall off.
I think we often do. There have been plenty of policy blunders in New Zealand.
Think of the terrible mine disaster on the West Coast.
Think of leaky homes. Think of climate change.
Think of our polluted rivers.
All these things are governed by law.
All these laws are made by Parliament, and often they're made too quickly,
and our lawmaking and policymaking system needs to be improved.
Democracies are in some trouble in the West, these days.
We've had in the United Kingdom Brexit; they're not happy.
They've had a series of constitutional problems there.
They are one of the three countries
that don't have a written, codified constitution.
The other one is Israel, and the third one is us.
I don't think this sort of exceptionalism is necessarily proving its worth to us.
I also think that it's really important
that we actually stop and think a little bit
before we do things.
We've just had an election. It was quite exciting.
We had policies like blizzards coming down upon us
day after day from party after party,
and you couldn't figure out at the end of it what the result was going to be.
We'll get a government out of this; that's what an election is for.
The House of Representatives are the ones who choose the government
under our revised electoral system,
but you don't know what the policy is going to turn out like.
So what we ought to be doing is having democracy all year round,
seven days a week, all the time.
We shouldn't just be waiting to have it at election time.
At election time is when the voters have the most power,
but of course, we should have citizens
involved in the decisions all the time,
not just some of the time.
That means some profound changes.
We need to have deliberative democracy.
In a deliberative democracy, citizens are involved all the time.
Their views are sought.
They are consulted.
When plans are made for big decisions,
they are announced and people can see them
and think about them and make their views known.
One of the difficulties with our Parliament these days
is they spend so much time negotiating and talking with each other
that they forget about the public who they are supposed to be serving.
I really do think they need to be more outward looking,
and they need to take on board much more of what the public thinks about things
because one of the problems with both Brexit
and indeed what is going on in the United States
demonstrates that people have less faith in democracy that they used to.
They feel disconnected from it.
They don't feel the decisions are being made in their interest,
and it is, of course, very important in democracy.
If people don't have confidence in it,
you're going to have all sorts of problems,
and that's what's happening in Western countries,
and we're not immune from that.
We have to repair our democracy while we've got time.
We're not in this terrible difficulty they they're in in the UK
or the United States,
but we never want to get into that difficulty.
We need to pay attention to how we are governed,
and we need to do it better.
Now, one of the things we can do.
Well, the first thing we could do would be to educate people
about how the system works, because it's complicated.
And do you know that by 2023 there will be more people in New Zealand
of Asian ethnic origin than there are Maori in New Zealand?
You can't expect all the people who come here from overseas
to understand by osmosis how this system works.
They ought to be able to find out.
How do they find out? They look at the constitution.
Where do they find it? You can't find it.
(Laughter)
Why can't you find it? Because it isn't written down.
Where is it?
It's in a whole lot of different UK statutes and New Zealand statutes
and prerogative instruments.
Some of the biggest legal powers are contained in the letters patent
which create the office of Governor-General.
How many of you read the letters patent?
I bet there isn't anyone in this room who's read them.
Yet they're a part of our constitution.
The danger is, if people can't find out what the rules are,
they aren't going to take much part in the way that government works.
That is a serious difficulty that we have.
So what we need to do is to have more civics, better education.
We need to have citizenship education.
We need to be able to say to people, "This is how our government works.
You are a respected office holder in it because you're a voter."
Young people tend to be turned off by this system.
I found that out teaching advanced public law this year.
Why are they turned off?
Because they don't think it's in their interests.
They certainly don't think
the climate change policies are in their interests.
I think it's probably time to give 16-year-olds the vote,
so if we educated them properly at school and gave them the vote,
they'd vote always.
Our voting levels are not high enough,
and once you get a democracy where people don't care anymore,
you lose your democratic freedoms which have been hard won
over many centuries.
So we need to have a much more deliberative democracy
with much better education about how it works,
and the first way of doing that is to write the rules down
so people can see them.
Well, now, what would you put in the constitution?
We've made some proposals about that, and I'll just summarize them for you.
First of all, we want a codified constitution
that everyone can see in one, relatively short document
that sets out the basic rules about how power is used in a society,
in this society.
The second thing is,
we think that this constitution should be superior law.
That is to say, it's not like all the other statutes
that we have on the books that can be changed by a majority of one,
with diligent use of the urgency provisions
of the Standing Orders of the Parliament overnight.
That happens here.
It happened in 2013,
when the carers of people who are handicapped
fought through the courts to get a right to some money
to reimburse them for their caring.
After going through three levels of the legal system,
the government took it away using urgency in one day,
no select committee hearings at all.
They made it a matter of confidence and supply,
and the rights were gone, just like that.
That's not the way things should be done in a properly organized democracy.
On 37 occasions in the 26 years that we've had the Bill of Rights,
the Parliament has overruled it.
The Parliament should be bound by it, we say.
They shouldn't be able to take people's rights away
whenever they feel like it.
That's the second thing we would do.
We would make the constitution superior law,
and it would have the Bill of Rights in it.
We would also make the head of state a New Zealander.
We think the monarchy served New Zealand very well,
but we've got to the stage now
where we need our own head of state, our own identity.
We're not a colony as we started out; we're a self-reliant competent democracy.
We ought to stand on our own feet, forge our own identity,
in our own space in this world.
We need to do that.
We need also to limit the use of urgency in the Parliament.
We need to have more rule of law
by increasing the ability of the courts to rule on rights matters.
But we don't want to have an American Constitution here.
We do want to ensure that Parliament has the last word on all matters,
but to breach the constitution
only if it can raise a 75% majority in the House for it.
There are considerable protections in that.
There changes are important; they're not the only changes.
The Treaty of Waitangi is one of our most important documents.
The Treaty is one of the most difficult issues we've faced,
and we have to have a profound national conversation to sort that out.
Because it is really important.
I do say to you this:
that in New Zealand, by democratic methods,
by listening to people, by being tolerant,
by having a profound national conversation,
we can make our government work better.
We can do that. We should do that.
We should do it when we're not in a crisis,
so that we have time to sort it out.
Many constitutions are forged in times of crisis.
It's better not to do that.
So I urge all New Zealanders: think about your constitution.
Thank you.
(Applause)